As is explained in chapter 7, the ideas proposed range from the “purist” approach, which essentially means no system of preventive detention, to creating entirely new court systems not only for dealing with detaining suspected terrorists for purposes of interrogation and/or incapacitation, but also for ultimately trying them for various war crimes or violations of criminal statutes. Other ideas advocated for preventive detention include making modifications to the current criminal justice system, creating an “emergency constitution” with provisions for preventive detention after another terrorist attack, or—as proposed by this author—having the Foreign Intelligence Surveillance Court (FISC) monitor a regime of preventive detention.
In order to evaluate these alternative approaches against each other, as well as against the status quo enemy-combatant policy, it is helpful to identify a framework for assessing criteria that are important underpinnings of a democratic society. For purposes of this book, each approach to preventive detention will be analyzed using four parameters, namely, whether and to what extent the approach is likely (1) to be legal, (2) to protect security, (3) to enhance liberty, and (4) to be efficient from an organizational/institutional standpoint. The details of this methodology are explained in chapter 6.
The crux of this book compares alternative approaches to preventive detention and recommends the FISC approach. This analysis is discussed in chapter 7. For a policy maker looking to understand the current proposed options for preventive detention, this chapter may be enough. Yet, the bulk of this book is background information that is essential to fully understanding and appreciating preventive detention as a tool in the war on terror. In other words, the policy options in chapter 7 are placed in a better context if the chapters are read in order.
In chapter 2, the nature of terrorism is explored to better understand the threat level and how it compares to previous conflicts the United States has faced. It also addresses to what extent, if any, this conflict should be thought of as a “war” as opposed to “crime.”