Beyond Guantanamo: Two Constitutional Objections to Nonmilitary Preventive Detention

By Eric Sandberg-Zakian —

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Now that indefinite, unreviewable military detention at Guantanamo is no longer an option, policymakers will have to decide whether and how to detain suspected terrorists. One widely-supported proposal is the creation a nonmilitary preventive detention scheme that would empower the government to detain suspects who are potentially dangerous but cannot be shown to be proper targets of AUMF-authorized military force or proven guilty of criminal acts beyond a reasonable doubt. This Article identifies two major constitutional challenges — one under the Suspension Clause and the other under the Supreme Court’s decision in Kennedy v. Mendoza-Martinez — that no preventive detention proponent has heretofore addressed, because no preventive detention critic has yet articulated them. This Article concludes that both challenges are likely to be successful, and that any nonmilitary preventive detention scheme is therefore likely to be held unconstitutional.

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