The priority of morality: The Emergency Constitution's blind spot.

• Author: Cole, David
• Position: Response to Bruce Ackerman in this isssue, p. 1029

INTRODUCTION

In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the sidewalk," so he, Ashcroft, would use every law in his power, including the immigration laws, to apprehend "suspected terrorists," lock them up, and prevent the next terrorist attack. (1) As of January 2004, the government had detained more than 5000 foreign nationals through its antiterrorism efforts. (2) By any measure, the program has been spectacularly unsuccessful. None of these detainees has been determined to be involved with al Qaeda or the September 11 conspiracy. Only three have been charged with any terrorism-related crime, and two of those three were acquitted of the terrorism charges. (3) The lone conviction--for conspiring to support some unspecified terrorist activity in the unspecified future--has been called into question by the revelation that the prosecution failed to disclose evidence that its principal witness had lied on the stand. (4)

In June 2003, the Justice Department's own Inspector General issued a sharply critical report on the preventive detention campaign, finding, among other things, that people were detained and treated as "of interest" to the September 11 investigation on such information as an anonymous tip that there were "too many" Middle Eastern men working in a convenience store. (5) Many were initially arrested without charges at all; over seven hundred of the arrests remain secret to this day; and more than six hundred detainees charged with immigration violations were tried in secret, without any showing that any information involved in their immigration hearings was classified. (6) The vast majority were not only not charged with a terrorist crime, but were affirmatively cleared of any connection to terrorism by the FBI. (7) Virtually all of the detainees were from predominantly Arab countries. (8)

Prior mass preventive detention campaigns have been similarly unsuccessful and constitutionally suspect. In 1919, after terrorist bombs exploded virtually simultaneously in eight different cities across the United States, the Justice Department rounded up several thousand foreign nationals in what are now known as the Palmer Raids. They were herded into bullpens, interrogated without lawyers, and charged with technical immigration violations and association with various communist parties. Hundreds were eventually deported. Not one was found to have been involved with the bombings. (9) And in the most infamous preventive detention campaign in American history, 110,000 persons--U.S. citizens and foreign nationals alike--were rounded up and interned during World War II simply because of their Japanese ancestry. None was found to have engaged in sabotage or espionage, the stated justifications for the internment. (10)

Thus, the three principal preventive detention experiences in the United States over the last century all resulted in the mass incarceration of people who turned out not to pose the national security threat that purportedly justified their detention in the first place. Moreover, each campaign was characterized by widespread constitutional abuse. Freed of the ordinary requirement that they demonstrate objective, individualized evidence of dangerousness or flight risk in order to detain suspects, law enforcement officials resorted instead to political association, racial and ethnic identity, and religion as proxies for suspicion. The Palmer Raids and the Japanese internment are widely acknowledged as two of the most shameful moments in American history; the detention of thousands of Arabs and Muslims after September 11 deserves a place in that dubious pantheon.

These examples are not selectively chosen; there are no mass preventive detention success stories in our history. In light of this history, some searingly recent, Brace Ackerman's proposal to legitimate the practice of suspicionless preventive detention during emergencies (11) is strikingly ill-advised. History suggests that we ought to do everything we can to restrict suspicionless preventive detention, not to expand it. While individual instances of preventive detention, predicated on objective showings of danger or flight risk, undoubtedly serve an important security function, there is no reason to believe that suspicionless preventive detention serves any legitimate purpose. Our Constitution already permits the suspension of habeas corpus in highly restricted settings, (12) so restricted that it has been resorted to only four times--most famously by President Lincoln in the Civil War; by President Grant, to deal with the Ku Klux Klan during Reconstruction; by President Theodore Roosevelt, in the Philippines in 1905; and by President Franklin Delano Roosevelt, in Hawaii during World War II. (13) Ackerman's proposal would greatly expand the circumstances in which habeas corpus could in effect be suspended, without any showing that the "public safety requires it." Yet he offers no reason to believe that such measures would make us more secure, and no response to the compelling historical record of abuse.

Of course, Ackerman offers preventive detention only as an example of an emergency power under his "emergency constitution." His ambition is not simply to design a preventive detention scheme; he calls for nothing less than a "sweeping revision of the emergency power provisions currently found in many of the world's constitutions." (14) His basic idea is to give the Executive extraordinary emergency powers--including suspicionless preventive detention--while conditioning the state of emergency on a political process check--the "supermajoritarian escalator"--designed to forestall "permanent" emergencies. Inspired by South Africa's constitution, Ackerman proposes that a majority vote be required to continue the emergency for the first two to three months, that a sixty-percent vote be required to extend the emergency two more months, that seventy percent be required for the next two months, and eighty percent thereafter. (15) Under such a scheme, emergencies would be unlikely to last more than six to seven months in the absence of truly extraordinary consensus.

Ackerman's attempt to impose a meaningful but flexible time constraint on emergency powers is laudable: Undoubtedly one problem with "states of emergency" and their attendant powers is that they have a way of dragging on far longer than the actual emergency does. His insight that political process safeguards are critically important in checking emergency powers is perceptive and important, as is his sense that we should think about emergency powers now, before the next attack sends us into panic mode again. His solution is creative and, if adopted, might even work: The supermajoritarian escalator might actually succeed in putting an end to states of emergency in a timely manner. But time limits are only one problem with emergency powers, and a solution to the durational issue leaves unanswered the more difficult question of precisely what substantive powers ought to be assigned to the government for the duration of the emergency.

The sweeping breadth of Ackerman's title, approach, and stated ambition--to revise the world's constitutions--appears to assume that all emergency powers issues in all constitutional systems are subject to a single elegant solution: His title is not A Preventive Detention Law for the United States, but The Emergency Constitution. But all emergency powers are not alike. Preventive detention is one possible response to the emergency posed by a terrorist attack, but there are many others. In the wake of September 11, for example, we have seen in the United States, to name just a few measures: increased reliance on surveillance and identification regimes; increased cooperation among foreign intelligence and domestic law enforcement agencies; efforts to limit access to potential targets; development of human intelligence sources; data mining; ethnic profiling; expanded criminal sanctions; the use of administrative measures to combat financing of terrorist groups; and increased use of the military to capture, hold, and try the "enemy." Each of these initiatives raises distinct normative issues regarding the tradeoff between security and liberty, and few of those issues would be resolved by a "supermajoritarian escalator." Rather, each initiative requires a direct assessment of distinct substantive value judgments. Like many process scholars before him, Ackerman seeks a magic bullet where there is none.

Ackerman's failure to confront the difficult substantive tradeoffs that specific emergency powers present manifests itself in several ways in his preventive detention proposal. He would eliminate contemporaneous individualized judicial review of the need for any given instance of preventive detention, in order to "authorize[] the government to detain suspects without ... probable cause or even reasonable suspicion." (16) Instead, he would substitute an ill-conceived compensation scheme, whereby "innocent detainees" would not be released, but would be paid for being locked up. Yet this solution fails to reconcile a fundamental contradiction in his proposal: Ackerman wants to authorize detention without suspicion, but at the same time wants to deter detention of innocent persons. The problem is that if detention without suspicion is expressly authorized, there is nothing illegal about detaining innocent persons. And by the same token, if it is wrong to detain innocent persons, as Ackerman's compensation scheme seems to imply, why dispose of the threshold requirement of suspicion in the first place?

Ackerman's rationale appears to be that preventive detention does a public service (regardless of who is detained) by "reassuring" the public in times of...