Front Cover

pdf iconDownload PDF
 

Copyright Information

pdf iconDownload PDF
 

Table of Contents

pdf iconDownload PDF

p. v

Acknowledgments

pdf iconDownload PDF

pp. vii-x

read more

Introduction

pdf iconDownload PDF

pp. 1-12

The greatest trick the Devil ever pulled was convincing the world that he didn’t exist,” says the low-grade con man to the arrogant customs agent in the 1995 movie The Usual Suspects, speaking of the great criminal mastermind Keyser Söze. The supposedly crack customs agent Kujan listens with patronizing incredulity to stories of the untrackable, invincible Söze, convinced that he knows the truth and that over time he can get the con man before him to spill the beans.

read more

Current U.S. Policy

pdf iconDownload PDF

pp. 13-32

By the end of Barack Obama’s first year in office, the new president’s promise to close Guantánamo had become an albatross around his neck. In numerical terms, at least, he had made relatively little progress toward emptying the facility. His muchvaunted order to bring detainees to trial had produced only a single indictment in federal court. Military commission proceedings moved forward at the pace of a glacier—and, as they always had, involved only a small percentage of detainees.

read more

The Mythology and Reality of Preventive Detention in the United States

pdf iconDownload PDF

pp. 33-58

It is an article of faith in our discourse on terrorism that preventive detention runs counter to American values and law. That meme has become standard among civil liberties and human rights groups and in a great deal of legal scholarship, which treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong constitutional norm that holds that government locks up citizens only as criminal punishment, not because of mere fear of their future acts.

read more

The Emerging Law of Detention

pdf iconDownload PDF

pp. 59-93

Its serial failures of candor with respect to detention unfortunately cannot relieve the United States of the burden of detention. Consequently, they also will not relieve it of the need for various systems of rules, norms, and procedures to handle the various types of people that U.S. forces and their proxies will end up capturing. The political system’s refusal to engage seriously over the question simply delegates the foundational decisions regarding the contours of those systems to other actors.

read more

The Problems That Denial Cannot Solve

pdf iconDownload PDF

pp. 94-110

Building a detention policy on a premise of obfuscation and denial is a project beset with problems. It both begins with and flatters a myth: that the United States does not do preventive detention. By flattering that myth, it both constrains and delegitimizes policymaking that greater candor would to some degree liberate. Because the nature of the project precludes any direct discussion of the contours of a reasonable detention system, it effectively delegates policymaking to bodies that should not be making U.S. military and national security policy—from corrupt and imperfect foreign proxy governments to domestic courts.

read more

The Case for Candor

pdf iconDownload PDF

pp. 111-138

No one seriously defends the current array of U.S. detention policies. The government, of course, defends individual policies against court challenges, but it also has fiercely resisted other elements of current policy prior to their judicial imposition. Human rights groups and lawyers for detainees admire some of the current elements of the array and challenge others as affronts to the rule of law. A great many people defend current policies as a tactical matter, believing that to open them up to renegotiation would make the situation worse than it already is.

read more

Conclusion

pdf iconDownload PDF

pp. 139-146

In both liberal and conservatives circles, a certain confusion reigns regarding whether fundamentally the Obama administration’s legal policies in counterterrorism matters reflect continuity with or change from those of the Bush administration. The confusion gives rise to a kind of dualism in the way that both broad political movements talk about the question.

Notes

pdf iconDownload PDF

pp. 147-152

Index

pdf iconDownload PDF

pp. 153-176

Back Cover

pdf iconDownload PDF