ABSTRACT
In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Prior mass preventive detention campaigns have been similarly unsuccessful and constitutionally suspect. In 1919, after terrorist bombs exploded virtually simultaneously in eight different cities across the United States, the Justice Department rounded up several thousand foreign nationals in what are now known as the Palmer Raids. Ackerman's thesis rests on a chilling description of the threat posed to civil liberties in the post-September 11 world. The basic tradeoff Ackerman proposes is to eliminate contemporaneous judicial review of the legality of detention in exchange for a supermajoritarian escalator. The escalator addresses only one problem with emergency powers - their tendency to last beyond the period of the actual emergency. Ackerman's supermajoritarian escalator rests on an unproven and unprovable premise that emergencies are likely to be short-lived.
