The Status Quo Bias and Counterterrorism Detention
Gregory S. McNeal
Pepperdine University School of Law; Pepperdine University - School of Public Policy
July 3, 2011
Northwestern University Journal of Criminal Law & Criminology, Vol. 101, 2011
Pepperdine University Legal Studies Research Paper No. 2012/5
Counterterrorism detention policy in the United States is a mess. Commentators on both sides of the political spectrum have decried the U.S. approach. Those on the left have criticized the arbitrary and unfair nature of U.S. policy; they argue that detention policy has unfairly trampled on the rights of individuals, producing results that are inconsistent and, perhaps, counterproductive, especially in the eyes of U.S. allies and the Muslim world. Others have approached this question from a security perspective, decrying the granting of privileges to those who fail to follow the rules of civilized nations yet then demand the protection of those nation’s rules upon capture. Those critics argue that our detention policies have unnecessarily endangered American security and must be toughened. Regardless of which argument is correct, both sides seem to agree that the status quo is untenable.
In light of these critiques, what accounts for the lack of reform? One way of understanding the dysfunction inherent in detention policy is by seeing detention policy as a fixed policy domain mired in the status quo. Policy advocates have created an information-induced equilibrium where the costs of reform exceed the benefits of the status quo. The status quo is characterized by (1) a hyper-political discourse about counterterrorism detention policy that has led to (2) the elevation of politics over policy and (3) questions about the legitimacy of counterterrorism detention. When these factors are coupled with uncertainty about what change might entail, the status quo becomes a powerful force, characterized by a lack of focused attention to issues, and an inability to justify change.
In this symposium essay I will first analyze the policy discourse surrounding detention policy. Next, I will describe the current state of affairs in detention policy, describing the uncertainty in the system and the calls for reform. Finally, I will make the case for pessimism, arguing that reform is unlikely due to the polarized nature of the counterterrorism detention policy debate and the strength of the status quo.
Number of Pages in PDF File: 31
Keywords: status quo bias, detention, counterterrorism, guantanamo, politics, reform, NDAA, security, liberty, recidivism
JEL Classification: H56,k33Accepted Paper Series
Date posted: July 5, 2011 ; Last revised: April 6, 2012
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