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.
The administration's domestic and foreign-policy preventive strategies share three common features. First, they rely on double standards. Most of the government's domestic incursions on fundamental rights have been targeted at foreign nationals, including the detention of more than 5,000 noncitizens in an initial roundup immediately following September 11 and two subsequent initiatives directed at registering and deporting Arab and Muslim foreign nationals. Only one of these detainees has been convicted of any terrorist crime; nonetheless, the most sweeping campaign of ethnic profiling the country has undertaken since the Japanese internment continues. By contrast, when the government has proposed measures that would affect citizens more directly, the political process has often imposed constraints -- as when Congress last year killed post-9-11 proposals to create a national identity card and to set up "Operation TIPS," a network of 11 million citizen spies. We want prevention, it appears, only when the costs are borne by someone else.
The national-security strategy abroad is also predicated on double standards. We would not tolerate a world in which every nation that was concerned about another nation's potential threat could use that as a justification for unilateral offensive military action -- a world in which Pakistan could attack India, India attack Pakistan, Iran attack Israel and so on. And as at home, our preventive strategy abroad targets the most vulnerable. As Jonathan Schell has convincingly argued in The Nation, we attacked Iraq rather than Pakistan, North Korea, Russia or Iran, all of which pose much more serious dangers, "not because it [was] the worst proliferator, but because it [was] the weakest."
Second, the administration's strategies seek to circumvent processes designed to forestall precipitate action by requiring objective proof of wrongdoing. As the government's treatment of Zacarias Moussaoui and Jose Padilla has demonstrated, guarantees associated with the criminal process -- such as the right to a lawyer, to call witnesses and to confront the government's evidence -- are obstacles to a preventive strategy. By using noncriminal proceedings -- including immigration hearings, detention of people as material witnesses and military custody of "enemy combatants" -- the administration has denied most of its targets these basic rights. Indeed, the inspector general's recent report on the treatment of immigration detainees labeled "of interest" to the September 11 investigation makes clear that the administration's modus operandi has been to use immigration law for precisely this end.
Where the administration has resorted to the criminal process, it has generally relied on a sweeping statute that allows it to obtain convictions without proof of individual wrongdoing. Virtually every post-9-11 terrorism prosecution has included a charge under a 1996 statute making it a crime to provide "material support" to designated "terrorist organizations." Under this statute, which was hardly ever used before September 11, an individual can be convicted for providing anything of value -- from a book to his own time -- to any group designated "terrorist" in a secret administrative process. It is no defense that one's support furthered only lawful, nonviolent activity. This statute essentially resurrects "guilt by association," a tempting tool for preventive law enforcement. [See "Immaterial and Unsupportable," Alexander Gourevitch.]
The preventive national-security strategy similarly relies on shortcuts, as Bush's decision to bypass the United Nations Security Council when it would not do his bidding illustrated. And the administration's revision of the standard for going to war virtually paraphrases the Supreme Court in Dennis: "The greater the threat, the greater is the risk of inaction -- and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack."
Finally, prevention at home and abroad depends on secrecy. The government has refused to identify most of the approximately 1,200 people it arrested in the first seven weeks after September 11, and to disclose even the number of people detained since then. It tried several hundred foreign nationals in secret. And it has refused to reveal the most basic facts concerning its use of broad new surveillance powers granted it in the wake of September 11.
Secrecy has also ruled the day in foreign affairs. Throughout the run-up to the Iraq War, the administration claimed it knew the Iraqis had weapons of mass destruction and links to al-Qaeda, but simultaneously suggested that it could not reveal the evidence because that would expose critical sources of intelligence. But as months go by without finding evidence of either one, it appears that the administration exploited claims of secrecy to conceal the fact that it simply lacked solid evidence.
The reason that international and domestic laws have long rejected preventive detention and preventive war is that these three defining characteristics -- double standards, avoidance of procedural safeguards and secrecy -- are anathema to the rule of law, which depends upon consistency, procedural regularity and transparency.
Throwing off the constraints of law does not make us more secure. It undermines the legitimacy of our efforts to quell terrorism and makes it less likely that Arab and Muslim communities, the targets of our double standards, will work cooperatively with us to root out al-Qaeda enemies. And it fuels today's unprecedented anti-Americanism, which in turn supports recruitment by the other side.
Our long-term security in the world rests neither on locking up thousands of suspected terrorists who turn out to have no connection to terrorism nor on attacking countries that have not threatened to attack us. On the contrary, it lies in a commitment to fairness, justice and the rule of law. That is the only true strategy of prevention.
David Cole is a professor at Georgetown University Law Center and a lawyer with the Center for Constitutional Rights.