The necessary evil of preventive detention: a plan for a more moderate and sustainable solution
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Authors
Blum, Stephanie, J.D.
Subjects
Preventive detention
Enemy Combatant
Unlawful Combatant
National Security Court
Enemy Combatant
Unlawful Combatant
National Security Court
Advisors
Date of Issue
2008-07
Date
Publisher
Monterey, CA; Naval Postgraduate School
Language
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 is to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges are not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the current Administration's approach has been reactionary, illogical, and probably unconstitutional. This paper explores the underlying rationales for preventive detention as a tool in this war on terror; analyzes the legal obstacles to creating a preventive detention regime; discusses how Israel and Britain have dealt with incapacitation and interrogation of terrorists; and compares several alternative ideas to the Administration's enemy combatant policy under a methodology that looks at questions of lawfulness, the balance between liberty and security, and institutional efficiency. In the end, this paper recommends using the Foreign Intelligence Surveillance Court to monitor a narrow regime of preventive detention only to be used under certain prescribed circumstances where interrogation and/or incapacitation are the justifications.
Type
Technical Report
Description
Series/Report No
Department
Identifiers
NPS Report Number
NPS-NS-08-003
Sponsors
Funding
Format
viii, 230 p.: ill.;28 cm.
Citation
Distribution Statement
Approved for public release; distribution is unlimited.