Throw Away the Key on Terror Suspects

From an op-ed by John Farmer in today's NYT:

Imagine what might have happened had the government not detained Mr. Padilla back in 2002 -- if he had carried out a large-scale bombing, killing thousands, and if it had emerged later that the government had had information implicating him and done nothing. Would that have been a risk worth taking? Scotland Yard took that risk when it put surveillance on, but failed to detain, the future London subway bombers.

It is time to stop pretending that the criminal justice system is a viable primary option for preventing terrorism. The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.

In the cases of non-U.S. citizens, preventive detention shouldn't be a problem although the ACLU and other civil liberties advocates would disagree. For U.S. citizens, legislation is needed to precisely define as illegal the behavior which is a precursor to terrorist acts.

Even so, preventive detention of Americans is fraught with obstacles. For example, a formula to sidestep habeas corpus and speedy trial provisions needs to be created. Possibly, a special court could be impaneled to legally decide that preventive detention is necessary for terror suspects since they are a danger to themselves and others.

In any event, I agree with Mr. Farmer.