Pre-crime

From the latest issue of Mother Jones magazine:

When Attorney General Alberto Gonzales held a press conference in the summer of 2006 announcing the arrests of seven young men for plotting to bomb Chicago's Sears Tower, he sounded defensive, his voice lingering a beat on each thing the men allegedly did. "Individuals here in America made plans to hurt Americans," he claimed. "They did request materials; they did request equipment; they did request funding." Gonzales admitted that the American and Haitian-born men posed "no immediate threat." But, he warned, "homegrown terrorists may prove to be as dangerous as groups like Al Qaeda. Our philosophy here is that we try to identify plots in the earliest stages possible, because we don't know what we don't know about a terrorism plot."

... juror Delorise Thompkins told the Miami Herald. "You're going to find someone always afraid of terrorist groups, but then when you see the evidence, there's not a lot there—no plans, no papers, no pictures, no nothing connecting them to Osama bin Laden." The jury's ambivalence is understandable. The plots were little more than talk encouraged by informants; the central evidence in the case—the taped oath—was a staged fbi production. But then, whether the men were a threat or the plot real doesn't matter when it comes to the charge of material support.

... There's a reason material support has become such a popular charge, a reason it's central to many of the government's most questionable cases: The laws are a prosecutor's dream. They don't require evidence of a plot or even of a desire to help terrorists. They give the government a shot at convictions traditional criminal laws could never provide. "The administration adopted the preventive paradigm, i.e. 'We've got to stop people before they've done something wrong,'" says David Cole, a Georgetown University law professor who's the author of several books about the effect of anti-terror laws on the justice system. "There's tremendous pressure to expand grounds of criminal activity, to prosecute people who might represent a threat. The material-support provisions have been the principal vehicle for pushing that envelope."

The question is whether that approach has made us any safer. "The government does not understand how terrorist groups operate," says Michael German, a former counterterrorism agent at the fbi and now counsel for the aclu. "When I was undercover, there were plenty of people who may have been sympathetic to a group but were very clear they didn't want to break the law or get involved in violence. And we didn't go after them." Blurring that distinction by opening the door for prosecutions of people who do little more than express sympathies for a group, argues German, "that's where the material-support provisions go off the rails. The terrorist's goal is to convince everybody he identifies as his community that they are being oppressed. And when the government's response tends to create injustice, the government's fulfilling that prophecy."

... Think of the laws as "aiding and abetting"—only on steroids. It has always been illegal to support criminal activity. If a man drives a getaway car for bank robbers, then he can be charged for the robbery, too. Prosecutors have simply had to show that there was an intent to further the crime and some meaningful connection between the help and the crime itself.

What the material-support laws did was roll back those requirements. A taxi driver hired for a short drive by a Hezbollah politician—a driver who had no intention of engaging in terrorist activity—would, so long as he knew the politician was with Hezbollah, be guilty of providing material support. That's because the laws that define "material support" contain a long list of often nebulous activities, such as providing "property, tangible or intangible" or "service," and are applied whether or not those activities truly helped advance the cause of a terrorist group, and regardless of the suspect's intentions. The laws make little distinction between the taxi driver and, say, an arms merchant who sells detonators to Hezbollah. The Patriot Act extended the concept further, making it illegal to attempt or conspire to provide material support. Before, prosecutors had to prove you gave support. Now they just have to show you wanted to ...

"The Constitution is, among other things, a counterterrorism strategy," says Michael German, the former fbi agent. "What the framers recognized is that you don't create the perception of repression if you allow people legitimate means for fostering change. The material-support laws criminalize conduct that in and of itself isn't typically criminal, isn't illegal." When you have cases based on such sweeping laws, argues German, "you're ostensibly hurting terrorist organizations, when in fact you're helping them. You're giving people more of a reason to become militant."

Fittingly, but coincidentally, I had re-watched Minority Report this week, a movie that takes the concept of predicting and preventing crime to another level. The whole concept of punishing people for what they think is just a bit too 1984ish, with the government in the role of the Thought Police.


Where is the line drawn? It's not difficult to see this being taken to a level where any seditious thoughts are punishable. And what is sedition? The founding fathers of our country were certainly seditious. As the above article states, "What the framers recognized is that you don't create the perception of repression if you allow people legitimate means for fostering change." These loosely drawn laws and the way we enforce them are criminalizing thoughts and gutting our own Constitution.

The system of government that used to be a beacon for the rest of the world is now using the tools of totalitarian regimes. It's not hard to see why we are not respected any more. It's hard to respect a country that tortures, that spies on its own people, and ignores it's own laws.

"We are not content with negative obedience, nor even with the most abject submission. When finally you surrender to us, it must be of your own free will. We do not destroy the heretic because he resists us; so long as he resists us we never destroy him. We convert him, we capture his inner mind, we reshape him. We burn all evil and all illusion out of him; we bring him over to our side, not in appearance, but genuinely, heart and soul. We make him one of ourselves before we kill him. It is intolerable to us that an erroneous thought should exist anywhere in the world, however secret and powerless it may be. Even in the instance of death we cannot permit any deviation . . . we make the brain perfect before we blow it out." -- 1984 by George Orwell