This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty and security, but their resolution should precede analysis of the procedural issues. The soundness of any specific procedural architecture depends heavily on its purpose and on the substantive determinations it is expected to make.
Administrative Law | Constitutional Law | Criminal Law | Criminal Procedure | Law | National Security Law
National Security Law Program
Matthew C. Waxman,
Administrative Detention of Terrorists: Why Detain, and Detain Whom?,
J. Nat'l Sec. L. & Pol'y
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1561