The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office.
A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system. Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty. Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.” Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest, charge, and prosecute suspected terrorists. Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”
It is well known that the American Revolution was spurred in large part by the colonists’ reaction to King George’s use of the military to enforce English laws in the colonies. After the colonists had become sufficiently disgruntled by the increasingly martial measures imposed by the King, the drafters of the Declaration of Independence listed among its central complaints the tendencies of the English Crown “to render the Military independent of and superior to the Civil Power.” Just as King Charles had been beheaded in 1649 for violating what became a fundamental Anglo- American value – that soldiers are respected for defeating enemies of the state but are never to be used against their civilian neighbors – King George lost the colonies when he employed troops to control disorderly civilians.