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.
