The Necessary Evil of Preventive Detention in the War on Terror: A Plan for a More Moderate and Sustainable Solution
Powered By Xquantum

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

Read
image Next

This is a limited free preview of this book. Please buy full access.

Yet, as Tom Malinowski, Washington advocacy director for Human Rights Watch, informed the U.S. Senate Judiciary Committee in June 2008, such examples were “repudiated as mistaken experiments that violated America’s commitment to rule of law.”3

After September 11, 2001, the Bush administration created its own version of “preventive detention” of U.S. citizens, legal residents, and foreign nationals to deal with the terrorist threat posed by al Qaeda. Under President Bush’s version of preventive detention, the executive branch has the power to unilaterally label an individual caught anywhere in the world as an “enemy combatant,” and preventively detain that individual incommunicado without criminal charges and indefinitely for purposes of interrogation and incapacitation.

On July 21, 2008—approximately seven years after 9/11—Attorney General Michael Mukasey argued in a speech before the American Enterprise Institute that preventive detention of terrorist suspects is an essential component of prosecuting this war on terror:

The United States has every right to capture and detain enemy combatants in this conflict, and need not simply release them to the battlefield….We have every right to prevent them from returning to kill our troops or those fighting with us, and to target innocent civilians. And this detention often yields valuable intelligence about the intentions, organization, operations, and tactics of our enemy. In short, detaining dangerous enemy combatants is lawful, and makes our Nation safer.
[T]o suggest that the government must charge detainees with crimes or release them is to seriously misunderstand the principal reasons why we detain enemy combatants in the first place: it has to do with self-protection, because these are dangerous people who pose threats to our citizens and to our soldiers.4

With a new administration taking the reigns in Washington, one has to wonder whether President Bush’s version of preventive detention (e.g., the enemy-combatant policy) will ultimately be repudiated as a mistaken experiment that needlessly sacrificed liberty and America’s reputation for questionable security gains, or whether it or some alternative method of preventive detention will become part of America’s legal landscape for the indefinite future.