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In Homeland SecurityPreventive Detention: Balancing the Need for National Security against Civil Liberties Glynn Cosker May 16, 2018
civil liberties

Note: The opinions and comments stated in the following article, and views expressed by any contributor to In Homeland Security, do not represent the views of American Military University, American Public University System, its management or employees.

By Terri L. Wilkin
Program Director for Emergency & Disaster Management, Fire Science, & EOD and Associate Professor, Legal Studies, AMU

To justify the use of preventive detention, it is necessary to consider the authority from where it comes. For example, that authority may come from the Constitution, legislative acts or the powers given to the president.

However, there is now a growing concern about civil liberties and preventive detention in cases involving counter-terrorism intelligence and homegrown and foreign-based terrorism investigations.

History of Preventive Detention in the US

When you consider the civil liberties and rights granted to us in the Constitution, detaining individuals for preventive measures is one of the most intrusive acts against U.S. residents. The U.S. does not have any statutory power permitting preventive detention.

The Palmer Raids of 1919-1920 and the internment of Japanese and Japanese-Americans during World War II were the only two instances of preventive detentions prior to the 9/11 terrorist attacks. As a result of 9/11, thousands of Arab and Muslim foreign nationals in the United States were detained.

In that instance, preventive detention relied on existing laws including immigration law, the material witness statute, pretextual prosecution and the proclaimed power for detaining enemy combatants. It also included other legislative acts that expanded the preventive detention power.

The Patriot Act, enacted soon after 9/11, has a preventive detention section. The government may detain individuals who are terrorist suspects for seven days without having to show that they are a flight risk or pose a danger.

After the seven-day period, the detainees are granted an immediate habeas corpus review of their detention. However, the government has not used the authority for preventive detention under Section 214 of the Patriot Act.

Use of Preventive Detention Causes Serious Concerns about Detaining the Innocent

Preventive detention raises serious concerns about the rights of individuals because there is a high risk of detaining innocent people. It looks at future behavior in a way that is similar to future criminal behavior as depicted in the 2002 Tom Cruise sci-fi film Minority Report.

In that film, the police arrest criminals before they have even committed the crime of which they’re accused. The detainment of individuals after 9/11 was problematic, because hundreds of individuals were held with no proven ties to terrorism.

Instead of only using preventive detention in those few cases that justify its use, the criminal justice system should avoid questions of civil liberties and human rights abuses in the majority of cases. The War on Terror is different than the declarations of war professed in the past.

Criminal Justice System Is Effective in Terrorism Cases

Although Congress has expressed its preference for preventive detention, others support the use of the criminal justice system to fight terrorism. Those supporters include the Department of Defense, counter-terrorism experts and former administration officials of the Bush administration.

The federal district courts have had no shortage of terrorism cases over the last decade. There has been little to no fanfare about these cases, because they have a conviction rate of more than 90%.

Such a high conviction rate confirms that the criminal justice system is quite effective in handling terrorism cases. In comparison, military courts have not been as effective and have been highly criticized for their use of preventive detention in the aftermath of 9/11.

Preventive Detention Not Favored by Some US Allies

Furthermore, European nations and some of our other allies in the War on Terror have refused to cooperate with us in preventive detention cases. They will only cooperate if the U.S. court system handles these cases as criminal matters.

For example, the United Kingdom, Germany and India have refused to cooperate. They forbid extradition of terrorism defendants if they are not to be tried in a criminal court.

Preventive Detection Should Only Be Used in Cases Involving Ongoing Security Threat

There will always be a place for preventive detention; however, the criminal justice system should be the first choice. Preventive detention should only be used for those cases that pose a continuing and substantial threat to our nation.

These cases should be adjudicated within the constraints of both domestic and international law. Terrorists are not soldiers in a war and should not be treated as such. They are criminals guilty of violating the law and they should be prosecuted in the criminal justice system.

About the Author

Terri L. Wilkin graduated from the University of Maryland’s Francis King Carey School of Law in May 2007. She is admitted to practice law in the State of Maryland and the District of Columbia and has been admitted in the Federal United States District Court for the District of Maryland. Prior to law school, Terri obtained a Master of Science dual degree from the Johns Hopkins University in Leadership and Finance/Accounting. Her 26-year career with the Maryland State Police includes assignments in patrol, criminal and drug investigations, white-collar crime, intelligence work, training, the Deputy Director of the Planning and Research Division, and as the Department Prosecutor. She is also a Florida Licensed Private Investigator and a managing partner in an investigative consulting firm.

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