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 going forward. 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." This essay reviews the basis for the current interest in "preventive" detention regimes, and considers whether such a program is consistent with effective U.S. counterterrorism strategy writ large. The essay concludes that even if it were possible to construct a preventive detention regime that satisfies U.S. and international legal restrictions, it is not at all clear such a scheme would advance the security interest its proponents identify.
The legal lesson that emerges from the articles in this volume--sometimes express, sometimes implied--is that there is no categorical international law prohibition of administrative detention. Perhaps better put, there is no categorical prohibition against states' depriving individuals of liberty for reasons other than their having committed criminal offenses or engaged in armed conflict. Such a proposition could hardly be doubted. In the United States, for example, the federal government operates a vast and vigorous program of immigration detention. The sovereign states operate their own civil commitment regimes, which generally authorize them to detain, subject to various procedural restrictions, those who by reason of mental illness or incapacity are found to pose a danger to themselves or others. The U.S. Supreme Court consistently has embraced such detention systems, provided that the systems comply with a set of procedural safeguards far more detailed--and in some respects more exacting--than anything set forth expressly in international human rights or humanitarian law. (1)
Such detention regimes, of course, are not without controversy. What constitutes fair process in non-criminal detention systems remains the subject of steady litigation on both domestic and international law grounds. There are complex questions regarding what circumstances justify detention and how long a detainee may be permissibly held. (2) But these issues exist to one degree or another, no matter what kind of detention regime a state has in place. The task of determining what process is due is a fraught one, and inescapable, whether the task falls to a traditional Article III court, an executive branch administrative court, or some hybrid tribunal created by the judicial, executive, or legislative body.
Given the general acceptability of non-criminal detention for purposes of regulating immigration and the like, if a state chooses to construct a new detention regime with a rigorous set of procedures to safeguard against arbitrariness, then why should one object to such a system for the plausibly sensible, separate purpose of achieving "the legitimate 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"? (3) This essay is devoted to considering that question.
It is important to note, however, that the answer offered here rums far more on international security policy than on international security law. It is a chronic feature of courts' and lawyers' writing in the realm of security matters to begin by disclaiming any expertise in the area, thereby excluding from their deliberation all but the most passing consideration of whether a particular security policy is a good idea, or whether it is even rationally related to a legitimate state interest. As Eric Posner and Adrian Vermeule have explained:
Whether the government justifiably detains al Qaeda suspects without charging and trying them depends to a large extent on the magnitude of the threat, the importance of secrecy, and other factors that few people outside of government are in a position to evaluate.... [W]e have no opinion about the merits of particular security measures adopted after 9/11.... Our point is that we are not well positioned to judge the merits of those policies, nor are the civil libertarian critics of those policies. (4) Posner and Vermeule assert that they do not know enough about security decisions regarding detention or the use of force to evaluate whether such decisions are good or bad. Yet they are able to determine that: (1) good responses are necessarily "swift, vigorous, and secretive"; (2) power should be concentrated in an emergency and should "move up from the states to the federal government"; (3) limiting liberties will reliably enhance security; and (4) it is not possible for anyone (presumably including the real experts) to evaluate whether decisions, when made in an emergency, are good or bad. (5) Such self-refuting positions help ensure that the merits of such programs remain assumed rather than explained.
Posner and Vermeule are hardly alone in this approach. When the U.S. Supreme Court considered in Johnson v. Eisentrager whether non-citizens held in U.S. military custody abroad had a right to habeas corpus, the Court peppered its opinion with reasoning about the security costs that would attend an affirmative finding. (6) Of course, if the Eisentrager Court had the functional competence to determine as a matter of fact that review of military detention "would hamper the war effort and bring aid and comfort to the enemy[, and] ... would diminish the prestige of [the U.S.'s] commanders, not only with enemies but with wavering neutrals," (7) then it would be surprising to assume it lacks the institutional competence to evaluate similar facts and conclude under other circumstances that the exercise of habeas would not diminish the prestige of command, or that wavering potential terrorists would be most galvanized by the absence of judicial review. (8) Either way, there can be little doubt that even as lawyers deny their ability to consider such matters, legal judgments in this field are rife with independent affirmative assertions about what is necessary to combat a threat in theory and what works in practice.
To be clear, there is utility in analyses of administrative detention that do not engage in their own assessment of security effectiveness. Many free pieces reasonably assume a particular state of affairs--for example, that states are exercising such powers already--and seek to understand the legal consequences under those circumstances. It is a great service to identify the best procedural practices for states that choose to pursue a regime of security detention. (9) It is equally a service to look for legitimate legal compromise on such questions in states struggling to correct the failings of security detention practices extant. (10) But it is no service to endorse the lasting adoption of such a regime, even one with sterling procedural credentials, purely as the least-worst alternative chosen from an existing array of policies that may or may not have any merit as a matter of counterterrorism security. Put differently, it is not enough to endorse administrative security detention because it is, for example, easier to detain more people that way than under the traditional criminal or military detention. One must also explain why it will be a net help in preventing terrorism. Those who advocate adopting a "third-way" security system have not effectively made this case. Indeed, as discussed below, there remain reasons to believe such a regime would do U.S. national security more harm than good.
COUNTERTERRORISM DETENTION IN CONTEXT
When it comes to discussions of the task of preventing catastrophic terrorist attacks, the contrast between legal literature and security literature is striking. Based on the legal scholarship, one could hardly be blamed for concluding that the principal weapons any state uses to prevent terrorist attacks are custodial detention and coercive interrogation. If a state fails to detain the right person or fails to elicit the essential information, the argument goes, one may as well give up all hope of imagining we can avoid losing a city (or more) to terrorist attack. Not that we legal scholars are entirely at fault; such practices are certainly at the heart of legal debates over terrorism prevention.
But as prevalent as detention and interrogation topics are in the legal scholarship, they are as noticeable for their absence in security scholarship. The principal recommendations of the vast majority of post-9/11 reports in the security literature that address prevention of or response to a nuclear terrorist attack propose rights-neutral measures entirely unrelated to detention and interrogation. (11) For example, experts generally agree that efforts to prevent nuclear terrorism must centrally include efforts to prevent illicit trafficking or theft from one of the known facilities capable of producing fissile material, or known stockpiles of such material. As a result, the wide assortment of official and expert recommendations regarding the prevention of nuclear proliferation (other than those related to bureaucratic reorganization) place top priority on urging greater international cooperative efforts to inventory, secure, deter, and track the disposition of these materials. (12)
The foregoing is not intended to suggest that detention and interrogation never matter in the prevention of terrorism. Rather, it is to place the discussion of...