David Cole, a longtime, trenchant critic of the Bush administration’s war-on-terror tactics, defends preventive detention, albeit with due process protections and other limitations. The world is upside down! For Cole, preventive detention is justified because the conflict with Al Qaeda is war-like enough to bring into play traditional military detention rules; more process—lawyers love process!—is needed because of the differences between this conflict and traditional war. I don’t know whether Cole has changed his mind or has always believed that the Bush administration’s basic approach was right but just went too far. Nothing in his earlier writings suggested to me the latter view but perhaps I did not parse the text carefully enough. He supports "Closing Guantanamo" (the title of his piece -- did the editors read it before publishing it?), but the purely symbolic nature of this move has become blindingly clear.
In my response, I argue that limiting preventive detention to the conflict with Al Qaeda will, in practice even if not by design, create a two-track system: preventive detention for Muslim terrorist suspects, ordinary criminal process for terrorist suspects who belong to other religions or to secular movements. Not a good way to "reboot" our relations with Muslim countries, and in tension with rule-of-law commitments to equal application of the law. Liberty will yield to equality: a general preventive detention system, modeled on that of France, lies in the future, I predict. The problem is not so much that of Muslim extremists with violent aims as the miniaturization of weapons technology, which can be exploited by terrorists of all stripes as well as ordinary criminals. Joanne Mariner defends conventional criminal processes. Bobby Chesney questions the application of Cole’s approach overseas.