Would Preventive Detention Work?

Georgetown law professor David Cole has an interesting, if perplexing, piece in the Boston Review of Books which I just read for one of my classes (you can read it here). Cole has been one of the most vocal and intelligent commentators on the moral and legal conundrums presented by the war on terror; he has written several books and papers on the subject and has litigated a number of cases on behalf of the Center for Constitutional Rights. In general I respect his opinion and while I think this piece is an ambitious and pragmatic intellectual effort – a hard balance to strike – it comes up short in a few important ways.

My issue with Cole’s essay is that it trivializes one of the most important and problematic questions in the whole discussion of the war on terror: how do we effectively determine who is a threat and who isn’t? Surely Cole’s suggestion of a preventive detention scheme that adheres to the rule of law, due process, the Geneva Conventions, and basic rights is well-taken. Moreover, as Ali Soufan said in his Op-Ed piece a couple days ago, whatever we think about prosecuting former officials or setting up truth commissions, it is now essential to set up a detention and interrogation system that is well bounded within firm and clear legal fence-posts. And the main function of such a system, I would imagine, would be prevention.

However, can we really believe that if taken to task, the engineers of the torture apparatus wouldn’t claim that prevention was their highest aim? The evidence that has surfaced so far greatly undermines their argument that the enhanced interrogation techniques being used at Guantamo, Abu Ghraib, Bagram and elsewhere were about gathering information. But Cheney and others still have a case that those methods prevented strikes against the homeland by al Qaeda; we simply can’t refute the claim that there were no successful Qaeda attacks on America after 9/11. So Cole’s talk of detaining preventively actually lends credence to the Cheney argument and reminds us of this irrefutable point.

What is far more critical, in my mind, is that Cole never really gets to the bottom of the issue. If we were to put his plan into action tomorrow morning and start detaining people under the rationale that we were preventing an attack, we still would not have solved the two key problems: how the attack will be carried out and by whom. Cole’s system assumes that the detainees are all guilty but he never describes how we would have come to know that with such certainty. We only gain something from a preventive detention scheme if the individuals we are detaining are actually guilty of some high-level planning and intent to carry out an attack. We gain nothing from detaining others. But the real problem is in figuring out who will undoubtedly pose a grave threat to the security of the American people if we leave them be. I don’t see how Cole answers that question.

I think the strongest part of the essay is the stern reminder of the challenges we face: the war on terror is fought on a limitless battlefield against an undefinable enemy that doesn’t play by the rules and whose methods and motives we may not fully understand. This is a problem for our laws, which require that the issue at hand be concrete and finite. Those are two conditions we lack in the war on terror. Murder, by comparison, is finite, and we don’t need preventive detention for murder because individual instances of it do not cause mass death and destruction. Individual instances of terror do. This distinction is lurking somewhere beneath Cole’s reasoning, I think, although it never bubbles up to the surface. The key upshot is that whether we are detaining people in order to gather information, prevent attacks or something else, we have to have proof that locking a certain person up will demonstrably and greatly improve the security of the American people. That is what has been missing so far and what is sorely needed before any system that abides by the rule of law can get going.