Preventive Detention of Immigrants and Non-Citizens in the United States since September 11th

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The attacks of September 11, 2002, have dramatically altered the policy and scape in Washington, but it is important to reject the notion that there is a necessary trade-off between security and civil liberties. One of the most serious threats to civil liberties has been the adoption of a policy of preventive detention that has resulted in the secret jailing of hundreds of Arabs and Muslims when there is no evidence linking them to terrorist activity. This has been done, not by using the limited new authorities granted the government in the post-September 11 terrorism legislation, but by improperly using pre-existing criminal and immigration authorities Secret arrests are antithetical to a democratic society. A targeted investigation that focuses on actual terrorist activity and respects the legitimate political and religious activity of citizens and non-citizens would be more effective than a dragnet approach that has resulted in the secret arrests of hundreds of individuals.


Les attentats du 11 septembre ont change de facon dramatique le paysage politique a Washington. Neanmoins, il importe de rejeter la notion que pour obtenir la security, il faut necessairement sacrifier les libertes civiles en echange. Ainsi, une des atteintes les plus serieuses contre les libertes civiles a ete l'adoption dune politique de detention preventive, qui a permis la detention an secret de centaines de ressortissantsArabes et de musulmans malgre qu'il n'existe aucune prevne les liant aux activites terroristes. Ceci a ete accompli non pas en appliquant les pouvoirs limites donnes an gouvernement par les lois anti- terroristes adoptees apres le 11 septembre, mais en evoquant, a tort, des pouvoirs preexistants daps le domaine du criminel et de l'immigration. Les arrestations secretes constituent l'antithese meme dune society democratique. Par contre, une enquete ciblee se concentrant sur des activites terroristes reelles et menee daps le respect des activites religieuses et politiques des citoyens et des non citoyens, serait bier plus efficace que l'approche dune dragne ratissant large et qui a abouti a l'arrestation secrete de centaines d'individus.

I begin this paper by noting that since September 11 there has been a fundamental change in perspective in Washington, D.C. It is now considered a real possibility that a small nuclear device will be set off in some American city and that possibility underlies the discussions about the difficult problems of what do we do now. If a small nuclear device were to be set off, the pressure to suspend the Bill of Rights would be overwhelming. We civil libertarians could argue that it would be not only an inappropriate, but an ineffective and irrelevant, response to that event; but I have little confidence that we could prevent it if there were a nuclear attack or explosion somewhere in the United States.

I begin also with the recognition that there is a crucial responsibility on the part of the United States government to prevent terrorist attacks. At the same time, I reject the notion that there is some necessary trade-off between civil liberties, human rights and constitutional procedures on the one hand, and security on the other.

While many in the United States have cast the terrible situation we find ourselves in today as one in which we must decide what liberties we are willing to sacrifice for an increased measure of safety, I believe that is neither an accurate nor a helpful analysis. Before asking what trade-offs are constitutional, we must ask what gain in security is accomplished by restrictions on civil liberties. It is only by forcing the government to articulate how each particular restriction will contribute to security that we can have any assurance that the steps being taken will in fact be effective against terrorism. Unfortunately, this has not been the approach of the U.S. government to date.

Rather than outline all of the domestic measures taken by the United States government since September 11 that have raised questions about threats to civil liberties, I will concentrate on a subject that is of interest from a comparative perspective looking at Canada and the United States: the government's use of preventive detention in the fight against terrorism. …