| Chapter 1: | Introduction |
While articles, legal decisions, and books have addressed aspects of these questions (especially questions relating to the legality and policy implications of preventive detention), there does not appear to be a body of literature that examines all these questions while also comparing and contrasting the alternative approaches advocated for preventive detention under a methodology that includes fundamental democratic principles.
Before analyzing the substance of the literature, it is necessary to briefly describe the authors and kinds of literature that exist to answer these questions. Except for the myriad of newpaper editorials lam-basting the enemy-combatant policy, most of the scholarly literature addressing preventive detention as a tool in the war on terror is written by lawyers who are law professors, judges, or policy makers. This fact should come as little surprise because preventive detention is fundamentally a legal question implicating the Fourth, Fifth, and Sixth Amendments of the Constitution, Articles I and II of the Constitution, the writ of habeas corpus, and the Non-Detention Act of 1971, which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”21 Therefore, most of the literature relevant to preventive detention as a tool in the war on terror consists of law-review articles, legal decisions, books addressing civil liberties, and reports compiled by think tanks or policy organizations.
Because no body of literature addresses all aspects of the previously identified questions concerning preventive detention, this review divides the literature into subliterature focusing on (1) the rationales for preventive detention, (2) the lawfulness of preventive detention, (3) other countries’ approaches to preventive detention, and (4) alternative ideas to the current enemy-combatant policy.