Stop Me Before I Think Again By Dahlia Lithwick Sunday, July 16, 2006; B03
http://www.washingtonpost.com/wp-dyn/content/article/2006/07/14/AR2006071401 383_pf.html The government claims to have foiled two major terrorism plots in the past month -- both in early planning stages that had not crossed the line from talk to action. In late June, seven men were arrested in Miami on suspicion of concocting a plan to blow up, among other places, the Sears Tower in Chicago. Then, several men were arrested in the Middle East in connection with plotting suicide bombings of transit tunnels between New Jersey and Manhattan. This shift -- toward disrupting attacks long before explosives are stockpiled or targets scoped out -- makes some sense, given what we know about the Sept. 11, 2001, attacks and last year's mass-transit bombings in London. The difference between grandiose gym talk and a lethal terrorist strike can be bridged in a nanosecond, with a box cutter and a phone call. But it's also a shift from prosecuting tangible terrorism conspiracies to prosecuting bad thoughts. And we need to think carefully before we go further down that road. Even the FBI's deputy director has conceded that the plan of the so-called Miami 7 was "more aspirational than operational." Comedy writers lie awake at night dreaming about indictments like this one : The leader of the Miami plotters met with an FBI informant posing as a member of al-Qaeda and promptly demanded "a list of materials and equipment needed in order to wage jihad, which list included boots, uniforms, machine guns, radios and vehicles." In demanding the complete GI Joe Action War Kit, the group's ringleader somehow forgot to ask for something to, er, go boom. The very foolishness of these plans -- plus the fact that the FBI informant may have done more to forward the plot than those who were arrested in connection with it -- makes it easy for defense lawyers and liberal critics to claim that we are coming perilously close to establishing a new class of thought crime in this country. So who has the better argument: a government that claims to be fighting a new type of crime that warrants a preemptive legal response? Or civil libertarians who claim that we are a hop from the science fiction world of Philip K. Dick's story "The Minority Report," in which people are arrested for crimes they hope to commit in the future? The truth, as usual, lies somewhere in between. Some of the early intellectual rowing has been done by Yale Law School's Bruce Ackerman in "Before the Next Attack," his new book about terrorism and civil liberties. Ackerman suggests the criminal law paradigm "is fundamentally inadequate as a complete response" to the terrorism predicament. Conspiracy laws that may work to bring down mobsters, for instance, may not serve us well when terrorist aims and objectives are so different from those of the Mafia. But before we agree to mangle criminal law to prevent largely theoretical attacks, there are important questions that warrant asking: 1. Should it matter that the object of the conspiracy is remote, if not impossible? In the New York and Miami plots, the alleged conspirators had no explosives, no surveillance, and the Miami group had no link to a real terrorist organization. The New York group had barely made it out of Internet chat rooms. Should it matter that these "terror cells" are so often teeming with grandiose bumblers? Maybe not. The twin towers and the London transit system were not attacked by criminal masterminds bearing NASA-grade technology. As Homeland Security Secretary Michael Chertoff put it recently: "It is a mistake to assume that the only terrorist that's a serious terrorist is the kind of guy you see on television, that's a kind of James Bond type. The fact of the matter is, mixing a bomb in a bathtub does not take rocket science." Many experts have argued in recent months that today's more decentralized al-Qaeda increasingly waits for grandiose kooks and "self-starters" to plan attacks on their own. That means today's disaffected braggart is easily converted to tomorrow's subway bomber. 2. Should it matter that most plotters have not yet advanced beyond the chattering phase? As a legal matter, no. Even if the conspirators haven't yet entered the country, or acquired the explosives, or scoped out the target -- as was evidently the case in the New York plot -- they may still be criminally liable under our famously elastic conspiracy laws. And that might still be okay. The real policy question is whether this plot consisted exclusively of chatter or could have ever gotten beyond that stage. We don't yet know enough about the New York bombing plan to answer that (though Mark J. Mershon, the FBI's assistant director for New York, has called the threat "the real deal"). Still, even Americans willing to compromise on civil liberties should be concerned by how the Miami case was handled. The arrests there appear to have been triggered not by some threshold of danger being crossed, but by the conspirators beginning to have doubts about the FBI informant who was stringing them along. If we decide as a nation to move the conspiracy goal posts even further away from the commission of overt acts, let's do so because the plotters are uniquely dangerous, and not because the investigation went sour. 3. Should we even worry about all these details? In one of the strangest legal statements of all time, Attorney General Alberto R. Gonzales said: "I think it's dangerous for us to try to make an evaluation, case by case, as we look at potential terrorist plots and making a decision, well, this is a really dangerous group, this is not a really dangerous group." Really? I thought that's what government lawyers were supposed to do. The most dangerous aspect of these new terrorism arrests isn't that the government nabbed super nice guys. These plotters hate this country and want to harm it. The danger is that there is no nuance, no caution and no shade of gray in this new theory of criminal deterrence by CAT scan -- the proposition that you can arrest a man solely for what's on his mind. Gonzales and his colleagues seem to be falling into a familiar trap: They think that since 9/11 happened because of government inaction, any and all government action should be welcome -- including widespread arrests of genuine plotters along with hapless paintballers. The law works best when it's used as a scalpel, not an ax. So please, let's not start arresting citizens for the badness of their thoughts. Because, whoops, I just had another one. [EMAIL PROTECTED] Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com. © 2006 The Washington Post Company _______________________________________________ Infowarrior mailing list [email protected] https://attrition.org/mailman/listinfo/infowarrior
