The Why and How of Preventive Detention in the War on Terror

Thomas Cooley Law Review, Summer 2009

77 Pages Posted: 26 Feb 2009 Last revised: 3 Mar 2009

Stephanie Cooper Blum

Department of Homeland Security ; Michigan State University

Date Written: February 25, 2009

Abstract

After September 11, 2001, the Bush Administration decided to detain certain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely and incommunicado for the duration of the war on terror. The rationale behind this system of preventive detention was to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges were not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the Bush Administration's approach was reactionary, illogical, and probably unconstitutional. This article explores the underlying rationales for preventive detention as a tool in this war on terror and analyzes the legal obstacles to creating a preventive-detention regime. In the end, it offers some overarching principles that could be used by Congress or President Obama's newly-created Special Inter-Agency Task Force to enact a comprehensive preventive-detention regime for U.S persons and foreign nationals. While establishing a lawful preventive-detention regime for terrorist suspects is challenging, there appears to be room for enacting such a regime if Congress sets forth explicit legislation allowing for preventive detention and the suspects are provided a meaningful opportunity to challenge the underlying evidence.

Suggested Citation

Blum, Stephanie Cooper, The Why and How of Preventive Detention in the War on Terror (February 25, 2009). Thomas Cooley Law Review, Summer 2009 . Available at SSRN: https://ssrn.com/abstract=1349414

Stephanie Cooper Blum (Contact Author)

Department of Homeland Security ( email )

United States

Michigan State University

Agriculture Hall
East Lansing, MI 48824-1122
United States

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