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

Under the Third Geneva Convention of 1949, prisoners of war (POWs) cannot be interrogated. Rather, they are required to provide only “surname, first names and rank, date of birth, and army, regimental, personal or serial number.” In fact, “[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever.”¹² By automatically declaring Taliban and al Qaeda operatives as “unlawful” POWs, the administration reasoned they could be subjected to interrogation. In August 2002, Jay Bybee, the then assistant attorney general in the Office of Legal Counsel, sent President Bush a memorandum stating that “[a]s commander-in-chief, the President has constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.”¹³ As law professor Howard Ball observes, “The Administration has offered one fundamental rationale for such treatment [designations of enemy combatants]: the acquisition of actionable intelligence.”¹⁴

In addition to the need for information, the administration argues that its enemy-combatant policy is necessary to incapacitate terrorists so they do not return to the battlefield. Yet if the battlefield includes the United States, and if the war is indefinite, the implication of incapacitation as a rationale for preventive detention is staggering. Essentially, under the enemy-combatant policy, the executive branch can unilaterally designate any U.S. person in the United States as an enemy combatant and can hold that individual incommunicado, indefinitely, and with no criminal charges for the purposes of coercive interrogation and incapacitation. Furthermore, as will be explained in chapter 2, the chance of detaining an innocent person seems high if terrorists purposely try to blend into the population. As journalist Benjamin Wittes and attorney Mark Gitenstein observe,