It is also easy enough to dismiss the idea that America ever should or would again impose a sweeping detention policy when faced with an uncertain threat of unclear scope. Both approaches to thinking about preventive detention, however, are just wrongheaded.
Rather than curse the past or ignore the challenges of the future, the real lesson of history is that if America waits until a crisis is upon us to formulate a preventive-detention policy, then it is almost certainly right to get it exactly wrong. If we want to do better than trample on the rights of the few to protect the many, we should decide what we can and must do before the crisis—creating solutions that in moments of peril will keep the nation both safe and free.
In The Necessary Evil of Preventive Detention in the War on Terror, Stephanie Cooper Blum examines one of the great civil liberty chal-lenges of the twenty-first century. Blum explains the reasoning behind the use of preventive detention and takes a critical look at the Bush administration’s policies, as well as offering an alternative to the current regime. She addresses the conundrum of how to treat those whom credible evidence suggests are engaged in terrorist activities, but for whom the legal system was not designed.
Blum makes the case that America needs a new policy…and it needs it now—before another terrorist attack on American soil enflames the public and makes striking the proper balance between liberty and security nearly impossible. The Supreme Court has emphasized the need for a new system in which preventive detention must be subject to more rigorous review. The Court explained that the Constitution requires some form of process for reviewing detention claims, such as notice of the factual basis of detention and the opportunity to rebut this evidence before a neutral decision maker. Any such system must provide a legitimate process by which we can adjudge those suspected of terrorism as threats and a means of ensuring that the process is not abused.