Detention Debates

Authors

Deborah N. Pearlstein, Benjamin N. Cardozo School of Law

Abstract

Since the United States began detaining people in efforts it has characterized, with greater and lesser accuracy, as part of global counterterrorism operations, U.S. detention programs have spawned more than 200 different lawsuits producing 6 Supreme Court decisions, 4 major pieces of legislation, at least 7 executive orders across 2 presidential administrations, more than 100 books, 231 law review articles (counting only those with the word "Guantanamo" in the title), dozens of reports by nongovernmental organizations, and countless news and analysis articles from media outlets in and out of the mainstream. For those in the academic and policy communities who have followed these debates in any detail, much of Benjamin Wittes's Detention and Denial will sound familiar. You will recognize many of its arguments, recapitulated at times near verbatim, from Wittes's prior works. You will understand why, despite its relatively recent publication date, events occurring since publication-in and out of the courts-have inevitably eclipsed elements of both its descriptive and prescriptive accounts. At the same time, you will be perhaps surprised to discover that the greatest problem in U.S. detention policy in the past decade has been neither its legality nor its wisdom but rather-mammoth volumes of litigation, legislation, and literary attention notwithstanding-that "we pretend that we do not engage in detention" (p. 9). Although one wishes regularly for some greater definition of precisely which "we" Wittes means, he is undoubtedly right that debates about U.S. detention policy in the past decade have been beset by a kind of irrationality unfortunately familiar in democratic discourse on matters of national security. Politicians, for example, unrealistically insist that any detention regime be foolproof, or stoke fears that having any terrorist suspect held on U.S. soil poses an unmanageable security risk (pp. 8-9). But Wittes's book neither sheds new light on the causes underlying such unfortunate features of democratic debate nor analyzes how one might better structure decisionmaking on such fraught questions of law and security. Indeed, his criticisms of the political process on these issues are followed paradoxically by a call for greater congressional engagement. Instead, Detention and Denial is better taken as a version of Wittes's argument for why the current system of rules the United States has for detaining terrorist suspects fails substantively to meet our policy needs.

Recommended Citation

Deborah N. Pearlstein, Detention Debates, 110 Mich. L. Rev. 1045 (2012).
Available at: https://repository.law.umich.edu/mlr/vol110/iss6/8