2011•Digital Commons at University of Maryland Carey Law (University of Maryland Francis King Carey School of Law)Open access
A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists
Alec D. Walen
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Abstract
because they are predicted to pose a threat larger than that of almost all other criminals.1.For example, although President Obama has asserted the power to detain anyone who "substantially supported" al Qaeda, the habeas courts that have handled cases since he took this position have split on whether to require more.Compare Mohammed v. Obama, 704 F. Supp.2d 1, 5 (D.D.C. 2009) (adopting the "substantially supported" standard), and Gherebi v. Obama, 609 F. Supp.2d 43, 54-55 (D.D.C. 2009) (same), with Hamlily v. Obama, 616 F. Supp.2d 63, 69 (D.D.C. 2009) (rejecting the "substantially supported" standard).2. Peter Baker, Obama's War Over Terror, N.Y.TIMES, Jan. 17, 2010, at 30. 3. See William H. Taft, IV, War Not Crime, in THE TORTURE DEBATE IN AMERICA 223, 224 (Karen J. Greenberg ed., 2006) ("Al Qaeda, of course, is not a state . . ..").4. Perhaps the first person to note the problematic absence of a unified theory or account of the various forms of detention, particularly preventive detention, was Carol Steiker.See Carol S. Steiker, Foreword: The Limits of
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