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The Difference Prevention Makes: Regulating Preventive Justice

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Abstract

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a “paradigm of prevention,” employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pretextual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and do not intrude on liberty, are welcome. But the move to a “preventive justice” model also creates potential for significant abuse. These risks suggest that we should be cautious about adopting preventive approaches, especially where they involve coercion. In part I of this essay, I articulate why preventive coercion is a problem. I respond, in particular, to a recent essay by Fred Schauer, "The Ubiquity of Prevention," which argued that “it is a mistake to assume that preventive justice is a problem in itself [because] preventive justice is all around us, and it is hard to imagine a functioning society that could avoid it.” In part II, I outline the formal constitutional and other constraints that are implicated by preventive measures in the United States, and I demonstrate that these constraints play a relatively small role in the actual operation of preventive measures. In part III, I maintain that informal constraints may actually play a more significant operational role in checking the abuses of prevention.

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Notes

  1. Prepared Remarks of Attorney General John Ashcroft to the Council on Foreign Affairs, Feb. 10, 2003, available at http://www.justice.gov/archive/ag/speeches/2003/021003agcouncilonforeignrelation.htm.

  2. Stephan Salisbury, Mohamed’s Ghosts: A Story of Love and Fear in the Homeland (2010); Diala Shamas, Nermeen Arastu, Mapping Muslims: NYPD Spying and Its Impact on American Muslims (2013), available at http://www.law.cuny.edu/academics/clinics/immigration/clear/Mapping-Muslims.pdf.

  3. See, e.g., Mirren Gidda, Edward Snowden and the NSA files—timeline, The Guardian (UK), July 25, 2013.

  4. See, e.g., Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) (reversing war crime conviction for “material support” of terrorism on the ground that “material support” was not a war crime recognized by international law at the time of charged conduct of alleged driver and bodyguard for Osama bin Laden).

  5. Fred Schauer, “The Ubiquity of Prevention,” in Andrew Ashworth, Lucia Zedner, & Patrick Tomlin, eds.,

    Prevention and the Limits of the Criminal Law (Oxford University Press, 2013), 10–22.

  6. Robinson v. California, 370 U.S. 660 (1962).

  7. Floyd v. City of New York, 2013 U.S. Dist. LEXIS 113271 (S.D.N.Y. Aug. 12, 2013).

  8. Dan Raviv, Funding for fighting Al Qaeda could be cut, ex-spy chief says, CBS News, Oct. 28, 2011, available at http://www.cbsnews.com/8301-503544_162-20126972-503544/funding-for-fighting-al-qaeda-could-be-cut-ex-spy-chief-says/; David Cole, After September 11: What We Still Don’t Know, N.Y. Rev. of Books, Sept. 29, 2011.

  9. See Trevor Aaronson, The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, (2013).

  10. U.S. v. Scales, 367 U.S. 203 (1961).

  11. Brandenburg v. Ohio, 395 U.S. 444 (1969).

  12. See, e.g., Geoffrey Stone, Perilous Times. Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism 311–426 (2004).

  13. David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97 Cal. L. Rev. 693 (2009).

  14. Foucha v. Louisiana, 504 U.S. 71 (1992).

  15. Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, 534 U.S. 407 (2002); Eric S. Janus and Wayne A. Logan, Substantive Due Process and the Involuntary Confinement of Sexually Violent Predators, 35 Conn. L. Rev. 319 (2003).

  16. Stephen Schulhofer, Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws, 7 J. Contemp. Legal Issues 69 (1996); Cole, Out of the Shadows supra note 13.

  17. 481 U.S. 739 (1987).

  18. See Cole, Out of the Shadows, supra note 13 at 706–718.

  19. Al Haramain Islamic Found, Inc. v. United States Dep't of the Treasury, 686 F.3d 965 (9th Cir. 2012); KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 710 F. Supp. 2d 637 (N.D. Ohio 2010). I was counsel for plaintiffs in both of these cases.

  20. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

  21. United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993).

  22. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165–166 (1963) (holding that stripping draft evaders of citizenship was punishment that could not be imposed without the safeguards of a criminal trial); see also, Eric Sandberg-Zakian, Counterrorism, the Constitution, and the Civil-Criminal Divide: Evaluating the Designation of U.S. Persons under the International Emergency Economic Powers Act, 48 Harv. J. on Legis. 95 (2011).

