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

As journalist Benjamin Wittes writes in Law and the Long War, “With the exception of battlefield killing, no action the government takes in this conflict more impinges on human freedom than does long-term incarceration.”² With the election of a new president, it is perhaps time to focus less on debating and more on actually enacting a legislative scheme that can finally—after seven years—address preventive detention of terrorist suspects. As such, this book recommends a concrete solution to the new administration.

Problem Statement

Status Quo

One tool in the current war on terror involves the Bush administration’s labeling of alleged terrorists as enemy combatants and detaining them indefinitely, without access to counsel, and without having to file any criminal charges. This enemy-combatant policy is really an ad hoc system of preventive detention whereby U.S. citizens or legal residents (hereafter U.S. persons) are detained against their will without the filing of criminal charges for the purposes of incapacitation and interrogation. While the Bush administration has mostly applied its enemy-combatant policy to foreign nationals captured overseas (e.g., aliens detained at Guantanamo Bay)—and this book addresses those issues—for purposes of scope, this book primarily focuses on the enemy-combatant policy as it applies to U.S. persons who are being detained within the United States.³

Immediately after September 11, 2001, 762 aliens were arrested in connection with the investigation of the 9/11 attacks.⁴ Each detainee was held until specifically cleared by the FBI of any connection to terrorist activities. Most of these individuals were ultimately charged with violating immigration law, such as remaining in the United States after the expiration of their visas or entering the United States illegally. While this “hold until cleared” policy was the administration’s first approach to preventive detention, it only concerned aliens and not U.S. citizens. For citizens, the administration initially used material-witness warrants under the U.S. Code 18, section 3144.