Academic

Walen on the Morality of Preventive Detention for Terrorism

By Lawrence Solum

Alec D. Walen (Institute for Philosophy and Public Policy) has posted The Morality of Preventive Detention for Suspected Terrorists; Possibilities and Limits for a Liberal Society on SSRN. Here is the abstract:

The basic liberal commitment to respecting the liberty of autonomous individuals requires states to respect the following principle: those who can be adequately policed and held criminally liable for their choices, as normal autonomous agents, and who disavow the intention to act in ways that would inflict the kind of serious harm on others that the state ought rightfully to try to prevent, can be subjected to long-term detention only if they have committed a crime for which long-term detention is a fitting punishment. I call this the 'Autonomy Respecting Model of Detention.' It allows for long-term preventive detention (LTPD) of suspected terrorists (STs) primarily for those who come from countries that would not adequately police them were they released there. Those who come from countries, or could be released into countries, where they would be adequately policed have a right to be released and policed. The core of the argument is that if an ST can be held adequately accountable for his actions, then the only plausible justification for LTPD is the claim that the government has sufficient reason to believe that he intends to take actions that will cause unacceptable harm to others. Such a belief may justify short-term preventive detention, to ensure that he does not inflict such a harm. But if he denies that he has any such intention, then LTPD exacts too great a cost from him, and is inconsistent with treating him as a being who has a free will and who can responsibly choose what to do. Treating autonomous and accountable persons, who deny that they have any intention to inflict unacceptable harm on others, as though they lack a free will, is as unjustifiable in a liberal society as sacrificing them as a mere means of pursuing the greater good.

Highly recommended.

Full post as published by Legal Theory Blog on August 20, 2009 (boomark / email).