That raises some very, very difficult and compelling issues. I wrote a book about it called Preemption: A Knife That Cuts Both Ways, and the most important part of that title is “a knife that cuts both ways.” That is, it’s very, very difficult to act preventively without violating civil liberties. And an important mission of the rest of my life is to try to construct a jurisprudence that strikes an appropriate balance between the need to prevent and the need to protect civil liberties. The challenge is much greater when it comes to prevention than with the old deterrence, because with deterrence you wait till the crime is committed. You then have a trial with due process, and if a few guilty people go free it’s not such a big deal. But with prevention, the stakes are much higher. If you miss a future 9/11, you’ve contributed to a major catastrophe. On the other hand, prevention carries with it the risk of many false positives, of confining many people who would not carry out the act.
Once you move into the preventive sphere, of course, there’s the risk that this approach could be applied to other forms of domestic crime, and we’re beginning to see that happening with sexual-predator statutes and some other areas of the law. So, once you move away from a firm reliance on the model of deterrence, there could be some risks. But there are some good parts to that too. We should become more preventive in terms of protecting the environment, more proactive. And there’s what the Europeans call the “precautionary principle”: don’t take action unless you’re sure the benefits outweigh the harms. So, it’s a complicated new way of thinking about the world, that I think 9/11 in some ways stimulated — for better or worse.
E.J. Graff, Brandeis Institute for Investigative Journalism
I have been thinking a lot, with great grief and sadness, about how terrible episodes in American history, which I thought had come to an end, are recurring. I’m thinking in particular of McCarthyism, the incarceration of the Japanese during the war, the treatment of the anarchists during the late–19th century. I don’t know how they taught it in school, but what I learned was, “Look how far we’ve come. How could they have ever behaved so badly! Thank god we know better now.” I wish I had been taught more explicitly or had been able to learn that it was all going to come back, that we were going to have to be prepared to deal with these darker things again. That these were ongoing tensions in human life and certainly in American life, issues that regularly recur. That there is no progress narrative.
I’ve also come to learn, again with grief and sadness, about how strong the totalitarian impulse is in human nature. About how many ways it will come up. Of course we all know now about communism and fascism, but this impulse wasn’t just a 20th-century thing. It’s now manifested strongly in religion, in Islamic totalitarian impulses, as well as in Christian evangelical ones. That impulse toward absolutism certainly exists in almost every religion — in fact, in almost every moral system, including the political — but those are the two places in which we’re seeing it come up strongly now. There was a time when it was expressed more commonly in non-theist and atheist ways, and now the same sort of utopian-totalitarianism — that the world would be perfect if I obey the leader or ideology that would make it perfect — tends to be more strongly expressed elsewhere. That longing for moral and political certainty is not something we can eradicate, but we do have to continue to call it out when it comes up.