May 2, 2002

Al Qaeda Detainees: Don’t Prosecute, Don’t Release (Stuart Taylor Jr., April 29, 2002, National Journal)

At first blush, the idea of indefinite “preventive detention” of people convicted of no crime may seem harsh and un-American. Indeed, it has (and probably should have) no basis in domestic U.S. law, with narrow exceptions such as civil commitment of the dangerously mentally ill. Prolonged detention based solely on a suspected propensity to commit future crimes may well be unconstitutional.

But in the current wartime context, these moral objections and legal obstacles are not insuperable. As a legal matter, the president has broad power to decide what to do with terrorists and others captured overseas by the U.S. military. In addition, military prisoners held abroad do not have the same rights under U.S. law as civilian prisoners in the United States. And there are international-law precedents for detaining “unlawful combatants” and members of terrorist organizations until they are no longer dangerous, as well as for detaining prisoners of war until the war is over.

As a moral matter, preventive detention is the least-bad option for dealing with many captured Al Qaeda jihadists. It’s better than setting would-be mass murderers loose to prey on our people or prosecuting them without solid evidence implicating them individually either in war crimes or in specific terrorist conspiracies.

We’ve long believed Stuart Taylor–a liberal, with whom we frequently disagree–to be the best legal affairs columnist on the planet. Here he becomes one of the few Left or Libertarian pundits willing to acknowledge that what he advocates, and what we are now doing, may be both unconstitutional and justifiable. We eagerly await the counterarguments from those who think the President’s oath of office requires him to loose mass-murderers because of constitutional nicities.