The Necessary Evil of Preventive Detention in the War on Terror: ...

In sum, there is an abundant amount of literature—whether legal decisions, law-review articles, or books—that comprehensively addresses the legality of preventive detention. While some authors believe that the enemy-combatant policy is legal, others do not. At first blush, there do not appear to be any inherent weaknesses with this body of literature addressing the legality of preventive detention. Yet, upon scrutiny, most of the literature addressing the legality of preventive detention serves either to criticize the current enemy-combatant policy or to justify it without creatively looking at how the law can be fashioned to create alternative preventive-detention regimes consistent with due-process standards.

Israel’s and Britain’s Approaches to Preventive Detention

As is discussed in chapter 5, Israel and Britain have been combating terrorism for decades, and each country has created administrative or preventive-detention regimes to deal with incapacitation and interrogation of terrorist suspects. Hence, the literature discussing how these countries deal with preventive detention provides a useful perspective to compare to the current enemy-combatant approach. In 2004 Professor Schulhofer wrote a law-review article entitled “Checks and Balances in Wartime: American, British and Israeli Experiences” in which he compares the preventive-detention regimes of these three countries.⁴⁵ While his article provides an abundant amount of detail on the British and Israeli preventive-detention regimes, his ultimate conclusion is that America’s current enemy-combatant policy bypasses judicial review and checks and balances that have played a role in Britain’s and Israel’s regimes. Despite this article doing a formidable job of what it attests to do (compare the three countries’ approaches to preventive detention), it does not provide an alternative approach to the enemy-combatant policy beyond generally criticizing the current approach.

Alternative Approaches to Preventive Detention

Many individuals from across the political spectrum have criticized the administration’s enemy-combatant policy and have suggested alternative ways to create preventive-detention regimes during this war on terror.⁴⁶