Out of the Shadows: Preventive Detention, Suspected Terrorists, and War

Abstract

The United States does not have a statute authorizing preventive detention of suspected terrorists without charge. Some consider that irresponsible, as it is not difficult to imagine circumstances in which the government might want to detain a suspected al Qaeda operative, but not be prepared to file charges in open court as required for a criminal prosecution. The government may have learned of the individual from a confidential or foreign-government source that it cannot publicly disclose, or from an ongoing investigation. It may lack sufficient evidence to convict beyond a reasonable doubt, but have substantial grounds to believe that the individual was actively engaged in armed conflict for al Qaeda. The disclosures necessary for a public trial might seriously compromise the military struggle against the Taliban and al Qaeda. U.S. law has no formal statutory mechanism by which the government could detain such a person. Some have suggested that this is a potentially profound defect in our national security armature.