Preventive Detention in a Different Kind of War

July 7, 2009

Preventive detention is a hotly debated
topic right now. The media (old and new) is abuzz with controversy over
the President's plan to seek legislation or an executive order
authorizing the indefinite detention of suspected terrorists without
charge. But the Supreme Court has acknowledged that it's permissible to
detain enemy "combatants" in a war for the duration of hostilities, and
Congress has declared war, in so many words, on Al Qaeda and the
Taliban. So why is the idea still so controversial?

I
think the answer lies, at least in part, in the differences between
international armed conflict (war between nation states) and
non-international armed conflict (war between a nation state and
"irregular" non-state forces like Al Qaeda )-and, more to the point, how
those differences play out in the public mind, if only at a
subconscious level.

The law of war authorizes the detention of
prisoners of war for the duration of hostilities without any
individualized assessment of dangerousness, but only in the context of
international armed conflict. For non-international armed conflict, the
law of war recognizes the possibility that detention may occur and
requires that such detention meet baseline standards; but it doesn't
actually authorize detention, leaving that to domestic law. In Hamdi v.
Rumsfeld, the Supreme Court held that the 2001 Authorization for Use of
Military Force provided the necessary authorization and incorporated
the rule that "combatants" (the Court's term) are subject to detention
for the duration of hostilities.

The U.S. thus has authority
under domestic law to apply the same detention rule that the law of war
establishes in international armed conflict. The problem with this
arrangement is that the rules that apply in international armed
conflict are a poor fit for the war we're actually fighting. Wars
against other nations differ from wars against irregular forces, and
those differences are at least intuitively understood by the American
public and the rest of the world. Three of these differences are
crucial when considering the issue of detention.

Read the rest at the Balkinization blog