Document Type

Article

Publication Date

2003

Abstract

This Essay will argue that the government has invoked two methods in particular in virtually every time of fear. The first, discussed in Part I, involves a substantive expansion of the terms of responsibility. Authorities target individuals not for what they do or have done but based on predictions about what they might do. These predictions often rely on the individuals' skin color, nationality, or political and religious associations. The second method, the subject of Part II, is procedural-the government invokes administrative processes to control, precisely so that it can avoid the guarantees associated with the criminal process. In hindsight, these responses are virtually always considered mistakes. They invite excesses and abuses, as many innocents suffer without any evident gain in security. And most significantly, they compromise our most basic principles- commitments to equal treatment, political freedoms, individualized justice, and the rule of law. In the current war on terrorism, just as in prior times of fear, our government has adopted both substantive and procedural shortcuts toward the end of preventive justice. While it has altered slightly the tactics of prevention to avoid literally repeating history, in its basic approach the government today is replaying the mistakes of the past. All we have learned from history is how to mask the repetition, not how to avoid the mistakes.

Publication Citation

38 Harv. C.R.-C.L. L. Rev. 1-30 (2003)