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Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have studied the use of preventive detention in prior periods of war and emergency. The Japanese evacuation and internment during World War II and the Palmer raids in the aftermath of World War I expose misuse of preventive detention in American history. Other scholars have viewed preventive detention in comparative perspective; the British and Israeli use of administrative (preventive) detention highlights the abuses inherent in the practice. This article examines preventive detention by comparing the current Bush Administration post September 11 policy of detaining suspected terrorists, with the widespread, but little reported or analyzed use of preventive detention as a means of control in American prisons. Prison administrators throughout the country have increasingly resorted to preventive detention to place inmates in long-term solitary confinement. This practice of long term administrative or preventive confinement of prisoners under draconian conditions has been fraught with difficulties and due process violations and can be seen as a harbinger of the current anti-terrorism policy.

Part I of the article examines the preventive detention mechanisms the Bush Administration has utilized in its response to the terrorist threat. Part II examines the danger of the use of preventive detention, by reviewing its use in American prisons, where over the past decades, administrative or preventive detention has become routinized. Part III argues that these “emergency” measures used both in prisons and in society at large threaten to become a permanent fixture, thus contradicting the very notion of “emergency” power.