An Ounce of Detention

In Steven Spielberg's Minority Report, set in the not-all-that-distant future, police in Washington, D.C., have hit upon a way -- through the enslavement of psychic visionaries -- to predict and prevent future crimes. Would-be criminals are apprehended before they actually break the law and are punished for their intent to do so. But as one might expect, things go awry when one officer learns that the psychics' visions can be manipulated, and an innocent man is implicated in a future murder he does not intend to commit.

Neither President George W. Bush nor Attorney General John Ashcroft has discovered any psychic visionaries -- with the possible exception of Karl Rove, and his field of vision is limited -- but in fighting the war on terrorism, they have nonetheless adopted sweeping new "preventive" strategies that depend on the ability to predict the future. At home, the Department of Justice's goal is no longer simply to prosecute criminals after the fact but to keep violent acts from occurring in the first place -- in Ashcroft's terms, "a paradigm of prevention." Abroad, the Bush administration's national-security strategy has redefined self-defense to encompass preventive war -- the initiation of hostilities to forestall not only imminent threats but also dangers that might develop at some point down the road. These strategies are rarely considered together, but they are in fact two sides of the same coin. They share not only a common origin and justification but a common philosophy -- one that ultimately depends upon double standards and secrecy, disdains the rule of law for the rule of force and is very likely to render us less, not more, secure.

The impetus to strike first is understandable. All other things being equal, preventing a terrorist act is certainly preferable to responding after the fact, all the more so when the threats include weapons of mass destruction and our adversaries are difficult to detect, undeterrable and seemingly unconstrained by considerations of law, morality or human dignity.

But all other things are not equal. Detention and killing, whether through the justice system or waging war, are the two most extreme acts a state can take, and both carry substantial risks of abuse. For these reasons, both the criminal law and the law of war strongly disfavor locking up human beings or launching a war for preventive purposes. As long as the future remains unpredictable, preventive strategies are bound to harm innocents and to substitute subjective will for the ideal of objective justice.

We've seen this kind of approach before. The federal government justified the excesses of the McCarthy era and the Japanese internment of World War II in preventive terms. In 1951, the Supreme Court adopted that reasoning to uphold the conviction of several American Communist Party leaders for subversive speech. In Dennis v. United States, the Court reasoned that in assessing whether speech posed a "clear and present danger," courts "must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Because the threat posed by a communist overthrow of the United States was so great, it did not matter that there was no evidence that it was likely to come to pass.

Similarly, the Court in Korematsu v. United States upheld the internment of 110,000 Japanese Americans in the absence of any actual evidence that they posed a danger, deferring instead to the military's unsupported assertions of national-security concerns. Today, Dennis is widely seen as a low point in the Court's protection of speech and its standard has been abandoned, while Korematsu is universally repudiated. Yet the Bush administration has invoked the same failed reasoning to defend both the domestic and foreign sides of its war on terrorism.