Call it speculation on disaster, the administration’s policy of guessing where future threats lie and then impinging, imprisoning, invading. That policy, argue Cole (Law/Georgetown Univ.) and Lobel (Law/Univ. of Pittsburgh), is a failure.
“There is nothing wrong with prevention as an objective,” the authors assert; prevention is a goal of public safety as much as of public health. Yet the administration’s “preventive paradigm” attacks the rule of law writ large, and specifically commitments to equality, transparency, due process, checks and balances, basic human rights and other operational principles and ideals. “Bush’s preventive paradigm,” Cole and Lobel maintain, “has violated each of these commitments, imposing double standards on the most vulnerable, operating in secret, denying fair trials, imposing guilt by association, intentionally obscuring clear rules, asserting unchecked unilateral power, and violating universal prohibitions on torture, disappearance, and the like.” In part, this has been effected by an insistence that the state knows best, that the enemies are non-citizens and that secrecy is the only possible stance against terror—though when these claims are examined, by the authors’ account, each turns out to be flawed. And whereas the putative goal is to bring terrorist suspects to justice, the practice has been “to place suspects beyond the reach of any law that might protect them” by “rendering” them to such places as Syria and tucking them away in Gitmo. The authors go on to argue that the preventive paradigm as applied in such places has failed, since coerced information is tainted, just as the preventive paradigm as applied to nations such as Iraq has soundly failed. And it certainly has not kept would-be rogue states from acquiring nuclear weapons, nor terrorist organizations from attracting recruits.
What is to be done? Treat the rule of law “as an asset, not an obstacle,” the authors conclude. A resounding argument contra administration policy, more effectively stated than Alan Dershowitz’s recent Preemption (2006).