by Benjamin Wittes*
In the midst of a presidential transition, an economic meltdown, an enormously improved military environment in Iraq, and a dwindling detainee population at Guantanamo Bay, the problem of preventive detention in counterterrorism is not at the forefront of most Americans’ political thought these days. A legal policy issue that once dripped with urgency now strikes many Americans as little more than the detritus of the post-September 11 era. Al Qaeda now seems far away, and the people held at Guantanamo, partly as a consequence, seem so much less threatening than they did only a few years ago. Surely we can handle them—and others like them in the future—using traditional criminal justice processes. Surely, this idea of preventive detention was merely overreaction by a population too frightened to cleave to its values in the immediate aftermath of the attacks. Surely we will eventually, even soon, turn our collective face from preventive detention, much as we did from prior policies rooted in wartime panic.