How can U.S. keep terror suspects with no hope of trial, but espouse due process?

The late Justice Robert Jackson aptly observed that “the most odious of oppressions are those which mask as justice.” There is a legitimate concern that a preventive detention law would provide such a “mask,” because it would provide for the forms of due process without much substance.

This is especially so when a tribunal is empowered to confine based on predictions of future crimes rather than on evidence of past crimes. As Yogi Berra once put it: “Predictions are difficult to make, especially about the future.” Moreover, tribunals will generally choose to err on the side of confinement rather than release. This is because errors resulting in confinement are never disclosed, since the “dangerous” person remains confined and unable to disprove the prediction. Whereas errors resulting in release become public outrages, when the wrongly released person commits an act of terrorism.

It is unlikely, therefore, that many currently detained terrorists would have a different outcome — would actually be released — under the proposed system of watered-down-due-process-preventive-detention. The proposed system might make us feel better, but it would do little to protect their rights.

Another approach might be to impose a time limit on the duration of any confinement without trial. A similar approach has been tried with regard to pretrial detention of ordinary criminal defendants, but so many exceptions have been written into the law that some defendants, charged with ordinary crimes, have been held without trial for as long as five years — perhaps even more.