Preventive Detention in American Theory and Practice

Coauthored with Adam Klein. Harvard National Security Journal, January 18, 2011

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups1 and in a great deal of legal scholarship.2 It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from this norm, an institutionalization of the aberration that the detention practices of the Bush and Obama years have represented.


The more careful commentators acknowledge that the rule has exceptions — sometimes even many of them.3 But they describe these exceptions as narrow and limited, deviations from a generally strong rule that the American system tolerates to accommodate exceptional circumstances.

The trouble with such civic mythology is that it is, ultimately, an inaccurate description of past practice, and thus a misleading indicator of the theory on which such practice rested.4 Our purpose in this paper is to describe just how mythological this particular civic myth is — indeed, to show that nearly every aspect of it is false: Preventive detention is not prohibited by U.S. law or especially frowned upon in tradition or practice. The circumstances in which it arises are not isolated exceptions to a strong rule against it; rather, they are relatively frequent. The federal government and all 50 states together possess a wide range of statutory preventive detention regimes that are frequently used, many of which provoke little social or legal controversy.

To read the full paper, click here.

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