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.
I read Gonzales’s statement as saying that if the facts support a conspiracy prosecution, the administration will pursue that prosecution. He didn’t say that the facts were such that this group is dangerous enough to prosecute, just that the facts were sufficient to “support” the prosecution. Particularly when he refers to “planning and overt acts,” it sounds like he is ticking off the elements of a conspiracy case. If he checks of all the boxes, then the administration will prosecute.
Of course, that doesn’t mean that he was announcing a new policy either. The question was whether these guys could really do anything and the answer was essentially “that’s not really what we think about when pursing a prosecution,” which seems fair enough to avoid a headline saying “Attorney General Captures ‘Incompetent’ Terrorists.”
I read this more or less like Ted does: once all of the elements of conspiracy have been met and the DOJ has sufficient evidence to bring (and likely to win – the DOJ doesn’t like to lose) the case, it is going to move forward with prosecution without making subjective determinations about a group’s level of “dangerousness.”
That makes sense on a couple of different levels. 1) Would be terrorists’ incompetence shouldn’t inure to their favor 2) The potential consequences of waiting are too grave should you hold off on prosecuting a group because they aren’t “dangerous” enough – and you find out you were wrong.
As to Lithwick, she’s simply incapable of discussing anything related to this administration’s legal policies without taking cheap shots – even at the expense of logic or rational criticism – even when she largely agrees with them.
That’s her shtick: I snark therefore I am.
I agree that Lithwick has some dreadful articles in her, particularly when it comes to the Bush admministration. However, she is responsible for one of my favorite MSM jurisprudence articles, “Please Don’t Feed the Federalists.”
http://www.slate.com/id/2134287/
Lithwick can be terrific (her coverage of the Roberts confirmation hearings was especially good, as was her long ago column on the Microsoft appeal at the DC Circuit), but her hatred of the Bush administration seems to have taken away her usual sharp and contrarian common sense (as hatred of Clinton too away many conservative people’s common sense, see, eg, William Safire).
Personally, I thought it was very disappointing that at the end of the most recent SCT term, she yet again did the Slate SCT dialogue with Walter Dellinger — and no conservative participant. There are many smart people out there who thought the government had a good argument in Hamdan (Andy McCarthy is one, but he’s not alone) that Slate could have added to their roster. Instead, when discussing what almost everyone agrees was the most important case of the term, there was no disagreement among the participants in the dialogue. The case was 5-3 (and surely would have been 5-4 had Roberts participated) for a reason, and all of Slate’s readers would have benefited from a more diverse discussion of that case and the entire term. So, for my money, the problems that Prof Kerr cites in this post (which is right on) are really symptoms of Lithwick’s greater disease of being blinded by her hatred of the current administration. It’s too bad, because she’s a very talented writer when she is on her game
I figure what’s exercising Lithwick is the administration’s advertising these arrests as significant advances in the War on Terror. But then why couldn’t she have written about that instead? Lame.
I agree; she’s being unfair. This sounded like genuine prosecutorial discretion. I think the AGs point though is that the law already provides some structure to analyzing which cases to follow.
This is the way political hackery works though. There is a story from the left about cowboy bush, and there is a rather directed effort to write history in accord with that story.
But this isn’t anything special; it’s the same reason some of my friends call ‘National Review’ a republican rag–in particular refering to the flecklessness of a certain economic commentator who all spins even incidential actions of the adminstration as ‘for the best’.
If a conspiracy is an agreement among two or more people to commit an illegal act, I don’t get what the problem here is.
The material support statute *is* much more problematic, possibly treading into First Amendment freedom of speech and freedom of association problems, but the straight-up conspiracy seems right in line.
I always understood the conspiracy to exist at the time of the agreement, irrespective of whether they conspirators actually complete the crime, or even get to an attempt, because mere preparation, though insufficient for an attempt, is a sufficient overt act in those jurisdictions that require an overt act. Isn’t she a lawyer?
Nonetheless, Lithwick’s point is right on. You might recall that after Columbine, schools, parents and police became increasingly interested in various forms of expression by students. If these even remotely suggested violence–e.g., a required fictional essay–the students were arrested, expelled and detained for a variety of alleged crimes, most of which never resulting in charges. The current DOJ reaction to various “plots” is just the adult version of the same knee-jerk reaction.
[OK Comments: I'm not quite sure I understand. Lithwick approves of the decision to arrest these group. Buck, do you disagree?]
Another recent example of Lithwick hyperbole, from the July 2 Washington Post: “The new John G. Roberts Supreme Court is only one term old, and already we’re all wrong about it. Liberals had feared, and conservatives had feted, the end of judicial review as we know it.” I recall certain conservatives expressing disappointment that Luttig didn’t get the nod, and I recall many conservatives lauding Roberts’ nomination. I don’t recall any conservative who predicted that the newly constituted Roberts Court would end judicial review as we know it.
