Francis Morrone thinks that this article by Mark Helprin is a "must-read." I don't happen to agree but what is interesting is that the Helprin article and another piece by a fellow named Thomas Powers both discuss, to a small and large degree respectively, "preventative detention" as a means of battling terrorism.
Crooked Timber noted the Powers' article but lets it off just a bit too lightly, I think. I left this comment (more or less) there:
"What puzzles me about Powers is that it seems to me that we in the USA already have preventative detention: it’s called conspiracy law. The crime of conspiracy consists simply of “conspiring” with one other person to commit a crime.
"You don’t have to actualy commit the crime — just plan it. And the degree to which you plan it is very flexible. Some concete action must have been done -- but it might be as little, I believe, as buying a blasting cap. An aggressive prosectutor might well convince a jury that purchasing a one-way ticket is a sufficient act.
"The existence of the crime of conspiracy seems like such an obvious riposte to Powers that I wonder what, if anything, I am missing."
On futher reflection there is one thing which "preventative detention" might offer: ability to lock up an individual since conspiracy, by definition, involves two or more people.
But then, so what? The horrendous crimes/acts of war which we have seen and which we characterize as "terrorism" have almost (the unibomber the sole exception, to my knowledge) have all been done by groups -- fairly substantial groups, in fact -- of people. Conspiracy law would it seem to suffice quite nicely, at least for the actions which scare us. Let's worry about the lone terrorist when we have gotten the current situation in hand.
(And if you think that conspiracy law can be trumped by the head terrorist delegating an operation to a single person, you have missed the power of conspiracy law: the crime was comitted in that very delegation.)
What we lack is not sufficient power under law but the intelligence -- no pun intended -- to find people who are planning bad things.
UPDATE: A concerned reader tells me that I should be embarrassed -- Columbia grad and all that -- for using the word "preventative." She writes: I hate to be such a nag, but THERE IS NO WORD "PREVENTATIVE"!!!!!!! It's "preventive".
But then I go and find this definition of PREVENTATIVE. What do I do? The Powers' article uses "preventive" and so in terms of style, consistency etc I should probably use that spelling. But is "PREVENTATIVE" incorrect?
(On reflection I do find "preventative" a bit awkward as a sound. So I shall try to avoid it in the future. But, strictly speaking, was I wrong? And, more significantly, is Dictionary.com wrong?)
On reflection I do find "preventative" a bit awkward as a sound. So I shall try to avoid it in the future. But, strictly speaking, was I wrong?
No, you were not wrong. Preventative is a legitimate word.
ACD
Posted by: A.C. Douglas | Sep 20, 2004 at 11:17 AM
Preventive detention did exist in the UK - I think in the 1950s and early 60s as a sort of 3 strikes and out law. Basically if the judge thought you were an incorrigible (I think that was the word) criminal he could order a much longer sentence than the crime wqould normally justify. Things like 'hard labour' may have come into it too. Haven't got time to google a better response but when I have time I will persue it.
Posted by: ian | Sep 20, 2004 at 12:09 PM
I should have added in the interest of completeness that although preventative is correct as both adjective and noun, it works best as a noun. Ditto preventive as an adjective.
ACD
Posted by: A.C. Douglas | Sep 20, 2004 at 12:27 PM
The significant difference between preventative detention and the crime of conspiracy is really a matter of proof and the rights which attend the prosecution of each.
Preventative detention in no case requires any sort of legal proof; the government locks you up on the basis of rumours, suspicions, anonymous and protected government informants, and clandestinely collected information, and never has to expose that information to an adversarial process to determine its legal sufficiency. In short, they don't have to prove anything and you get no chance to disprove anything.
Conspiracy on the other hand is a crime. You can only be detained a brief time before a court decides your disposition and sets the time of a trial with full criminal rights, including the right to council, to present evidence, and to cross-examine witnesses (things which the military administrative hearings the Pentagon proposes do not allow or limit). The state must prove the charge of conspiracy beyond a reasonable doubt. One can only be sentenced to a legally defined sentence, which may not be cruel or unusual, if convicted; this is not the case with preventative detension where there is no set sentence, only a possibility of preiodic review of the necessity of your confinement.
Finally, in a conspiracy, one may repudiate one's intent to participate in any crime by word or deed prior to the act and thus destroy the possibility you can be prosecuted for your conspiracy. With a terrorist 'conspiracy', repudiation does not seem to be sufficient to exonerate one from legal liability. Simply plotting a terrorist attack, regardless of the plan's abandonment, is a crime. Nor is mens rea, an evil intent, a requirement regarding terrorist conspiracy crimes which could expose one to detention. Simply associating with or transacting with certain persons involved in terrorist organizations, even in the abscence of any knowledge of terrorist aims, or any intent to further a terrorist act, can subject you to criminal penalties and/or preventitive detention under new anti-terror laws.
In summary, conspiracy includes all the procedural and constitutional protections of the criminal justice system, while preventitive detention and the new terrorism 'crimes' that may lead to such detensions include few or none of the standard criminal protections outside of habeus corpus now required by the Hamadi case.
Posted by: Michael | Sep 21, 2004 at 03:49 PM
The significant difference between preventative detention and the crime of conspiracy is really a matter of proof and the rights which attend the prosecution of each.
Preventative detention in no case requires any sort of legal proof; the government locks you up on the basis of rumours, suspicions, anonymous and protected government informants, and clandestinely collected information, and never has to expose that information to an adversarial process to determine its legal sufficiency. In short, they don't have to prove anything and you get no chance to disprove anything.
Conspiracy on the other hand is a crime. You can only be detained a brief time before a court decides your disposition and sets the time of a trial with full criminal rights, including the right to council, to present evidence, and to cross-examine witnesses (things which the military administrative hearings the Pentagon proposes do not allow or limit). The state must prove the charge of conspiracy beyond a reasonable doubt. One can only be sentenced to a legally defined sentence, which may not be cruel or unusual, if convicted; this is not the case with preventative detension where there is no set sentence, only a possibility of preiodic review of the necessity of your confinement.
Finally, in a conspiracy, one may repudiate one's intent to participate in any crime by word or deed prior to the act and thus destroy the possibility you can be prosecuted for your conspiracy. With a terrorist 'conspiracy', repudiation does not seem to be sufficient to exonerate one from legal liability. Simply plotting a terrorist attack, regardless of the plan's abandonment, is a crime. Nor is mens rea, an evil intent, a requirement regarding terrorist conspiracy crimes which could expose one to detention. Simply associating with or transacting with certain persons involved in terrorist organizations, even in the abscence of any knowledge of terrorist aims, or any intent to further a terrorist act, can subject you to criminal penalties and/or preventitive detention under new anti-terror laws.
In summary, conspiracy includes all the procedural and constitutional protections of the criminal justice system, while preventitive detention and the new terrorism 'crimes' that may lead to such detensions include few or none of the standard criminal protections outside of habeus corpus now required by the Hamadi case.
Posted by: Michael | Sep 21, 2004 at 03:50 PM