by James Carafano*
In 2004 a New Jersey police officer noticed a man of Middle Eastern appearance—wearing a wet suit under his business suit, carrying a knife and an underwater camera, and lurking near one of the major bridges crossing over to New York City. Suspicious—not illegal, there was little the officer could do. In another incident, an individual approached a Texas border crossing. Officials checked the Terrorist Screening Center’s watch list. The man’s name was on it. But this list is not an arrest warrant. He was directed back to Mexico.
Such incidents were easy enough to tolerate three years after the horrific terrorist strikes on New York and Washington on September 11, 2001. If they had happened a few days after the attacks, law enforcement, despite what the law says, may have reacted very differently.
It is easy enough to look back and criticize the faults of preventive-detention policies imposed in the wake of a national-security crisis like the outbreak of the Civil War, the First World War, the Second World War, or 9/11.