OrinKerr.com

More Lameness from Lithwick

A month ago, I began a post by saying: “Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skils when she writes about conservatives.” Her latest article on alleged “thought crimes” is a good example of the difficulty.

Lithwick’s column is about the arrest and indictment of the members of two alleged terrorist cells, who apparently were in the early planning period of terrorist attacks but hadn’t gotten very far. Lithwick doesn’t appear to have a problem with what the government actually did; as best I can tell, she seems to find the government’s actions pretty sensible. I agree with her on that front: If you read the indictment filed in the recent Miami case, for example, the legal requirements for conspiracy seem amply met. So at least based on the indictment, the case seems to be pretty sensible and consistent with traditional principles of criminal prosecutions.

Despite this, Lithwick’s column is very critical of the Administration.  The problem, according to Lithwick, is that the arrests signal a new campaign to punish thought crimes:

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.

Am I missing something? Lithwick’s premise is that DOJ has embraced a “new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what’s on his mind.” But as best I can tell, DOJ has done no such thing in this case: it filed a criminal indictment in federal court that at least facially amply supports the traditional requirements of conspiracy law — an agreement plus an overt act. There’s no “deterrence by CAT scan,” or arresting someone “solely for what’s on his mind.” Rather, it seems to be pretty traditional criminal law.

Of course, maybe the evidence won’t hold up; maybe there is less to the case than meets the eye. And one might object to the counts in the indictment that are based on the “material support” statute, on the ground that these counts are less grounded than traditional criminal charges. So certainly there are possible criticisms to make, some of which might end up having merit. But Lithwick’s point doesn’t appear to be one of them.

Perhaps Lithwick is criticizing the new strategy, rather than its application in this particular case? Well, let’s take a look at the context of Gonzales’s statement that purportedly announced this new strategy. (Recall that this is the statement that Lithwick calls “one of the strangest legal statements of all time.”) If you look back to the transcript of the press conference, it turns out that Lithwick misrepresents what Gonzales said.

Here’s the complete Q & A:

QUESTION: From reading the indictment, it appears that about a month ago their plans sort of fell apart, which raises a couple of questions. One, it appears they have a real criminal intent, but did they have the capability; that is, were they just naive and incompetent? In other words, were you ever afraid that they could really pull off this plot?

ATTORNEY GENERAL GONZALES: 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. We look at the facts in every particular case. And we felt that the combination of the planning and the overt acts taken were sufficient to support this prosecution. And that’s why we took this action.

There is no immediate threat. We’ve already publicly announced there’s no immediate threat to facilities in Miami, no immediate threat to the Sears Tower. Obviously, part of the reason for that is because they didn’t have the materials they requested. They did receive the weapons, at least we don’t know of. But nonetheless, they did take sufficient steps that we believe does support this prosecution. That’s why we took the action that we did.

(emphasis added)

If I am reading the transcript correctly, it seems that Gonzales was saying something pretty different from what Lithwick claims. He wasn’t saying that it is dangerous to assess risk, such that no such assessment should be made. Rather, the very next sentence makes clear that Gonzales was saying that the inquiry is difficult, but that DOJ had made an individualzed assessment and found that this group was dangerous enough to take action. Of course, if Lithwick had quoted Gonzales’s full response, she wouldn’t have had much to criticize.

UPDATE: I have fiddled with this since the initial posting to lower the snark level a bit.