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Academic essay on preventive state references civil libertarians’ tolerance for off‑books torture

The passage is a scholarly self‑description that mentions opinions of well‑known lawyers (Floyd Abrams, Harvey Silverglate) about off‑the‑books torture, but provides no concrete allegations, transacti Author claims to have coined "The Preventive State" and teaches on predictive policing and preventiv Cites civil libertarians Floyd Abrams and Harvey Silverglate expressing conditional support for no

Date
November 11, 2025
Source
House Oversight
Reference
House Oversight #017167
Pages
1
Persons
2
Integrity
No Hash Available

Summary

The passage is a scholarly self‑description that mentions opinions of well‑known lawyers (Floyd Abrams, Harvey Silverglate) about off‑the‑books torture, but provides no concrete allegations, transacti Author claims to have coined "The Preventive State" and teaches on predictive policing and preventiv Cites civil libertarians Floyd Abrams and Harvey Silverglate expressing conditional support for no

Persons Referenced (2)

Steven Pinker

“4.2.12 WC: 191694 Kosslyn on Neurobiology and the Law; a large class with Professor Steven Pinker on the subject of Taboos; and a series of freshman seminars entitled Where Does Your Morality Come...”

Alan Dershowitz

“...d, in a democracy, be subjected to the checks and balances not only by the other branches of 2 See Alan Dershowitz, Finding Jefferson (Hoboken, NJ: John Wiley & Sons, 2008). 3 See Alan Dershowitz, “Preventive Disb...”

Tags

torture-policyacademic-writingpolicy-influencecivil-libertiesgovernment-secrecypreventive-statelegal-theoryhouse-oversight
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4.2.12 WC: 191694 Kosslyn on Neurobiology and the Law; a large class with Professor Steven Pinker on the subject of Taboos; and a series of freshman seminars entitled Where Does Your Morality Come From? My teaching and academic writing have centered on several overarching themes. Between my earliest articles on the preventive detention of the dangerously mentally ill and my recent series of books on the prevention of terrorism, my major academic focus has been on prediction and prevention of harmful conduct. I’ve taught numerous classes about that and related issues. The writings ranged from the preemption and prevention of harmful conduct by the mentally ill, to the effort to predict which kinds of speeches and writings might lead to violence.” They included articles and books on preventive detention of suspected terrorists, preventive interrogation and surveillance methods designed to secure real-time intelligence information necessary to prevent terrorism, preemptive military actions, pre-trial detention of ordinary criminals, preventive genetic testing and inoculation, preventive character testing,~ and preventive profiling. As to all of these issues, I have sought to balance the imperatives of due process, liberty and decency, against the legitimate needs of national security and crime prevention. I coined the term “The Preventive State” and have been thinking, teaching and writing about its increasing dangers for half a century. I believe I was the first academic to focus on this problem in a systematic way. The overt text of many of my books, articles and classes dealt in large part with the substantive and procedural issues growing out of prediction and prevention of harmful conduct—the movement we are experiencing toward “the preventive state’”—and the jurisprudential problems associated with this movement. There is, however, a more subtle swbrext that runs through not only the writings about prevention, but virtually all my other writings as well. This subtext is the need in a democracy for openly articulated criteria and standards, whenever states (or state-like institutions) take actions that affect the rights of individuals whether these actions are preventive or reactive in nature. This need may seem obvious, since democracy cannot operate in the absence of visibility and accountability. Yet in virtually all of the areas about which I have chosen to write and teach, the criteria and standards for government action have been unarticulated or hidden from public view. Moreover, there have been some who have argued that it is wiser, even in a democracy, sometimes to hide from public view (and hence public scrutiny) what the government is doing.** Some governmental decisions and actions must, of course, be kept secret, at least for a time. Espionage activities, weapon development, military planning and the like must, by their very nature, be kept under wraps if they are to succeed. But broad policy decisions should, in a democracy, be subjected to the checks and balances not only by the other branches of 2 See Alan Dershowitz, Finding Jefferson (Hoboken, NJ: John Wiley & Sons, 2008). 3 See Alan Dershowitz, “Preventive Disbarment: The Numbers Are Against It,” American Bar Association Journal 58 (Aug. 1972): 815. 4! AsT wrote in Why Terrorism Works: In my debates with two prominent civil libertarians, Floyd Abrams and Harvey Silverglate, both have acknowledged that they would want nonlethal torture to be used if it could prevent thousands of deaths, but they did not want torture to be officially recognized by our legal system. As Abrams put it: “In a democracy sometimes it is necessary to do things off the books and below the radar screen.” Alan Dershowitz, Why Terrorism Works (New Haven: Yale University Press, 2002): 151. See also Richard Posner, Quoted pp infra. 80

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