While the details of these various proposals are discussed and categorized in chapter 7, as a whole, they largely fail to thoroughly address whether the administration’s underlying rationales for preventive detention—interrogation, incapacitation, and to a lesser extent difficulties with trying terrorism suspects in federal court—are legitimate and justifiable. Furthermore, while all these approaches to preventive detention have strengths and weaknesses, a weakness of the literature as a whole is that there is minimal comparative analysis among the various approaches. None of the literature contains a methodology for evaluating its approach versus the other alternative approaches, and few contain an in-depth analysis of whether a system of preventive detention is needed as a tool in the war on terror.
There is abundant literature written by lawyers and policy makers that addresses the lawfulness of preventive detention, other countries’ approaches to preventive detention, and alternative preventive-detention regimes to the enemy-combatant policy. There is minimal literature that analyzes the underlying rationales for preventive detention—namely, interrogation and incapacitation—due to the classified nature of the inquiry. Nonetheless, by using bipartisan government reports, one can begin to evaluate whether interrogation produces actionable intelligence to justify a system of preventive detention. While preventive detention has significant consequences for any democracy, what is lacking in the literature is a comprehensive analysis of all the different components of preventive detention that compares and contrasts alternative approaches to preventive detention under a methodology upholding democratic principles.
Many lawyers, professors, and policy makers have advocated alternative regimes to the Bush administration’s enemy-combatant policy for detaining suspected terrorists.