Punish or Surveil

Abstract:     
This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were the government's only option. When it deemed judicial mechanisms unable to protect state security - on account, for example, of its unwillingness to disclose secrets of state - the Executive resorted to surveillance, the second prong of established policy. As for present options, the Article shows the error in the premise that the attacks of September 11 exposed elemental defects in this policy - called here, with a nod to Foucault, "punish or surveil." The government's post-September 11 third-prong option, moreover, is no improvement. The Article demonstrates that reinforcement of the established, two-pronged policy is the present option that promises best to protect both individual and national security.

Keywords: terrorism, criminal justice, surveillance, national security, courts-martial, military justice, federal courts, law of war, military commissions

JEL Classifications: K10, K14, K33, K40, K41, K42, K19

Accepted Paper Series