Administrative Detention of Terrorists: Why Detain, and Detain Whom?

A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system.

Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty. Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.”

Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest, charge, and prosecute suspected terrorists. Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”

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