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33 2 The Mythology and Reality of Preventive Detention in the United States 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. According to this view, any formalized administrative detention regime would be a radical departure from that norm, an institutionalization in American law of the aberration that the detention practices of the Bush years represented. The more careful commentators pause here and acknowledge an uncomfortable truth: that the rule in question seems to have some exceptions. But, they continue, those exceptions are narrow, limited deviations from a generally strong rule, tolerated only to accommodate truly exceptional circumstances. I could quote hundreds of examples of this view, for it has become a standard talking point among human rights activists, This chapter is adapted from “Preventive Detention in American Practice and Theory” (forthcoming in the Harvard National Security Journal), an article that I wrote with a remarkable young scholar named Adam Klein. The research discussed in this chapter, as well as some of the text, reflects his work as well as mine. 02-0491-1 ch2.indd 33 10/14/10 6:11 PM 34   Detention and Denial detainee advocates, and liberal commentators. I will satisfy myself, however, with a single, personal example, which illustrates both the full scope of the meme’s content and the function that it plays in the current debate. In 2009, a colleague and I released a paper proposing a model law for certain detentions. The paper attracted considerable attention when National Public Radio reported that members of the new administration were studying it closely. In the flurry of coverage, one news outlet sought comment from New York University scholar David Golove, a prominent international law expert. “One of the core features of liberal democracy is precisely that preventive detention is not allowed,” he told the Washington Independent. “The struggle for constitutional liberty is in many ways a struggle against preventive detention.” He dismissed the model law—whose terms I summarize in chapter 5—as “treat[ing] that whole problem incredibly cavalierly.” While the wartime detention model has “deep historical roots,” he said, other forms of preventive detention in American law are “carved out exceptions based on very specific rationales. Every time we add a new one we’re breaking down the whole idea that preventive detention is problematic in a liberal country.”1 Notice in particular how Golove invokes the entire weight of the liberal tradition to delegitimize the discussion of a preventive detention law for terrorism and how he also insists that the exceptions to the strong rule that he cites against preventive detention are narrow. To the extent that this belief prevails, it completely paralyzes any discussion of the possibility of crafting new detention rules for new circumstances. This sort of civic mythology has a problem beyond the political paralysis that it induces: it is wrong. Indeed, nearly every aspect of it is false. Preventive detention is not prohibited by U.S. law or especially frowned upon in tradition or in practice. The circumstances under which federal and state law authorize it are not isolated exceptions to a strong rule against it; they arise with relative frequency. The federal government and all fifty states 02-0491-1 ch2.indd 34 10/14/10 6:11 PM The Mythology and Reality of Preventive Detention   35 have statutory preventive detention regimes that are frequently used, often with little social or legal controversy. The diverse statutes and regimes authorizing the preventive locking up of an individual not convicted of a crime to prevent that person from causing harm range widely in purpose and subject matter: —Wartime detention powers cover not only lawful and unlawful enemy combatants but also the civilian nationals of countries against which the United States finds itself in a state of armed conflict. —The Constitution’s suspension clause specifically contemplates that Congress might in a crisis suspend normal constitutional presumptions concerning detention—a power that has been invoked several times in U.S. history. —Detention authorities ancillary to the criminal justice system include both pretrial detention and the detention...


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