Daphne Eviatar argues, "If the ‘War on Terror’ is over, so is the right to preventive detention," pivoting off Obama counterterrorism adviser John Brennan's speech last week:

“This is not a ‘war on terror,’” Brennan said. “We cannot let the terror prism guide how we’re going to interact and be involved in different parts of the world.”

Well, if that’s the case, then how is the Obama administration going to justify “preventive detention” of terror suspects under the laws of war?

Well, that's not all Brennan said. He also said that:

Faced with this clear threat, President Obama has articulated a clear policy—to disrupt, dismantle, and defeat al Qaeda and its allies. That is our mission, and the President described it in no uncertain terms in his Inaugural when he said, “Our nation is at war against a far-reaching network of violence and hatred.” And to win this war against al Qaeda, the administration continues to be unrelenting, using every tool in our toolbox and every arrow in our quiver.

The Bush administration declared war against an idea -- the Obama administration has declared war against  specific groups -- al-Qaeda, and its affiliated organizations. The Bush administration's preventive detention policy was unchecked and expansive as a result, and the Obama administration, and those that are urging them to adopt a preventive detention policy, are looking for something narrower.

The most prominent legal scholars pushing for preventive detention, Ben Wittes and David Cole, both have proposals that would thus limit preventive detention to members of those organizations that have declared war against the United States (Cole's more narrowly). From their perspective, they are narrowing the powers currently available to the president to a policy that better reflects the rule of law by making sure the president can't arbitrarily decide who is eligible for preventive detention and who isn't. Cole in particular made the point to me that he believes "terrorism" in general should be treated as a crime, but that the circumstances are different when it comes to the U.S. being "at war" with al-Qaeda and groups like it. And the administration, judging by Brennan's comments, is likely to make the same argument.

Anyone who reads this blog regularly knows how I personally feel about preventive detention outside of a military context -- and looking at the Mohammed Jawad case, it's obvious there are problems with that too. But Eviatar is, I think, misstating the pro-preventive detention position.

-- A. Serwer

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