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The Priority of Morality: The Emergency Constitution's Blind Spot |
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David Cole [View as PDF]
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113 Yale L.J. 1753 (2004)
INTRODUCTION
In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the sidewalk," so he, Ashcroft, would use every law in his power, including the immigration laws, to apprehend "suspected terrorists," lock them up, and prevent the next terrorist attack. As of January 2004, the government had detained more than 5000 foreign nationals through its antiterrorism efforts. By any measure, the program has been spectacularly unsuccessful. None of these detainees has been determined to be involved with al Qaeda or the September 11 conspiracy. Only three have been charged with any terrorism-related crime, and two of those three were acquitted of the terrorism charges. The lone conviction--for conspiring to support some unspecified terrorist activity in the unspecified future--has been called into question by the revelation that the prosecution failed to disclose evidence that its principal witness had lied on the stand.
In June 2003, the Justice Department's own Inspector General issued a sharply critical report on the preventive detention campaign, finding, among other things, that people were detained and treated as "of interest" to the September 11 investigation on such information as an anonymous tip that there were "too many" Middle Eastern men working in a convenience store. Many were initially arrested without charges at all; over seven hundred of the arrests remain secret to this day; and more than six hundred detainees charged with immigration violations were tried in secret, without any showing that any information involved in their immigration hearings was classified. The vast majority were not only not charged with a terrorist crime, but were affirmatively cleared of any connection to terrorism by the FBI. Virtually all of the detainees were from predominantly Arab countries.
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