By any measure, the period between September 11, 2001, and the 2008 presidential election witnessed an unprecedented tangle of controversies at the intersection of national security law and policy. The Bush administration responded to the September 11 attacks and the threat of further terrorism by asserting expansive executive authority across a wide range of national security domains. The President fashioned new rules for detaining those captured in what was called the “global war on terror” …
The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office. After the stunning failures of the preceding Administration, Obama’s inauguration in November 2008 was greeted with euphoria. Obama’s bearing, approach and outlook seemed to offer a “just in time” rescue for national security policies run aground. Now, as the day-to- day reality of governing sets in, it is increasingly clear that the nation will need every bit of the new President’s heralded thoughtfulness and calm. Obama seems an excellent example of Ernest Hemingway’s definition of courage as “grace under pressure.” Even without considering the economic debacle confronting the world and its impact on global markets, the national security concerns confronting the United States as the world’s leading power are daunting.
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.”