Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-swqlm Total loading time: 0.267 Render date: 2021-12-01T04:27:06.122Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

10 - Preventive Detention in the United States

Published online by Cambridge University Press:  05 March 2016

Hallie Ludsin
Affiliation:
Research Director, South Asia Human Rights Documentation Centre, New Delhi
Get access

Summary

Americans generally believe that the US Constitution prohibits detention without charge or conviction, except, perhaps, for foreigners detained as suspected terrorists in Guantanamo Bay. So strong is this belief that Klein and Wittes describe it as a “civic myth;” as “something of an article of faith … that preventive detention runs counter to American values and law.” Reality flies in the face of this civic myth. The federal government has the power to detain Americans and foreigners alike as suspected terrorists and the state and federal governments regularly use preventive detention against criminals. Perhaps the most surprising of all, like England, it is far easier to detain a criminal in the United States than it is to detain a suspected terrorist.

This chapter begins by describing the sources of law in the United States and the prohibition on arbitrary detention found in the Constitution's Due Process Clause. It then examines the historical limitation of preventive detention to periods of war or insurrection or for the mentally ill. Next, it describes the expansion of preventive detention beyond its traditional bounds. This section describes the rise of the risk society in the United States and the creation of new groups of deviant others who could be subject to detention. The chapter concludes with an analysis that the US is not so slowly removing previous barriers to preventive detention that had kept it as an extraordinary measure, placing it firmly on detention's slippery slope.

Sources of law

The sources of US law are the Constitution, statutory and common law and, to some extent, international humanitarian law (IHL). The Constitution applies fully to state and federal governments. Statutory law encompasses federal statutes as well as state statutes that apply only within the states’ separate jurisdiction. Jurisdiction over detention of suspected terrorists and enemy combatants is strictly federal. The Washington D.C. federal courts are tasked with determining the government's detention powers within the broad holdings of the US Supreme Court and under the laws of war, which include the Geneva Conventions and customary international law. The states have the power to use preventive detention during an insurrection within their territory if so granted under their state constitutions or laws.

Detention of criminals, which in the United States covers sexual offenders, is typically handled by the states although there are federal statutes as well.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2016

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

Available formats
×