At its most basic level, the idea behind “preventive detention” is that there are some bad guys out there — especially in wartime or in a time of terrorism — that should be imprisoned even if the government cannot prove in court that they have committed a crime. Adam Serwer, writing in the American Prospect, has produced an excellent explanation of the issue and the steady drift of President Obama’s position of detaining terrorist suspects without trial. The White House is currently seeking ways to continue the practice, which was widely employed by George W. Bush, under a different legal framework in a narrower set of circumstances. As Serwer explains, the reluctance to reject the Bush Administration policy outright has its roots in a division within the legal left.
On the campaign trail, candidate Barack Obama was fearless in the face of conservative demagoguery on national security — he even said that if he managed to capture Osama bin Laden, he would subject him to a jury trial to avoid making him a martyr. He pledged to institute a system for trying detainees based on the Uniform Code of Military Justice, which has rules similar to those in federal courts. Some civil-liberties advocates dared to hope that if Obama was elected their fight would be over.
As the Bush years drew to a close, however, a rift began to open on the intellectual left. There was still near-unanimous agreement that torture was deplorable and that detainees had a right to due process, but the coalition was divided on the issue of preventive detention. While some groups, like the ACLU, continue to advocate for a “charge or release” policy in all circumstances, independent legal experts are engaged in a vigorous debate about how — and when — it is constitutionally permissible to hold suspects against whom we have scant evidence.
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