Advancing a Free Society

I Almost Never Write Law Review Articles…

Wednesday, January 19, 2011

…but I make very occasional exceptions, one of which has just been published. I wrote this lengthy article in the Harvard National Security Journal with a remarkable law student named Adam Klein (about whose other work I wrote last month). The article, entitled “Preventive Detention in American Theory and Practice,” is an attempt to answer a question that has been bugging me for all the years I have been writing about detention policy: Is there some unifying theory that binds together the many far-flung federal and state laws that authorize preventive detentions? Is there a simple way of describing, in other words, when American law permits and does not permit preventive detention?

Adam and I attempted to distill the American theory of preventive detention by looking at the development of these many laws over the centuries. A much-condensed version of this paper appears as a chapter of my recent book, Detention and Denial: The Case for Candor After Guantanamo. This is the whole paper. The introduction, stripped of its footnotes, reads as follows:

Continue reading Benjamin Wittes at Lawfare