Beyond Guantanamo: Two Constitutional Objections to Nonmilitary Preventive Detention

By Eric Sandberg-Zakian* —

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Eric Sandberg-Zakian addresses nonmilitary preventive detention, a scheme that has gained support as a sensible alternative to holding suspected terrorists now that indefinite, unreviewable military detention is no longer an option. Such a program 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. Sandberg-Zakian 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.

* Covington & Burling, LLP, Washington, D.C. J.D. Yale Law School, 2010. B.A. Yale University, 2007. For their invaluable help, the author thanks Eugene R. Fidell, Joshua A. Geltzer, Linda Greenhouse, Robert Post, Pierre St. Hillaire, Reva Siegel, Laura Smalligan, and Roger Weiner. The author would also like to thank editors Jonathan Abrams, Matthew Bobby, Stephen Pezzi, Lindsay Schare, and their staff at the Harvard National Security Journal for their work on this article.