Preventive Detention, at What Cost?

Whether called "preventive", "indefinite" or "prolonged," prevention detention schemes are essentially lawless, unconstitutional and un-American. At its root, detention without trial threatens democracy.
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A family vacation over Independence Day offered a poignant reminder of why, over 30 years ago, my parents sought refuge in the U.S. Fleeing the racial hostility they encountered in Britain after escaping the brutality of the Indian Subcontinent's Partition, they found in rural Missouri economic opportunity, political freedom, and small town Midwestern hospitality. Today, the specter of preventive detention calls into question whether my parents' grandchildren will enjoy the same freedom.

Warrantless domestic spying, detention without trial, torture, and excessive secrecy raised concerns across the political spectrum and fueled recent change in the White House. These policies, however, remain equally noxious under the new administration, which currently entertains proposals beyond even its predecessors' wildest plans.

We should begin by removing the beltway spin. Whether called "preventive," "indefinite," or simply "prolonged," prevention detention schemes are essentially lawless, unconstitutional, and un-American. And whether established through an executive order or an act of Congress, they would undermine -- not enhance -- our national security.

At root, detention without trial threatens democracy. According to NYU law professor David Golove, "The struggle for constitutional liberty," wherever people have sought it, includes "a struggle against preventive detention." Our Founders did not champion the rule of law in a vacuum. They confronted threats, including arbitrary detention, and intended the Bill of Rights to end and prevent them.

The rights to Due Process, legal representation, and to examine one's accusers, witnesses and evidence are fundamental. Beyond mere technicalities, these procedural protections are necessary to protect the innocent and lend legitimacy to judicial decisions.

Benjamin Wittes and others propose limiting these rights and detaining individuals accused of being "dangerous," based on hearsay evidence. But they overlook the central problem: accusations are unreliable.

Courts admit evidence of actual events, rather than predictions or hearsay, precisely to exclude irrelevant or unreliable information. Torture, for instance, is notorious for yielding inaccurate intelligence and forcing false confessions. Equally unreliable are individuals who identify suspects in exchange for payment, such as tribesmen who captured many Guantanamo detainees, or ex-convicts hired by the FBI to infiltrate mosques across the country.

Our intelligence agencies, whose hearsay evidence would be admissable under some detention proposals, have proven their unreliability. Time and again, attempts to identify dangerous individuals have instead swept up innocent people, including U.S. citizens of all colors.

Most of Guantanamo Bay's hundreds of detainees have been either released or declared harmless. We have abducted law-abiding people from allied countries and outsourced their torture (Canadian Maher Arar); detained and smeared law-abiding Caucasian and Asian American citizens (attorney Brandon Mayfield and Chaplain James Yee); and tortured a U.S. citizen of Latino descent (Jose Padilla). In addition, government "watch lists" continue to cast unjustified suspicion on over a million law-abiding Americans.

Given the unreliability of intelligence sources, indefinite detention based on evidence inadmissible in federal courts would hardly enhance security. It would, however, undermine freedom and -- by removing checks on executive avarice and arbitrariness -- leave no one safe: under an administration hostile to dissent, an unpopular bumper sticker or dispute with a neighbor could land you in prison.

Even if hearsay evidence were reliable, the security benefits of preventive detention would be trivial. Individuals can be imprisoned by federal courts under existing laws for even providing humanitarian support to regions governed by militants -- let alone actually planning terrorist attacks. The only potential "threats" addressed by preventive detention, then, are individuals accused without reliable evidence.

Whom, exactly, would these individuals be? In both the distant and recent past, America has criminalized law-abiding people for their politics (through the Alien and Sedition Acts, the Palmer raids, COINTELPRO, and the Red Scare, for example) or race, ethnicity or religion (through the Japanese internment, NSEERS, and Operation Frontline, for example). By expanding this shameful list -- and by further eroding our international claims to defend the rule of law -- preventive detention would only undermine the security of law-abiding Americans and help our enemies in their efforts to recruit foot soldiers.

Our Founders crafted the Constitution over 200 years ago to balance strong government against individual rights. Their vision has served us well through the World Wars, periods far more dangerous than ours, and is fundamentally incompatible with proposed detention schemes. For the Constitution to survive today's "war on terror," we Americans who value freedom must once again raise our voices to defend it.

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