There are indeed other countries that explicitly authorize preventive detention. The practice has a grim history -- apartheid South Africa's slide into a security state featured a number of such laws, for example -- but it also clearly has adherents. But this case poses a special rule of law question: if the material witness statute really was written to authorize holding only those known to be actual witnesses, rather than to authorize holding people for investigation into whether they might turn out to be witnesses, did the fears of terrorism after 9/11 make it legitimate to turn this law to uses which on a fair reading of its terms just weren't authorized?
It's possible, of course, that the statute doesn't spell out its intended application with much clarity, or that its intended uses weren't as narrow as I've just suggested. No doubt these points will be argued in full. But suppose it turns out that the issue is just as I've described: can a statute be twisted away from its original meaning because of the danger of terrorism?
It is, of course, possible to say that the answer to that question is "yes." It's especially possible to say so in a true, unmistakable emergency, when there simply isn't time to use the processes of law. Since I'm writing on Presidents' Day, it's particularly appropriate to remember that Abraham Lincoln apparently took this view when he claimed for himself the power to suspend the writ of habeas corpus. The Supreme Court never ruled on whether Lincoln actually had the constitutional authority he claimed. But after the Civil War, in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 109 (1866), the Court emphatically insisted on the limits on governmental power even during wartime, in a decision that candidly acknowledged that a wartime judgment might have been different:
"During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment."
We are not yet through with the war against Al Qaeda. But we have been at it long enough to know how corrosive the logic of national security can be. Moreover, Mr. al-Kidd was not the victim of a panic-stricken move a few days after September 11, 2001. He was arrested in March 2003. We had had time to move somewhat beyond panic. More important, as a matter of legal and constitutional reasoning, we had had time for Congress to legislate to provide the Administration with any new powers that it wanted. If it didn't seek, or couldn't get, a preventive detention law applicable to U.S. citizens, then there was no such law. And if we are to continue fighting this war, while maintaining our liberties, then we need to be able to rely on the bedrock rule that if there is no such law, then what the government did was without law -- and illegal.
In one respect, however, the issue is more complicated. It could be argued -- and has been -- that the President's duty to protect the nation authorized him to take emergency steps that went beyond otherwise applicable law. Once this argument is accepted, it is hard to see what outer limits there are on it, but it is possible to make the argument nonetheless. What may have happened to Mr. al-Kidd, however, is something else: the President did not assert some special emergency authority to act beyond law, but rather, through Attorney General Ashcroft, twisted a law that did exist and purported to act under it. If there is some sort of residual emergency power that Presidents can wield, our liberty is certainly at risk. But it is less at risk if the President must call that power by its name -- rather than hiding its exercise under the forms of ordinary law. It will be up to the Supreme Court to defend the boundaries of the ordinary law, even if the question of extraordinary law still waits for debate some other day.