| Chapter 1: | Introduction |
Nonetheless, designating U.S. persons as enemy combatants and holding them incommunicado and indefinitely for a war on terror that may never end may ultimately undermine the United States’ objectives. Assuming there is genuine need for preventive detention as a tool in the war on terror, and assuming a regime can be created that is lawful, there remains the following underlying question of sound policy: to what extent can the United States create a system of preventive detention that is perceived as fair, applied consistently, and narrowly tailored to meet its objectives. A significant negative repercussion to the enemy-combatant policy is that other democratic countries may be hesitant to cooperate with the United States in pursuing terrorist suspects due to displeasure at the United States’ preventive-detention policies. Not surprisingly, the enemy-combatant policy has sparked criticism from individuals across the political spectrum.
While it appears that the Bush administration has only employed its enemy-combatant policy sparingly to three U.S. persons (although it has threatened to use it numerous more times), its implications are far-reaching, especially if another terrorist attack occurs rivaling 9/11. As Yale law professor Bruce Ackerman notes, “These cases [Padilla and Hamdi] present a unique threat to the survival of the republic. If the president can throw citizens into solitary confinement for years on end, our democracy is in very deep trouble.”20 Despite the implications of the enemy-combatant policy—or perhaps because of them—the administration has not repudiated its policy. Given that the war on terror is unlikely to end soon, it would be imprudent to wait for the Supreme Court to rule before creating a more sustainable, thought-out approach to preventive detention that is consistent with America’s principles of due process. Furthermore, given the upcoming change in administration, it is an opportune time to think through the complex legal issues now and to propose a better solution to the new administration.