The Cure Is Worse Than The Disease: Using The Thought Police To Fight Al Queda

Apparently, two Arab-Americans have been indicted for swearing loyalty to Al Queda. The actual charge, it appears, is conspiracy to aid Al Queda. Admittedly, it has been 30 years, but my recollection from law school is that there are two elements to a conspiracy charge: (1) an agreement by two or more people to commit an illegal act and (2) an overt act in furtherance of that agreement. In this case, assuming that the NYT reporting is accurate, a government undercover agent, pretending to be an Al Queda recruiter, spent two years trying to persuade two men to agree to provide support for Al Queda. To make the conspiracy rap stick, the feds had to bring the two men together. They did so for the first and only time about 10 days ago in New York. At that time, the feds allege, both swore allegiance to Al Queda. The feds apparently believe this oath was a criminal act.

I have more than a few problems with this. First, the purely legal ones:

1. It's hard to see what agreement the two men made with each other. By taking the oath, they each arguably promised to help Al Queda, but those promises were not between the two men but were made separately to a third party.

2. Even if the taking of the oath in each others' presence is enough to establish an agreement between them to aid Al Queda (and to thereby commit an illegal act), it is hard to see how the oaths constituted an overt act in furtherance of that agreement. Indeed, according to the Times at least, the feds themselves concede that neither man had any immediate plans to do anything. At most, their actions consist of generalized statements of sympathy for and support of Al Queda.

3. Finally, this whole case appears to bear all of the hallmarks of a classic "entrapment": the government appears to have worked very hard to persuade the defendants to commit an act (i.e. conspire with each other) that from all appearances they would never have committed if the government had just let them alone.

But none of those are the points that really bother me. Presumably, the criminal justice system with sort this out eventually, and this case, like so many other of the government's anti-terrorism prosecutions will fall apart. Sure, the lives of two men will have been ruined in the process, but even that is not the real problem.

What really concerns me is the fact that the government appears to have fully embraced the idea that even thoughts and private speech can be criminal. Indeed, they are so far around the bend on this issue that they are actually proud of what they are doing in this case.

As the Times reports, this indictment is the first in what could be a string of indictments resulting from a two-year effort by the feds "aimed at identifying and arresting people disposed to provide aid to terrorists." I have no problem with government efforts to identify such people, provided that those efforts do not unlawfully intrude into protected privacy rights. Further, if there were reason to believe that the a person identified in this effort was actually likely to act on his "disposition", I could even countenance heightened surveillance of that person. But since when is it a crime to be "disposed" to do something?

If I may be so immodest as to quote myself:

What happened on 9/11 was horrible. But the uses to which the Bush Administration is putting those events are far worse. The Administration's rhetoric would have us believe that 9/11 was an attack on freedom and liberty. It was not. It was an attack on symbolic buildings and people. The attack on liberty and freedom (and all of the other values we associate with America like fairness, due process, a presumption of innocence, rights of privacy and freedom from unreasonable searches) came later and was perpetrated by the Administration (with a big assist from Congress).

September 11th has become the Bush Administration's Reichstag fire: a pretext for a relentless expansion of the perceived right and actual ability of the federal government to control peoples' lives. Three years ago, it would have been unthinkable for the federal government to claim the right to imprison thousands of people indefinitely, without charges or trial, without access to counsel, and in many cases without even having to reveal who is being held. Now, it not only claims those rights, it is actually doing all of those things. Three years ago, it would have been unthinkable for the federal government to claim the power to monitor and record and investigate the thoughts, ideas, expressions, affiliations and movements of American citizens without warrant or notice and without any basis beyond some vague "national security" claim. Now it is the accepted practice. In the name of defending freedom, the Bush administration is in the process of destroying it.

We now need to add another "unthinkable" to this litany: Prior to 9/11, it would have been unthinkable for the government to claim that having a certain "disposition" was a criminal act. Now it has so far embraced that concept that it trumpets its efforts to bring such "thought criminals" to justice.