This is a limited free preview of this book. Please buy full access.
Against this intellectual backdrop, it takes a certain courage to remind us that the problem that gave rise to preventive detention of terrorist suspects by American forces is not, in fact, going away. We have not seen the last terrorist suspect who requires long-term incapacitation or immediate interrogation yet against whom criminal charges would be difficult. We have not seen the last detainee too dangerous to set free yet against whom all evidence is either classified or tainted by the circumstances of its collection. We have not, to put it bluntly, succeeded in willing away the profound clash between our needs and our values that September 11 brought so vividly to our attention. And as a result of our effort to do so, we have failed utterly to define a viable approach to a problem with which we will struggle for many years to come.
In this volume, Stephanie Cooper Blum stares in the face the necessity of preventive detention and offers an approach—a well-thought-out, careful approach—that is more measured and tender with liberty than the approach of the past seven years. On the face of things, Blum takes on a relatively small corner of the detention problem: how to handle terrorist suspects detained domestically, rather than those apprehended and held overseas. But her analysis is sufficiently rich that it has resonance beyond the three suspects—Yaser Hamdi, Jose Padilla, and Ali Saleh Kahlah al-Marri—to whom it most obviously pertains. Blum rejects the expansive detention theories under which the Bush administration locked up those it branded “enemy combatants,” but she does not take that extra step that too many commentators have blithely taken: rejecting all preventive detention. Rather, she carefully examines alternative justifications for administration detention and foreign models for it. She analyzes the varying approaches to the problem put forth by a range of commentators, and she makes mature judgments about the form preventive detention should take and the weight it can and cannot bear.
Many readers will disagree with these judgments. Some will argue that she overestimates the executive’s need for locking people up without criminal charges, others that the roadblocks she would erect in the name of due process will hobble the president in moments of extreme crisis. But this is the debate we need to have—one that is concrete, honest about the costs and benefits of the choices on the table, and overtly legislative in character.