The Necessary Evil of Preventive Detention in the War on Terror: A Plan for a More Moderate and Sustainable Solution
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The next president, after all, will probably not wish to conduct preventive detentions based on ad hoc assertions of executive power. And if he is so foolish as to try, as Blum correctly notes, the courts are unlikely to tolerate the effort. Seven years after the first detainees came into American custody, therefore, he will face a reality that should have been obvious to the Bush administration in years immediately following the attacks: while the courts may tolerate detentions in the absence of criminal charges, they will likely not tolerate detentions in the absence of specific and clear congressional authorization and vigorous due process and judicial review. Designing that process is one of the central legal policy challenges of our time. Even those who do not accept Blum’s conclusions concerning what it should look like will benefit from her non-doctrinaire and thoughtful treatment of an issue that is, no matter how hard we pretend otherwise, not going away any time soon.

*Benjamin Wittes is a Fellow and Research Director in Public Law at the Brookings Institution and the author of Law and the Long War: The Future of Justice in the Age of Terror (Penguin Press, 2008). He is a member of the Hoover Institution Task Force on National Security and Law.