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Question: What challenge does terrorism pose to the courts?

Laurence Tribe: I think it’s important to distinguish the question of how the criminal justice system and the legal process in general has tended to focus retrospectively on punishment rather than prevention, which is I think Alan Dershowitz’s central concern, from the question of what role a high court of constitutional law like the United States Supreme Court can and should play in a given period.  I do agree that it’s important for our paradigm of law enforcement to encompass greater attention to harm prevention.  I agree that it’s important to think less about punishment and more about deterrents.  I agree that we need more systematic thought about those things in the context even of preventive warfare of the kind that Alan I think is interested in.  But I don’t think that means that the United States Supreme Court should develop a kind of proactive, how-can-we-prevent-harm mindset.  The court, I think, ought not to become a roving commission out there to prevent harm.  It has to deal with the problems that are brought to it.  The problems that are brought to it in the context of incarceration, detention, interrogation that have prevention as their goal – that presents a new issue for the court.  The court so far has said if we pull together the opinions and the various detainee cases that it has heard – the … case, the … case, the … case – so far said that the power of the government to hold people that the president decides to label unlawful enemy combatants indefinitely for purposes of squeezing information out of them does not exist; that there is no power of indefinite detention to get information.  The only special power that the government has with respect to unlawful enemy combatants is the power to take them off the battlefield, hold them as long as the war goes on so that they don’t go back to the battlefield and then release them.  Now that model is not terribly informative when one is dealing with a “war” that has no armistice at the end.  It may go on forever.  So I think the court needs to refine that formulation. What is the power to detain for purely preventive purposes?  How do you decide that there is good enough reason to think that someone would be in danger if released?  It’s a very hard question. It’s much easier to generate false positives than false negatives there.  Because if you release someone thinking they’re safe and then they do terrible harm, you’ve got a notch on the negative side.  If you hold someone mistakenly believing they would have done harm if you released them, that’s a self-fulfilling prophecy.  You hold them.  They do no harm.  You think you got it right.  So we have to have a calculus that takes into account how easy it is to fool ourselves about these matters.  The very first article that I wrote, the article that I published I guess even before some of my tenure work on trial by mathematics, the abuse of the mathematical process in the legal system was called “An Ounce of Detention in the World of John Mitchell”.  Attorney General John Mitchell in the administration of Richard Nixon was championing the idea of preventive detention – figuring out who was going to commit crimes before they committed them and then holding them in jail.  And I was arguing that whatever power the government has to take people who have demonstrated themselves to be out of control, dangerous to themselves or others, and civilly commit them should not translate into a power to predict that someone will develop an evil tendency, that someone will do something dangerous.  That was really in the context of sort of low-level fears of a single crime involving a single victim.  I think one needs to rethink a little bit the legitimacy of preventive detention in a world where you really can have people who are part of an organization actively involved in training for something like suicide bombing.  You don’t want to let the suicide bomber planner go and say, “Let’s see if he kills anybody in addition to himself, and then what?  Sue his family?”  I mean clearly a more preventive model needs to be developed.

 

Laurence Tribe on the Preve...

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