Bob Barr

She Proves the Value of Preemptive Arrest
The Atlanta Journal-Constitution

April 5, 2006

The case against U.S. Rep. Cynthia McKinney remains unresolved, but continues to unfold. The Capitol Hill Police force and the U.S. attorney’s office for the District of Columbia continue to gather evidence of last week’s incident in which Georgia’s somewhat-redundantly-self-described “female, black Congresswoman” allegedly slugged a police officer for failing to immediately recognize her as she circumvented a Capitol Hill metal detector. Whether McKinney is arrested and ultimately prosecuted is an open question; but regardless, the incident has sparked a nasty controversy into which the potential defendant has—true to form—injected charges of racism.

To avoid such messiness in the future, the Capitol Hill Police Department might want to take a page from their law enforcement counterparts in Texas. Authorities in the Lone Star State appear to be implementing a program emulating 2002’s hit movie “Minority Report,” in which future cop Tom Cruise arrests still-law-abiding citizens who have been previously fingered by oracles known as “pre-cogs” to be persons who will commit crimes in the future.

The doctrine of pre-emptive arrests, which has already found currency in the Bush administration national security policy of pre-emptive war, makes for a much tidier law enforcement agenda than the current situation in which prosecutors and police have to spend sometimes extensive resources actually proving a crime has occurred and that a particular person is guilty of criminal actions.

Texas law enforcement apparently has found a solution to such time-consuming and bothersome requirements as proof of a crime having been committed beyond a reasonable doubt. Led by that elite and internationally acclaimed law enforcement unit, the Texas Alcoholic Beverage Commission, authorities in the nation’s second-largest state have embarked on an aggressive program of arresting citizens who appear intoxicated inside bars.

Eschewing the traditional, but time-consuming notion that citizens are to be arrested for actions that pose an actual danger to fellow citizens—like driving under the influence of alcohol—Texas’ valiant booze police are mounting undercover operations in bars across the state, on the lookout for patrons exhibiting signs of intoxication, and arresting them before “they become dangerous” or “could” pose a danger. Already, Texas’ finest have arrested thousands of folks who mistakenly thought it was actually not against the law in Texas to enter a business establishment that invited them to enter for the express purpose of consuming alcoholic beverages, and actually do so.

Whether the pre-emptive arrest program in Texas will withstand legal and constitutional challenge remains to be seen. (A similar program launched in late 2002 by the police in Fairfax County, Va., apparently was abandoned after it attracted unwanted publicity.) But consider for a moment how application of the doctrine of pre-emptive police action might make the job of Capitol Hill Police officers—and others all across this great land—so much easier.

No longer would the officers protecting the persons and public buildings of the nation’s Capitol have to wait to be assaulted by an angry and defiant congresswoman before taking action. Nor would they have to spend precious time accumulating evidence to prove their case. They would simply be able to apprehend the soon-to-be-problematic official before the altercation takes place.

In the case at hand involving McKinney, for example, her disdain for the police force on Capitol Hill is well-known and previously exhibited; and on a particular day in which she is harried, busy speaking on a cellphone and clearly having a bad hair day, it would be obvious that she was a time bomb waiting to explode at the nearest person wearing a badge. Pre-emptive arrest would be not only advisable, but essential to protect her, all police officers within her arm’s reach, and the surrounding public. Open and shut case.

Such a program would pay obvious dividends in other areas of Washington as well. I mean, look at how long it has taken the feds to convict Jack Abramoff and a couple of others for engaging in a lengthy and—to many—obvious pattern of public corruption. Think how much that investigation has already cost in terms of hours, dollars and effort; and it’s not over yet. How much simpler it would have been to simply arrest Abramoff the first time he was spotted plying the halls of Congress in a black trench coat and equally black fedora. Who but a purveyor of corruption would so brazenly wear such an obviously corrupt (and corrupting) outfit in Washington? The case against U.S. Rep. Cynthia McKinney remains unresolved, but continues to unfold. The Capitol Hill Police force and the U.S. attorney’s office for the District of Columbia continue to gather evidence of last week’s incident in which Georgia’s somewhat-redundantly-self-described “female, black Congresswoman” allegedly slugged a police officer for failing to immediately recognize her as she circumvented a Capitol Hill metal detector. Whether McKinney is arrested and ultimately prosecuted is an open question; but regardless, the incident has sparked a nasty controversy into which the potential defendant has—true to form—injected charges of racism.

To avoid such messiness in the future, the Capitol Hill Police Department might want to take a page from their law enforcement counterparts in Texas. Authorities in the Lone Star State appear to be implementing a program emulating 2002’s hit movie “Minority Report,” in which future cop Tom Cruise arrests still-law-abiding citizens who have been previously fingered by oracles known as “pre-cogs” to be persons who will commit crimes in the future.

The doctrine of pre-emptive arrests, which has already found currency in the Bush administration national security policy of pre-emptive war, makes for a much tidier law enforcement agenda than the current situation in which prosecutors and police have to spend sometimes extensive resources actually proving a crime has occurred and that a particular person is guilty of criminal actions.

Texas law enforcement apparently has found a solution to such time-consuming and bothersome requirements as proof of a crime having been committed beyond a reasonable doubt. Led by that elite and internationally acclaimed law enforcement unit, the Texas Alcoholic Beverage Commission, authorities in the nation’s second-largest state have embarked on an aggressive program of arresting citizens who appear intoxicated inside bars.

Eschewing the traditional, but time-consuming notion that citizens are to be arrested for actions that pose an actual danger to fellow citizens—like driving under the influence of alcohol—Texas’ valiant booze police are mounting undercover operations in bars across the state, on the lookout for patrons exhibiting signs of intoxication, and arresting them before “they become dangerous” or “could” pose a danger. Already, Texas’ finest have arrested thousands of folks who mistakenly thought it was actually not against the law in Texas to enter a business establishment that invited them to enter for the express purpose of consuming alcoholic beverages, and actually do so.

Whether the pre-emptive arrest program in Texas will withstand legal and constitutional challenge remains to be seen. (A similar program launched in late 2002 by the police in Fairfax County, Va., apparently was abandoned after it attracted unwanted publicity.) But consider for a moment how application of the doctrine of pre-emptive police action might make the job of Capitol Hill Police officers—and others all across this great land—so much easier.

No longer would the officers protecting the persons and public buildings of the nation’s Capitol have to wait to be assaulted by an angry and defiant congresswoman before taking action. Nor would they have to spend precious time accumulating evidence to prove their case. They would simply be able to apprehend the soon-to-be-problematic official before the altercation takes place.

In the case at hand involving McKinney, for example, her disdain for the police force on Capitol Hill is well-known and previously exhibited; and on a particular day in which she is harried, busy speaking on a cellphone and clearly having a bad hair day, it would be obvious that she was a time bomb waiting to explode at the nearest person wearing a badge. Pre-emptive arrest would be not only advisable, but essential to protect her, all police officers within her arm’s reach, and the surrounding public. Open and shut case.

Such a program would pay obvious dividends in other areas of Washington as well. I mean, look at how long it has taken the feds to convict Jack Abramoff and a couple of others for engaging in a lengthy and—to many—obvious pattern of public corruption. Think how much that investigation has already cost in terms of hours, dollars and effort; and it’s not over yet. How much simpler it would have been to simply arrest Abramoff the first time he was spotted plying the halls of Congress in a black trench coat and equally black fedora. Who but a purveyor of corruption would so brazenly wear such an obviously corrupt (and corrupting) outfit in Washington?

Mr. Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.