· David Cole
its rules, including the obligation to treat detainees humanely, are inapplicableat Guantánamo and at secret CIA “black sites” where al-Qaeda detainees areheld. Here, too, the motive or denying Geneva Conventions protection wasprecisely to allow interrogators to use coercive means to extract intelligencerom suspects.At home, Attorney General John Ashcrof repeatedly trumpeted a parallelnew “paradigm o prevention” in law enorcement and intelligence gathering. As-serting that it would help prevent the next attack, the administration subjected82,000 Arab and Muslim immigrant men to ngerprinting and registration, sub- jected 8,000 Arab and Muslim men to FBI interviews, and preventively detainedover 5,000 oreign nationals, nearly all o them Arabs and Muslims. As part o itspreventive paradigm, the government adopted an aggressive strategy o pretex-tual arrest and prosecution, holding people on minor charges—such as immigra-tion violations, credit card raud, or alse statements—or on no charges at all, as“material witnesses,” when it suspected them o terrorist ties but lacked the evi-dence to try them or terrorism. On a similar preventive rationale, the adminis-tration pushed or expansive new powers in the USA Patriot Act, and since thenthe FBI reportedly has used the act to issue tens o thousands o “national security letters” annually—administrative subpoenas that demand the secret productiono inormation on customers rom telephone and internet companies and nan-cial institutions without any court review.
And the preventive rationale has beenadvanced to justiy the National Security Agency’s warrantless wiretapping o countless persons in the United States, without congressional or judicial approval,pursuant to an executive order adopted in secret and in contravention o a crimi-nal prohibition on such surveillance.As these examples illustrate, the preventive paradigm puts tremendous pres-sure on the rule o law. Designed to place enorceable constraints on state power,the rule o law generally reserves detention, punishment, and military orce orthose who have been shown, on the basis o sound evidence and air procedures,to have committed some wrongul act in the past that warrants the government’sresponse. Te police can invade privacy by tapping phones or searching homes,but only upon a showing o probable cause that evidence o crime is likely to beound. Individuals can be arrested, but only where there is probable cause thatthey have committed a crime. Tey can be preventively detained, but only wherethere is both probable cause o past wrongdoing and evidence o danger to thecommunity or a risk o ight. Punishment requires proo o guilt beyond a rea-sonable doubt. Nations may use military orce only when subject to attack or im-minent attack. Te administration’s preventive paradigm, by contrast, justiescoercive action—rom detention to torture to bombing—on the basis o specula-tion about uture contingencies, without either the evidence or the air processesthat have generally been considered necessary beore the state imposes coercivemeasures on human beings.