[Infowarrior] - USA's "Minority Report" Jurisprudence

Sat Jul 15 22:10:50 EDT 2006

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.

dahlia.lithwick at hotmail.com