Preventive Detention, Suspected Terrorists, and War

COLE FINAL
7/1/2009 12:43 AM
702 CALIFORNIA LAW REVIEW [Vol. 97:693
hostile to the United States. 32 The law presumes that any national of a country
with which we are at war poses a potential danger and does not require any
individualized determination beyond ensuring that the individual in question is
in fact a national of the enemy country.
Since shortly after 9/11, federal law has also contained a preventivedetention
statute that has never been employed, and therefore never judicially
tested. Section 412 of the USA PATRIOT Act authorizes the Attorney General
to detain foreign nationals he certifies as terrorist suspects without a hearing
and without a showing that they pose a danger or a flight risk. 33 They can be
held for seven days without any charges, and after being charged, can
apparently be held indefinitely in some circumstances, even if they prevail in
their removal proceedings by obtaining “relief from removal.” 34 The Attorney
General need only certify that he has “reasonable grounds to believe” that the
individual is “described in” various antiterrorism provisions of the Immigration
and Nationality Act (INA), which are in turn extremely expansive. 35 The statute
does provide for immediate habeas corpus review of the detention, 36 and
perhaps for that reason, the government has yet to invoke this authority.
As a practical matter, the Constitution’s Suspension Clause also implies a
de facto preventive-detention authority in very limited circumstances. It
guarantees the right of detained persons to seek judicial review of the legality
of their detention, but also provides that in “times of Rebellion or Invasion,”
where public safety requires it, Congress may suspend the writ of habeas
corpus. 37 While this provision does not authorize preventive detention as such,
it acknowledges Congress’s power to suspend habeas corpus, which would as a
practical matter remove the recourse that a detainee would otherwise have to
the courts to challenge his detention. Because suspension has so rarely been
invoked, this Article will not address the powers of Congress or the executive
under the Suspension Clause, but will instead consider what sorts of
preventive-detention regimes might be permissible or advisable in the absence
of the extraordinary act of suspending the writ.
Still, the Suspension Clause is significant for this discussion in at least
two ways. On the one hand, it underscores that preventive detention is not
necessarily anathema to our constitutional democracy, at least where limited to
extraordinary emergencies. On the other hand, the presence of suspension as a
32. Id.
33. 8 U.S.C. § 1226a(a) (2006).
34. Id.
35. Id. The INA’s antiterrorism provisions include persons who are mere members of
designated “terrorist organizations,” persons who have supported only the lawful activities of such
organizations, and persons who have used, or threatened to use, any weapon with intent to
endanger person or property, regardless of whether the activity has any connection to terrorism as
it is generally understood. See 8 U.S.C. § 1182(a)(3)(B)(i)(V), (iii)(V)(b) (2006).
36. 8 U.S.C. § 1226a(a) (2006).
37. U.S. Const. art. I, § 9, cl. 2.