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

Yet, significantly, after this ruling, the administration did not provide Hamdi a meaningful opportunity to challenge his designation as an enemy combatant. Rather, in October 2004, the government released Hamdi to Saudi Arabia after it determined that he no longer posed a threat to the United States, thereby undermining—to some extent—the administration’s rationale of needing to detain this dangerous individual so he would not return to the battlefield.³² Nonetheless, there is evidence to suggest that al Qaeda detainees who have been released have returned to the battlefield.³³ However, as with the literature on interrogation, it is hard to assess the accuracy of incapacitation as a rationale for preventive detention when the executive contains the information, which is largely classified or not able to be challenged in a court of law, such as the Mobbs declaration, which is based on hearsay from Northern Alliance members.

A third plausible justification for preventive detention could be difficulties with trying terrorist suspects in Article III courts, although, as is explained in chapter 3, this rationale is more concerned with where terrorist suspects are to be tried as opposed to whether they need to be preventively detained. This is the weakest of the plausible reasons for preventive detention, yet it has spawned the most amount of literature. Evidence establishing individuals as terrorists may not be able to be produced in a federal court without disclosing clandestine intelligence assets, and/or there may not be enough evidence to obtain a conviction beyond a reasonable doubt. Serrin Turner, associate counsel for the Liberty & National Security Project at the Brennan Center for Justice at NYU School of Law, and Stephen Schulhofer, law professor at NYU, have addressed these questions in an article entitled The Secrecy Problems in Terrorism Trials.³⁴ While their focus is not on creating a preventive-detention regime per se, but rather on trying terrorism suspects in federal courts as opposed to military tribunals, their article sheds important light on the challenges and complications with using current statutes and federal courts to handle terrorism suspects.