Transcript:

My current life work has been to try to find the jurisprudence that constrains what I call the “preventive state”. The state now is moving much more from reacting to violence – deterring people from committing violence by punishing those who’ve already done it – to a proactive, preemptive, preventive mode. Moving in. Stopping people from doing it. Preventive detention such as that which exists in Guantanamo and many other places around the world today. Preventive intelligence gathering. The use of cyberspace and picking up of conversations in space. The use of preventive interrogation, including torture. All of these things are part of one of the most important and yet unwritten about phenomena in the world. The preventive state. The state moving in early. Trying to anticipate. The state moving in against sexual predators. The state moving in against potential terrorists. And what I’ve been trying to do is construct a jurisprudence for that phenomenon.

My large project – which I’ve now been working on for probably . . . since 9/11 in the short term, but almost all of my professional life in the long term – is this notion of the preventive state; that the Constitution and our legal system was built on the premise that we wait until people commit crimes. Then we indict them and prosecute them, give them all the due process safeguards. Apply a standard of better 10 guilty, go free, and then one innocent be wrongly applied . . . be wrongly convicted. We’ve worked on that jurisprudence for thousands of years. The Bible is based on that jurisprudence. Christian legal systems and theology is based on that system . . . Islamic and Anglo-American and western in general. But we’re seeing a paradigm shift. We are now not able, it is thought, to wait until the crime is committed. Particularly if the crime is a nuclear attack, a terrorist attack with biological weapons, with chemical weapons. Sexual predators running rampant. Drunken drivers killing people on our streets. All these potential dangers and harms have moved us ever so subtly, but very, very, discernibly toward the preventive state, where the state is empowered to move in before you’ve done any of these terrible things, and to try to stop you from doing them in advance. An ounce of prevention is worth a pound of cure. A stitch in time saves nine. We all know those clichés, but how do you turn those clichés into jurisprudence? Is it better for 10 potential nuclear terrorists to go free, than for one potential suspect to be detained for six months while we check it out and see whether in fact he is a terrorist? The mantra of better 10 doesn’t really work.

Our legal system traditionally has been based on a theory of deterrents. You threaten punishment, and if somebody does a criminal act you punish them. You do something to them that they don’t want to have happen to them. You put them in prison. You execute them in extreme cases. The new paradigm of suicide terrorism makes our system of deterrents very hard to operate, especially when coupled with individual guilt and individual response. You could deter terrorism if you punish the families of the terrorists; but we can’t do that because we believe in individual guilt. So the combination of the use of deterrents and the requirement of individual guilt make it impossible for us to use the traditional legal methods and legal threats against suicide terrorists. That’s why we need to move in preemptively. That’s why we have to stop it from happening before it happens without trying to analogize humans to animals in any moral sense. When you have a person who will not fear death, and will not stop from doing anything because of the threat of punishment, you really have to treat that person the way you would treat a wild tiger or a wild lion. You don’t reason with a lion. You don’t try to deter a lion. You stop the lion by either building a cage between you and the lion, or by disabling the lion or killing the lion. And that method has been adapted to use against suicide terrorism. So that’s the problem. We haven’t figured out a solution to that because our usual approach to the rule of law doesn’t work. We need to create a new rule of law to govern the use of suicide terrorism. My optimism grows out of the fact that there are people in the world today who are trying to level the playing field and give everybody a chance to be successful, and give them a stake at peace in life. The greatest dangers we face today are people who have such miserable lives, and such false promises of great depths, that they prefer the illusion of paradise to the reality and poverty of the present time. And I think we have to shift that. We have to shift that by making life on earth much better; and by exposing the myth of the hereafter, one of the worst myths that human beings ever created in the service of religion . . . particularly rules that promise reward for murder in a world to come. Very hard to talk people out of that if they honestly believe in the depths of their heart that if they kill civilians, they will be rewarded by sexual fantasies, by food fantasies, by all the great things that they are deprived of in this world. It’s perverse, it’s bizarre, but it’s a reality in many people’s lives.

Recorded On: 6/12/07