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Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of emergency powers.

Part II turns to the details, and finds fatal shortcomings in the proposed implementation of Ackerman’s scheme. First, the limits it prescribes would do nothing to respond to the preventive detention abuses so evident in the post-September 11 roundup; with the exception of three individuals held as “enemy combatants,” all the domestic detentions were accomplished without resort to any “emergency” powers. Second, Ackerman’s after-the-fact compensation scheme fails to confront the basic question of who deserves compensation and why. As a result, the scheme would not have the deterrent effect he claims and, on the contrary, would legitimate detention of innocent people. Third, despite Ackerman’s purported quid pro quo of preventive detention authority for a supermajoritarian escalator check, many and perhaps most preventive detentions would never be affected by the supermajoritarian escalator, as they would typically occur in the initial weeks following the attacks, before the escalator kicks in.

Part III contends that Ackerman has failed to confront the central normative questions presented by his proposal—namely, whether it is ever justified to incarcerate innocent people without suspicion, whether reassuring a public in panic is an acceptable justification for such suspicionless detention, and whether preventive detention without prompt judicial review ought to be countenanced outside a battlefield. Ackerman proposes to do away with the two guarantees essential to any acceptable system of nonwartime preventive detention—a threshold requirement of objective suspicion and access to prompt judicial review. Eliminating either guarantee would violate fundamental commands of both American constitutional law and international human rights law. Indeed, detaining people without suspicion in the name of reassuring a panicked public violates basic commitments of a moral society by treating individuals not as ends in themselves, but as means to a dubious public relations end. Such a scheme can be defended, if at all, only on the crudest utilitarian grounds, grounds that Ackerman himself in earlier work has strongly and correctly condemned. Even from a utilitarian perspective, moreover, it is not clear how suspicionless preventive detention would maximize overall utility, as a detention scheme that eliminates suspicion as a predicate for detention should reassure no one.

Publication Citation

113 Yale L.J. 1753-1800 (2004)