Lawfulness of Preventive Detention
Assuming the rationales for creating a preventive-detention regime in this war on terror are legitimate, the next question is whether a system of preventive detention can be created that is lawful. The lawfulness of preventive detention is thoroughly discussed in chapter 4. To date, it appears that President Bush has applied his enemy-combatant policy to three U.S. persons, Yaser Hamdi, José Padilla, and Ali Saleh Kahlah al-Marri, who have all challenged their respective designations in federal courts.39 Hence, the legal decisions written in these cases by federal judges, including Supreme Court justices, and the legal briefs submitted by the respective parties in these cases constitute a critical part of the literature review. While, as previously explained, the cases involving Hamdi and Padilla are resolved, as of this writing, the fate of al-Marri is still pending as the Fourth Circuit remanded his case for an evidentiary hearing. Therefore, the legal decisions affecting the enemy-combatant policy are still being debated and will be an ongoing part of the literature review.
Other relevant legal decisions discuss the contours of preventive detention in other contexts such as pretrial detention,40 mental-health confinement or quarantines,41 and the war powers of the president.42 To this end, the City of New York Bar Association wrote a 153-page report discussing the due-process concerns of the indefinite detention of enemy combatants.43 While the report does not compare and analyze alternative approaches to preventive detention, its exhaustive description of the legal landscape provides a solid foundation for any analysis of preventive detention.
As previously noted, a significant book discussing the administration’s enemy-combatant policy is War by Other Means, written by Yoo, the former deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice, who played an instrumental role in creating and shaping the enemy-combatant policy.44 In this book, Yoo explains the legal justifications that are behind the enemy-combatant designations. Given Yoo’s role in creating this preventive-detention regime, his book serves as an important part of the background for any discussion of preventive detention as a tool in the war on terror.