Minority Report

The United States inches ever closer to criminalizing bad thoughts.

The government claims to have foiled two major terror 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 for allegedly concocting a plan to blow up, among other places, the Sears Tower in Chicago. Then last week, severalmen were arrested in the Middle East for plotting suicide bombings of transit tunnels between New Jersey and Manhattan.

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 i ndictments 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.”

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.

So, who has the better argument? A government that claims to be fighting a new type of crime that warrants a pre-emptive legal response? Or civil libertarians who claim that we are a short hop from the science fiction world of 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 his new book about terror and civil liberties, Before the Next Attack. Ackerman suggests the criminal law paradigm “is fundamentally inadequate as a complete response” to the terrorist 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 that of the Mafia. But before we agree to mangle the criminal law to prevent largely theoretical future attacks, there are important questions that warrant asking:

1. Should it matter that the object of the conspiracy is remote, if not impossible? In both 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 group. The New York conspirators had barely made it out of their Internet chat rooms.  Should the fact that these “terror cells” are so often teeming with grandiose bumblers matter? Maybe not. The Twin Towers and London subways were not attacked by criminal masterminds bearing NASA-grade technology. As Homeland Security Secretary Michael Chertoff put it last week, “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.” According to Tom Brune in last week’s Newsday, a decentralized al-Qaida increasingly waits for grandiose kooks and “self-starters” to seek out their own networks and plan attacks on their own. That means today’s disaffected braggart is easily converted to tomorrow’s subway bomber. It’s immaterial to claim, as Salon’s Tim Grieve did last week, that “the guy they arrested in Lebanon is something less than the next Osama bin Laden.”  Capturing the next Satam al-Suqami (one of the 19 hijackers on 9/11) is more than good enough and if we need to nudge the criminal laws a bit to do so, most of us would agree that it’s worth it.2. Should it matter that the 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 ok. The real policy question is whether this plot consisted exclusively of chatter and whether it could have ever gone beyond that stage. We don’t yet know enough about the New York bombing plan to answer that. (Though Michael Mershon, the FBI’s assistant director for New York, has called the threat “the real deal.”) Still, even Americans willing to scrimp and save on the costs of civil liberties should be concerned that apparently the arrests in the Miami case were not the result of the  conspirators having crossed some threshold of seriousness or dangerousness, but because they began to have doubts about the FBI informant who was stringing them along. Should we decide as a nation to move these 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 Gonzalez on Friday 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? Because I thought that’s what government lawyers were supposed to do. The most dangerous aspect of these new terror 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 here: They think that since 9/11 happened due to government inaction, any and all government action should be welcome—including widespread arrests of genuine plotters along with hapless paint-ballers. 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.

A version of this piece appears in the Washington Post Outlook section.