Te Preventive Paradigm and the Rule o Law:How Not to Fight errorism

David Cole

According to a Bush administration Justice Department website, www.lieandlib-erty .gov, we are “winning the war on terrorism with unrelenting ocus and unpre-cedented cooperation.” We have captured or killed some 3,000 al-Qaeda“operatives,” including two-thirds o its leadership. We have disrupted terroristplots all over the world—the website claims 150, although President Bush in a re-cent speech claimed only 10. Te Justice Department has prosecuted over 400 in-dividuals in “terrorism-related cases” since 9/11, and obtained convictions orguilty pleas in more than 200 o these cases. It claims to have broken up terroristcells in Bualo, Detroit, Seattle, Portland (Oregon), and Northern Virginia. Over515 oreign nationals linked to the investigation o 9/11 have been deported. Mostimportant, and most salient or Americans, there has not been another terroristattack on U.S. soil in the more than six years since 9/11.O course, on May 1, 2003, President Bush also inamously proclaimed vic-tory in Iraq, in bomber jacket regalia aboard the aircraf carrier USS

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shortly thereafer, he announced that “we ound the weapons o massdestruction.” Since then, almost 4,000 American ser vicemen and ser vicewomenand at least twenty times as many Iraqis have died in Iraq, and we still have not

Te Preventive Paradigm and the Rule o Law · 

ound any weapons o mass destruction. So victory proclamations rom this ad-ministration deserve a dose o skepticism.How does one measure victory in the “global war on terrorism”? In April2004, the State Department reported that terrorist incidents worldwide haddropped in the previous year, a act Deputy Secretary o State Richard L. Armi-tage promptly cited as “clear evidence that we are prevailing in the ght” againstterrorism. wo months later, a chagrined Colin Powell acknowledged that thedepartment had miscounted, and that in act terrorism worldwide had increased.Where the initial report stated that the number o injuries resulting rom interna-tional terrorist incidents had allen rom 2,013 in 2002 to 1,593 in 2003, the newreport conceded that, in act, terrorist-related injuries had actually risen to 3,646.In 2005, the State Department eliminated numbers rom its annual terrorism re-port, saying they were too di cult to track accurately, but soon thereafer a leaksuggested another reason or the omission: government analysts had ound thatterrorist incidents worldwide had jumped threeold rom 2003 levels, with 651 at-tacks in 2004 resulting in 1,907 deaths. Tis can hardly be interpreted as progressin the global war on terror.Te administration insists that “everything changed” afer 9/11 and that wemust operate within a new paradigm o prevention. When suicide bombersthreaten to attack us, prosecution afer the act is a patently insu cient response:we must stop them beore they act. Citing the need to prevent terrorist attacks,the administration has invoked the “preventive paradigm” at home and abroad asa justication or abandoning traditional limits on the use o coercive state power.Tis has reed the state to use orce not merely reactively, to deend against attacksor to punish wrongdoers, but proactively, to prevent terrorist attacks beore they are launched. Tus, the Pentagon’s 2002 National Security Strategy advanced anew and controversial “preventive” justication or going to war, arguing that inlight o the threats now posed by weapons o mass destruction, war is justied notonly when the nation is under attack or the threat o imminent attack—the only justications recognized by international law—but also when we ace a morespeculative, but potentially catastrophic, uture threat. Tis was the asserted the-ory behind attacking Iraq. No one argued that an attack by Iraq on the UnitedStates was imminent, but the administration contended that the potential or at-tack with weapons o mass destruction at some undetermined time in the utureand by some undetermined terrorist group that might obtain the weapons romIraq was su cient to justiy war now.Te administration has similarly deended the use o cruel, inhuman, anddegrading treatment to interrogate al-Qaeda suspects on the ground that theinormation so obtained may help prevent uture attacks.

It has cited a “newparadigm” to argue that the Geneva Conventions and other rules o war do notapply to the conict with al-Qaeda. It claimed that the Geneva Conventionsapply only to wars between nations and internal civil wars and, thereore, that

 · 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 intelligencerom suspects.At home, Attorney General John Ashcrof repeatedly trumpeted a parallelnew “paradigm o prevention” in law enorcement 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, subjected 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 inormation on customers rom telephone and internet companies and nan-cial institutions without any court review.

And the preventive rationale has beenadvanced to justiy 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 enorceable 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 wrongul 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 beound. 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, justiescoercive 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 beore the state imposes coercivemeasures on human beings.