Featured — January 18, 2011 at 12:40 pm

Preventive Detention in American Theory and Practice

By Adam Klein* and Benjamin Wittes** –

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In Preventive Detention in American Theory and Practice, Adam Klein and Benjamin Wittes show that contrary to civic mythology, the extra-criminal detention of terrorism suspects is not “an extraordinary aberration from a strong American constitutional norm.” The authors argue that a survey of American wartime, emergency, criminal justice, immigration, and health authorities illustrate that American law has not traditionally eschewed preventative detention where legislatures and courts deem it necessary to prevent grave public harms.” Therefore, “if counterterrorism detention is necessary and tailored to encompass only the truly dangerous 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.”

* Adam Klein is a third year J.D. candidate at Columbia Law School and Articles Editor of the Columbia Law Review. He previously served as legislative assistant to U.S. Rep. C.W. “Bill” Young and as a staff member of the 9/11 Public Discourse Project, the nonprofit successor to the 9/11 Commission.
**
Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution. He is the author of Detention and Denial: The Case for Candor After Guantanamo, forthcoming from the Brookings Institution Press. He is also the author of Law and the Long War: The Future of Justice in the Age of Terror, published in June 2008 by The Penguin Press, and the editor of the 2009 Brookings book, Legislating the War on Terror: An Agenda for Reform. He co-founded and co-writes the Lawfare blog (http://www.lawfareblog.com/), which is devoted to non-ideological discussion of the “Hard National Security Choices,” and is a member of the Hoover Institution’s Task Force on National Security and Law. His previous books include Starr: A Reassessment, which was published in 2002 by Yale University Press, and Confirmation Wars: Preserving Independent Courts in Angry Times, published in 2006 by Rowman & Littlefield and the Hoover Institution. Between 1997 and 2006, he served as an editorial writer for The Washington Post specializing in legal affairs. Before joining the editorial page staff of The Washington Post, Wittes covered the Justice Department and federal regulatory agencies as a reporter and news editor at Legal Times. His writing has also appeared in a wide range of journals and magazines, including SlateThe New RepublicThe Wilson QuarterlyThe Weekly StandardPolicy Review, and First Things.

Image courtesy of the Associated Press

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