The New McCarthyism: Repeating History in the War on Terrorism
Georgetown University Law Center
Harvard Civil Rights-Civil Liberties Law Review, Vol. 38, 2003
Many scholars, pundits, and government officials have optimistically argued that the war on terrorism has thus far avoided the mistakes of past crises. Pointing to the punishment of speech during World War I, the internment of the Japanese during World War II, and the imposition of guilt by association during the Cold War, these voices maintain that we have learned from those mistakes, and are less quick to restrict rights and liberties this time around.
This article maintains that while there is certainly some truth to the observation, we should not be too quick to congratulate ourselves. History shows that while the specific tactics of prior crises are often avoided in subsequent crises, their place is taken by slightly different tactics that in principle repeat many of the same mistakes. Thus, in learning to avoid past mistakes, we have learned to adapt certain basic methods of control, rather than to repudiate them. And in many respects, we have since September 11 repeated the categorical mistakes of past crises.
In particular, in times of fear government is asked to engage in preventive law enforcement. We want to prevent the next atrocity from occurring, not just be able to catch the criminals after the fact. Accomplishing this puts significant strain on the criminal law, which is a cumbersome method for preventive law enforcement. Government adapts in two ways: (1) by expanding the substantive bases of criminal liability, and (2) by seeking to avoid safeguards of the criminal process by exploiting administrative measures to effect control. In this essay, I trace these developments in the current crisis and show their basic affinity to strategies adopted during World War I, World War II, and the Cold War. What we have learned from history is how to mask the repetition, not how to avoid the mistakes.
Number of Pages in PDF File: 43Accepted Paper Series
Date posted: February 26, 2003
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