We're All Experts Now: A Security Case Against Security Detention

Abstract

While a range of U.S. and international law scholars have criticized the United States' current approach to counterterrorism detention operations, some of the same voices are now recommending the development of a more formally sanctioned 'preventive' regime for detaining terrorist suspects. With a view both to resolving current dilemmas like the status of detainees held at the U.S. Naval Base at Guantanamo Bay, and to meeting the anticipated ongoing security interests of the United States, scholars like Jack Goldsmith, Robert Chesney, and others have emphasized the legitimate national interest in the "preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act." And indeed, neither U.S. nor international law imposes a categorical prohibition against states' depriving individuals of their liberty for reasons other than their having committing a criminal offense. Yet even if it were possible to construct a preventive detention regime for terrorist suspects that satisfies U.S. and international procedural requirements, this essay suggests that it is not at all clear such a scheme would advance the security interests its proponents identify. Ultimately, as this essay explores, legal scholarship's current attraction to 'preventive' detention hinges as much or more on questions of national security policy than on questions of law.