I Almost Never Write Law Review Articles...

By Benjamin Wittes
Tuesday, January 18, 2011, 8:03 PM

...but I make very occasional exceptions, one of which has just been published. I wrote this lengthy article in the Harvard National Security Journal with a remarkable law student named Adam Klein (about whose other work I wrote last month). The article, entitled "Preventive Detention in American Theory and Practice," is an attempt to answer a question that has been bugging me for all the years I have been writing about detention policy: Is there some unifying theory that binds together the many far-flung federal and state laws that authorize preventive detentions? Is there a simple way of describing, in other words, when American law permits and does not permit preventive detention?

Adam and I attempted to distill the American theory of preventive detention by looking at the development of these many laws over the centuries. A much-condensed version of this paper appears as a chapter of my recent book, Detention and Denial: The Case for Candor After Guantanamo. This is the whole paper. The introduction, stripped of its footnotes, reads as follows:

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from this norm, an institutionalization of the aberration that the detention practices of the Bush and Obama years have represented.

The more careful commentators acknowledge that the rule has exceptions — sometimes even many of them. But they describe these exceptions as narrow and limited, deviations from a generally strong rule that the American system tolerates to accommodate exceptional circumstances.

The trouble with such civic mythology is that it is, ultimately, an inaccurate description of past practice, and thus a misleading indicator of the theory on which such practice rested. Our purpose in this paper is to describe just how mythological this particular civic myth is--indeed, to show that nearly every aspect of it is false: Preventive detention is not prohibited by U.S. law or especially frowned upon in tradition or practice. The circumstances in which it arises are not isolated exceptions to a strong rule against it; rather, they are relatively frequent. The federal government and all 50 states together possess a wide range of statutory preventive detention regimes that are frequently used, many of which provoke little social or legal controversy.

The diverse statutes and regimes authorizing the preventive detention of individuals not convicted of a crime to prevent harms caused by that person range widely in purpose and subject matter:

  • Wartime detention powers cover not merely prisoners of war and unlawful enemy combatants but also the nationals of countries against which the United States finds itself in a state of armed conflict;
  • The Constitution’s Suspension Clause specifically contemplates that Congress might in crises suspend normal constitutional presumptions limiting detention--a power which has been invoked several times in American history;
  • Detention authorities ancillary to the criminal justice system include both pretrial detention and the detention of material witnesses not even facing criminal charges;
  • The immigration law permits the detention of aliens facing deportation and “arriving aliens” denied entry to the United States;
  • State and federal laws permit the detention of the seriously mentally ill, when they pose a danger to themselves or to the public at large, as well as the detention of sex offenders even after they have completed their criminal sentences;
  • State and federal statutes provide broad authority to quarantine people who have communicable diseases; and
  • States and localities have a variety of protective custody powers, permitting the noncriminal detention--often for their own protection--of, among others, the intoxicated, alcoholics, drug addicts, the homeless, and pregnant drug users.

The best way to understand preventive detention under American law and practice, we submit, is not that some broad principle prohibits it. It is, rather, that American law eschews it except where legislatures and courts deem it necessary to prevent grave public harms. The law then tends to unapologetically countenance detention, but only to the extent necessary to prevent those harms.

It is also wrong to describe preventive detention powers in American law as narrowly crafted exceptions to a broad constitutional rule. Rather, as we shall show, many of these powers evolved from common law detention powers significantly broader than the form that they now take. This point bears emphasis. America’s preventive detention powers did not evolve as regrettable, and therefore narrow, byways diverging from a main road of criminal justice detentions. Many of them, rather, predate the Bill of Rights and have coexisted with it for the entirety of the life of the country. Many have narrowed over time in response to abuses--including both individual injustices and discrimination against socially disfavored groups--and concerns that the powers in question authorize more detention than is strictly necessary. Nonetheless, the evolution of the scope of preventive detention powers is not unidirectional. Detention powers may expand or contract as public sentiment evolves concerning how much detention a given problem truly requires. America today, for example, sees dramatically less quarantine and mental illness detention than in decades past. The detention of sexual predators is on the rise, however, as is immigration detention, and the post-September 11 period saw a significant (and controversial) spike in the detention of material witnesses.

In practice, the breadth of preventive detention authorities, we argue, expands and contracts with the actual and perceived need for those authorities. And most legislative and judicial reform and refinement of these statutes over time has sought to develop sorting mechanisms to focus detention powers more clearly on those situations in which detention offers the only means of avoiding some great public or private harm. To this end, two recurring structural features have developed in many preventive detention laws.

The first is a kind of multi-pronged trigger for detention. Many detention laws require more than an assertion or proof of dangerousness on the part of a prospective subject. They also require some other specifically prescribed criterion--sometimes more than one. For example, to detain a seriously mentally ill person, the government must prove both that the subject has a diagnosable mental illness and that he poses a danger to himself or others. In addition, many preventive detention regimes have ongoing oversight mechanisms, elaborated due process systems designed to ensure accuracy and provide detainees significant opportunity to defend themselves. In short, American law evinces little opposition in principle to preventive detention but a general insistence that laws not authorize more than they need to.

This paper proceeds in four parts. In Part I, we offer a working definition of preventive detention and survey the most commonly discussed preventive authorities in the post-September 11 era: those pertaining to the president’s wartime power to confront the enemy. This section intentionally omits discussion of the United States’ post-9/11 detention of terrorist combatants, since the very purpose of this paper is to theorize a background conceptual framework with which counterterrorism detention can be compared. The implications of our model for terrorist detention are considered in the Conclusion. In Part I, we examine the crisis powers given to the political branches in the Suspension Clause, powers that have not been invoked in America’s confrontation with al Qaeda. In Part II, we discuss the authorities that are ancillary to the criminal justice system, arguing that some of these are more overtly preventive in nature than many advocates of the exclusive use of the criminal justice apparatus in counterterrorism acknowledge. In Part III, we describe the sweeping detention powers in American immigration law. In Part IV, we look at health authorities, including the powers of quarantine and the power to lock up the mentally ill. Part IV also considers the related, but (in the national security context) less discussed area of protective custody detentions.

In our Conclusion, we attempt to draw together the common threads of these various authorities and describe in general terms what American law tolerates in the way of non-criminal preventive detention. We also look briefly at the current debate over terrorism detentions in light of this landscape. In the end, what emerges is a relatively simple test for Congress to consider--and the courts to review--in contemplating counterterrorism detention. Does America really need to do it, and if so, how can it do it in a fashion that minimizes erroneous incarcerations? If such detention is necessary and tailored to encompass only the truly dangerous, we argue, it fits relatively comfortably in conceptual terms alongside the many powers state and federal legislatures have given governments to detain citizens and non-citizens alike.