David Cole, The Priority of Morality:
The Emergency Constitution’s Blind Spot, 113 YALE L.J. 1753 (2004).
(Abstract prepared by James Grimmelmann)
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.
In light of this history,
some searingly recent, Bruce Ackerman's proposal to legitimate the
practice of suspicionless preventive detention during emergencies 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.
At bottom, what is most troubling about Ackerman’s proposal is that in
his fascination with the idea of the "supermajoritarian escalator," he never
addresses the fundamental normative question presented by his proposal. Putting innocent people who pose no danger behind bars to
reassure a panicked public is normatively unacceptable, no matter what
"supermajoritarian escalator" has been put in place, and no matter how
much we "compensate" them after the fact.