  23. Kennedy v. Mendoza-Martinez, 372 U.S. at 168–169.

  24. United States v. Armstrong, 517 U.S. 456 (1996); McCleskey v. Kemp, 481 U.S. 279 (1987).

  25. Aaronson, The Terror Factor, supra note 9.

  26. Jacobson v. United States, 503 U.S. 540 (1992).

  27. United States v. Russell, 411 U.S 423, 432 (1973), quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960).

  28. 18 U.S.C. 2339B.

  29. Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). I was counsel to Humanitarian Law Project in this case.

  30. For detailed critiques of the Court’s analysis, see David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine, 6 Harv. L. & Pol'y Rev. 147 (2012); Owen Fiss, The World We Live In, 83 Temp. L. Rev. 295 (2011).

  31. Humanitarian Law Project, 130 S. Ct. at 2730–31.

  32. The First Amendment holding in Humanitarian Law Project may be limited to support to foreign organizations, as the Ninth Circuit recently implied in a case striking down restrictions on speech provided as support to a domestic group labeled as terrorist. Al Haramain Islamic Fdn v. U.S. Dept of Treasury, 686 F.3d at 995–1001; Cole, The First Amendment’s Borders, supra note 30.

  33. See, e.g., Eric Janus, Preventive Detention of Sex Offenders: The American Experience Versus International Human Rights Norms, 31 Behavioral Sciences and the Law 328 (2013).

  34. Matthews v. Eldridge, 424 U.S. 219 (1976).

  35. Hamdi v. Rumsfeld, 542 U.S. 507.

  36. Hamdi v. Rumsfeld, 542 U.S. at 533–34.

  37. Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192 (D.C. Cir. 2001). Other courts have required more robust process, including notice of the basis for the designation, and where feasible, an unclassified summary of any classified evidence relied upon, and the provision of access to the classified evidence to counsel with security clearances. Al Haramain Islamic Found., 686 F.3d at 982–988.

  38. Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 Am. Crim. L. Rev. 1261, 1268 (1998).

  39. McCleskey v. Kemp, 481 U.S. 279.

  40. See Aaronson, The Terror Factory, supra note 9.

  41. Whren v. United States, 517 U.S. 806 (1996).

  42. See David Cole, Driving While Immigrant, The Nation, May 12, 2003.

  43. Terry v. Ohio, 392 U.S. 1 (1968).

  44. Center for Constitutional Rights, 2011 NYPD Stop-and-Frisk Statistics, available at http://ccrjustice.org/files/CCR-Stop-and-Frisk-Fact-Sheet-2011.pdf.

  45. Tom R. Tyler, Why People Obey the Law (2006); Tom R. Tyler, Stephen Schulhofer, and Aziz Z. Huq, Legitimacy and Deterrence Effects in Counterterrorism Policing: A Study of Muslim Americans, 44 Law & Soc. Rev. 365 (2010).

  46. David M. Kennedy, Don’t Shoot: One Man, a Street Fellowship, and the End of Violence in Inner-City America (2012). For a more detailed analysis of Kennedy’s project, see David Cole, Our Romance With Guns, N.Y. Rev. of Books, Sept. 27, 2012.

  47. Tamer El-Ghobashy and Michael Howard Saul, New York Police Use of Stop-and-Frisk Drops, Wall St. J., May 6, 2013.

  48. William Stuntz and Dan Richman have argued that, for this reason, pretextual prosecutions are much less likely to be undertaken by state than federal prosecutors. Daniel Richman and William Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Policing, 105 Colum. L. Rev. 583 (2005). State and local police generally have limited resources and a specific jurisdiction, and must dedicate most of their limited resources to responding to serious crimes and bringing the perpetrators of such crimes to justice—for those crimes—within that jurisdiction. Id. at 600–605.

  49. El-Ghobashy and Saul, supra note 47; Center for Constitutional Rights, 2011 NYPD Stop-and-Frisk Statistics, supra note 44.

  50. The NSA has been able to identify only one or perhaps two such cases. See Shaun Waterman, NSA chief’s admission of misleading numbers adds to Obama administration blunders, Wash. Times, Oct. 2, 2013, available at http://www.washingtontimes.com/news/2013/oct/2/nsa-chief-figures-foiled-terror-plots-misleading/?page=all.

  51. See David Cole and Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror 107–109 (2008).

  52. David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism 72–74 (2004).

  53. Id.

Acknowledgments

I wish to thank Alec Walen for astute comments on a draft of this article, as well as the participants in a Robina Institute of Criminal Law and Criminal Justice symposium on preventive justice at the University of Minnesota Law School.

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    David Cole

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Cole, D. The Difference Prevention Makes: Regulating Preventive Justice. Criminal Law, Philosophy 9, 501–519 (2015). https://doi.org/10.1007/s11572-013-9289-7

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