| Chapter 1: | Introduction |
Similarly, human-rights lawyers Richard Zabel and James Benjamin, Jr., argue in their exhaustive white paper “In Pursuit of Justice, Prosecuting Terrorism Cases in the Federal Courts” that the criminal-justice system is capable of detaining and trying terrorists and that there is no need to create a regime of preventive detention.35 Former federal prosecutors Kenneth Roth and Kelly Anne Moore make the same argument.36
Conversely, Yoo devotes an entire chapter in War by Other Means to discussing the difficulties with protecting the nation’s military and intelligence secrets while still providing a fair trial for terrorists.37 Unlike Schulhofer, Serrin, Zabel, Benjamin, Roth, and Moore—who conclude that most, if not all, terrorism prosecutions should occur in federal court, perhaps with modifications to existing statutes—Yoo maintains that separate military commissions are essential. As is explained later in chapter 7, several prominent individuals agree with Yoo and argue that the criminal-justice system is inadequate for trying and detaining terrorists. Whatever the ultimate conclusions about where terrorism suspects should be tried, there is abundant literature discussing the difficulties with trying terrorism suspects in federal court.38 This stands in stark contrast to the classified nature of much of the literature dealing with the effectiveness of interrogation and incapacitation.
In sum, the subliterature discussing the rationales for preventive detention is varied depending on which rationale is being analyzed. While there is more literature discussing the inherent difficulties in trying terrorism suspects in federal court, there is comparatively less literature discussing interrogation of intelligence assets and general incapacitation, which are the primary justifications for the Bush administration’s enemy-combatant policy. A challenge with the existing literature is the inability to thoroughly assess the validity of these assertions. Nonetheless, this challenge can be somewhat mitigated by relying on bipartisan government reports, such as the 9/11 Commission Report, which discuss the results of interrogation, and on the ISB report, which discusses the challenges of interrogation.