An obvious piece of literature assessing the validity of the administration’s assertions that captured al Qaeda operatives have produced useful intelligence would be the Detainee Interrogation Reports, mentioned and relied on by the authors of the bipartisan 9/11 Commission Report. While the commissioners note that they used corroborating evidence as much as they could to assess the accuracy of the information, they state that “[a]ssessing the truth of statements by these witnesses—sworn enemies of the United States—is challenging.”26 Because the Detainee Interrogation Reports are understandably classified, there is an inherent gap in the literature needed to evaluate whether interrogation of detainees produces actionable intelligence.
This gap is partially mitigated by the December 2006 Intelligence Science Board (ISB)27 374-page report examining several aspects of interrogation methods. The ISB notes that no significant scientific research has been conducted in more than four decades about the effectiveness of many interrogation techniques that are regularly used by the military and intelligence groups.28 The ISB recommends additional scientific research of interrogation methods (both retrospective analyses of data about past interrogations and new studies that relate different practices to the value of the information obtained) to determine what is effective.29 While the ISB does not focus on preventive detention, but rather on the effectiveness of interrogation, given that interrogation is the main rationale for preventive detention, the ISB report is a significant piece of the subliterature for a book on preventive detention.
Another rationale argued by the Bush administration for its enemy-combatant policy is incapacitation, that is, the prevention of terrorist suspects from returning to the battlefield. This was one of the main justifications articulated by the Bush administration for detaining Hamdi. According to the facts presented in an affidavit from a Defense Department official (Mobbs declaration), Hamdi surrendered to the Northern Alliance who turned him over to U.S. authorities.30 Justice O’Connor, in her plurality opinion in Hamdi, explicitly upheld incapacitation as a justification for preventive detention as long as the individual was held only for the duration of hostilities and was allowed an opportunity to challenge the designation as an enemy combatant.31