When Terror is a Thoughtcrime

Dahlia Lithwick has an excellent piece on the potential dangers of applying current conspiracy laws to terrorism. The question she poses is this: When does arresting people who are “planning” attacks, but have no capability to actually make it happen, cross the line from conspiracy to thoughtcrime?

This shift—toward disrupting attacks long before the explosives are stockpiled or the targets scoped out—makes some sense, given what we know about the 9/11 attacks and last year’s London subway bombings. The difference between grandiose gym talk and a lethal terrorist strike can be bridged in a nanosecond. But before we shift completely from prosecuting cognizable terror conspiracies to prosecuting bad thoughts, we need to think carefully.

Even the FBI has conceded that the so-called Miami 7’s plan was “more aspirational than operational.” Comedy writers lie awake at night dreaming about indictments like this: The leader of the Miami plotters met with an FBI informant posing as a member of al-Qaida and promptly demanded “a list of equipment needed, in order to wage jihad, which list included boots, uniforms, machine guns, radios and vehicles.”
Click Here!

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 for 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.

Lithwick doesn’t pretend that there are any easy answers to this question, because there simply aren’t any. When it comes to random acts of violence, it’s tough to tell when bluster ends and actual planning begins.

There are two primary dangers that I can see in stretching our definition of “conspiracy” and applying it to terrorism. One is that we are potentially wasting law enforcement resources by going after guys who talk big but pose no real threat. Second is that, because we’re targeting guys who don’t pose any real threat, we end up creating a threat. Like, say, the impressionable little brother of some guy who just liked to drink beer and spout off about the “Great Satan” who ends up becoming a real terrorist.

Of course, the danger in being too cautious is obvious: real terrorists slip through the cracks, and people die.

It’s a tough line to walk, but its also pretty damned important to walk it. Even more important, it’s necessary to talk about it in a civilized and realistic fashion. Though I have little hope for that, given the current political climate.

FILED UNDER: Law and the Courts, National Security, Terrorism, US Politics, , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. Allan says:

    There are two primary dangers that I can see in stretching our definition of â??conspiracyâ?? and applying it to terrorism. One is that we are potentially wasting law enforcement resources by going after guys who talk big but pose no real threat. Second is that, because weâ??re targeting guys who donâ??t pose any real threat, we end up creating a threat.

    This is so off-the-wall as to be laughable.

    If we try to prevent terrorist activity, by definition we will “waste” law enforcement resources by stopping crimes before they happen.

    Mohammed Atta on 9/10 was a pathetic strip club patron. On 9/12, he was the world’s most famous terrorist.

    The Miami Morons intended to cause harm, that much is clear. Just because their Al-Qaeda contact turned out to be FBI does not mean they were harmless. What if they’d gotten hold of a real AQ man?

    And now, according to you, we’re creating the threat by trying to stop it! There were certainly never any aspiring terrorists on American soil before the Miami FBI bureau entrapped these poor, hapless, incompetent souls into wanting to destroy the Sears Tower, right?

    I don’t know why James lets you post these obvious trolls.

  2. Alex Knapp says:

    You know, Allan, I never said that we shouldn’t arrest the folks in Miami. And if you read the article I linked to, neither does Lithwick. But the arrests there are right out on the edge between “planning a terrorist attack” and “drunken bluster.” Until the case goes to trial, I doubt we’ll know exactly which side of the line they were on.

    But as I said in the very post you’re calling a “troll” (perhaps because it expresses an opinion that you disagree with), there’s a risk in caution, too. Too much concern over crossing the line between planning and bluster and we may see a terrorist attack.

    So my concern, and Lithwick’s, is: how do we walk this line? Right now, I don’t have a good answer, but I think the question ought to be asked and considered, unless you want to live in a world where Jerry Bruckheimer’s screenwriters get arrested for “planning a terrorist attack” within the pages of a crappy, action-packed screenplay.

  3. Allan says:

    So my concern, and Lithwickâ??s, is: how do we walk this line? Right now, I donâ??t have a good answer, but I think the question ought to be asked and considered, unless you want to live in a world where Jerry Bruckheimerâ??s screenwriters get arrested for â??planning a terrorist attackâ?? within the pages of a crappy, action-packed screenplay.

    I’m sure you could put together a well-written post about the evils of our cricket overlords, but until that comes to pass, I’m not going to get too worked up over it.

    This thoughtcrime nonsense only feeds the notion that the government is all-powerful and omniscient. It isn’t. 9/11 proved it (unless of course you believe it was an inside job), and we’ve had many reminders since.

    It’s axiomatic that terrorists only have to be successful or lucky once for thousands of Americans to pay the price of non-vigilance with their lives.

    I don’t sanction arresting people for their thoughts. But that’s never happened. Unless you have knowledge of MLB spy satellites working for the NSA that can read our minds, every suspected terrorist must take specific, deliberate actions in order to draw law enforcement’s attention.

    Criminal intent is more than just wishing for something to happen. I wish I had a million dollars. But until I case a bank, make plans for breaking in, and/or arrange for a getaway vehicle, I haven’t committed a crime. And yes, planning to rob a bank is a crime, no matter how clueless the perpetrator may be in his planning or execution.

  4. Alex Knapp says:

    This thoughtcrime nonsense only feeds the notion that the government is all-powerful and omniscient. It isnâ??t. 9/11 proved it (unless of course you believe it was an inside job), and weâ??ve had many reminders since.

    It’s precisely because the government is not omniscient and all-powerful that I am concerned about this. The primary concern that I have is that we waste time and money going after people who actually don’t pose a threat, because the government needs to look like it was doing something. Government doesn’t need constraints becasue it’s all-powerful; it needs constraints in order to make it do its job correctly instead of taking the easy way out. I want the government going after real terrorists and not moronic braggarts.

  5. Anderson says:

    Though I have little hope for that, given the current political climate.

    Amen.

    The transformation of the Republican Party into worshippers of state authority is the most bizarre political spectacle I’ve seen.

  6. Allan says:

    Alex:

    Who are you to determine who is and who isn’t a threat?

    5 years ago, 19 Arab youths learning to fly and living it up in various areas around the country would have seemed the most natural (and American) thing in the world to me. Even if they were terrorists, what could someone do with a plane? Now we know.

    FWIW, I’m no Republican. And limited though government ought to be, it must take its prime responsibilities (national security, interstate commerce, foreign policy) very seriously.

    Just because the guys in Miami weren’t about to nuke anyone does not make them no threat to anyone in the future.

  7. Anderson says:

    Orin Kerr, btw, is quite critical of the Lithwick column. He also gets off a good line:

    Lithwickâ??s problem is that she seems to want to criticize the Bush Administration for something â?? one assumes this is written into her contract with Slate â?? but she actually doesnâ??t appear to have a problem with what the government did.

  8. vnjagvet says:

    The real question is who exercises the discretion and makes the judgments on these issues.

    My answer would be those who are charged with the responsibility for preventing further terrorist acts should have the authority to exercise their discretion on whom to investigate and charge.

    What is wrong with that?

  9. Allan says:

    Not a thing, V-man. There’s no pattern of evidence to indicate the Bush administration is prosecuting non-threatening people as terrorists.

    Unless you ask the Supreme Court, LOL.

  10. Joseph says:

    The primary concern that I have is that we waste time and money going after people who actually don�t pose a threat, because the government needs to look like it was doing something.

    This was precisely the case with the Soviet NKVD under Stalin, whose agents were encouraged by their higher ups to arrest people just because, in order that the apparatus would appear efficacious as a whole.