Rationales for Preventive Detention
As is explained in detail in chapter 3, the administration’s main rationale behind preventive detention is to facilitate interrogation of suspected members of al Qaeda or the Taliban. While many legal scholars have argued for alternative approaches to preventive detention that would allegedly provide more due-process rights to detainees, there does not appear to be much scrutiny of the administration’s underlying reason for preventive detention: interrogation. In other words, it appears that commentators have accepted as given that interrogation produces actionable intelligence and have focused the inquiry on the legality and policy ramifications of Bush’s enemy-combatant policy.
As the concept of preventive detention as a tool in the war on terror is based on the underlying rationales for preventive detention, foremost interrogation, it is necessary to look to a body of literature that addresses whether, and under what circumstances, interrogation of suspected terrorists actually produces actionable intelligence. If we accept the administration’s assertions as true, there is certainly evidence that interrogation of high-value al Qaeda operatives has produced useful intelligence. John Yoo, former deputy assistant attorney general under the Bush administration, states that “intelligence gathered from captured al Qaeda and Taliban fighters allowed our intelligence, military, and law enforcement to frustrate plots that could have killed thousands of Americans.”22 He explains in his book War by Other Means: An Insider’s Account of the War on Terror how the captures and subsequent interrogations of Abu Zubaydah (al Qaeda’s chief military planner) and Ramzi bin al Shibh led to the capture of Khalid Sheikh Mohammed (KSM), who has been described as the “principal architect” of the 9/11 attacks.23 Furthermore, in a June 2004 press release by former deputy attorney general James Comey, Comey describes how all three of these men played an instrumental role in training and preparing José Padilla for his mission to detonate a radioactive bomb in America.24 Conversely, Pulitzer Prize–winning journalist Ron Suskind notes in his book The One Percent Doctrine that al Qaeda operative Abu Zubaydah may have been a mentally ill, low-level logistics person who did not provide useful information to the administration.25