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Preventive Detention in a Different Kind of War

As President Obama seeks an executive order to hold suspected terrorists indefinitely and without charge, debates are flaring about the legality of preventative detention. Why is this idea so controversial, and what does the nature of warfare have to do with it?

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