Dahlia Lithwick made an evidently unjustified extrapolation of the situation-specific facts to an extreme, unsubstantiated hypothetical. Why? perhaps she has observed that i) many Bush Administration actions have been essentially thought control (restricted attendance at political events, ignoring or declining to solicit advice from experts, distortion of opposition statements, admin-wide coordinated lying, et many al) and ii) the Bush Administration pattern has consistently been to first meet, then exceed, every worst fear some of us have had.
which, even if it might explain why, certainly doesn’t justify the behavior. since the truth is more than sufficiently damning, it infuriates me when someone on my side who has a public forum isn’t meticulously honest since, as here and the other instance cited, that only damages their credibility and thereby detracts from our legitimate message.
[OK COmments: Edited by OK]
Hmm. Perhaps Alberto Gonzales has been misrepresented in Lithwick’s column—a point on which I’m not entirely sure we agree—but I think it’s equally likely you’ve misstated her point. The CAT-scan line, for instance, seems to me a rhetorical flourish only—admittedly a sloppy and careless one—since she dislaims at the very beginning the Minority Report interpretation.
Rather it seems to me she’s making an argument about the propriety of arresting conspirators on technical legal guilt alone, rather than using conspiracy charges with more discretion. The AG did speak rather dimly of the danger-measuring role—this is where I disagree that Gonzales was misrepresented—and he very well may have a point that it’s unwise for law enforcement to get too much into the measurement of how dangerous a conspiracy really is. But Lithwick quoted him accurately, as far as it goes, and your highlighted text is open to two potential interpretations, and only one of them really counters Lithwick’s point. AG might have been saying it’s dangerous to measure actual threat, but we looked at this one, and there’s an actual threat that supports prosection. Or he might have been saying we looked at this one, and there’s a technical legal violation that supports prosecution. Whether and which should be the appropriate standard for charging conspiracy isn’t my concern, but it seems to me there’s a colorable argument on both sides of the question.
So it seems her disagreement is the degree to which actual danger and likelihood of future harm should play a role in prosecutorial discretion. Gonzales, on at least a plausible reading of his words, appears to think it should be far less than Lithwick thinks. What’s wrong with her objecting to that—aside from the careless conclusion, of course.
[OK Comments: Oh, that would have been perfectly justified if that had been the column that Lithwick wrote. But that is not the argument that Lithwick actually made. I responded to similar comments over at the VC comment thread, see, e.g., here.]
OK, I’m not sure you’ve made a persuasive case regarding the content and import of the Gonzales transcript. I agree that Lithwick’s use of the quote is taken out of context, and in that sense is misleading as to what was actually discussed. But, your excerpts only seem to show that Gonzales was stating that the Department of Justice will not evaluate the “dangerousness” of particular suspects and will instead prosecute any conspiracy case it thinks it can win.
As I read it, Gonzales was asked straight up whether he thought the Miami group was an actual threat to accomplish a terrorist act, and he responded with blatant misdirection and doublespeak. First, he says it would be outright “dangerous” for the DOJ to evaluate, on an incident by incident basis, what threats were more likely than others — implying that the DOJ will simply prosecute all incidents that constitute crimes, regardless of the circumstance. I doubt that this is actually true, but whatever, because the next sentence out of his mouth, “We look at the facts in every particular case,” is either a contradiction of the first, or a completely vacuous non-answer. What could these “facts” Gonzales is referring to possibly be?
[OK COmments: Presumably the "facts" are the "facts" alleged in the indictment, plus whatever else DOJ knew that they did not include in the indictment.]
To me the answer suggests that the DOJ is making case by case determinations of who it will and will not prosecute on the basis of “facts” that go beyond the “facts” constituting the elements of a crime, e.g. facts suggesting the relative dangerousness of the suspects. If Gonzales was actually referring to the facts that constitute the elements of a crime, then he said nothing at all — I think we all take it for granted that the DOJ “looks at the facts” before writing up indictments (or at least, we ought to be able to). I think we can and should expect a little more clarity from the AG on these matters.
[OK Comments: KPJ, can you name cases in which the Attorney General (in any administration) has offered "a little more clarity" about the facts of such cases at the indictment stage?]
In the end, Gonzales’s answer to whether or not he thought the Miami group represented a serious threat seems to be “we’ll prosecute anyone who commits the technical elements of a crime, regardless of any other circumstance.”
[OK Comments: KPJ, how do you know this? This is quite contrary to what Gonzales says, so I'm not sure why his answer "seems to be" that way to you.]
I take this to be Lithwick’s main beef — the DOJ is not an endless money pit and it probably doesn’t work well for the DOJ to wield the criminal law like a sledgehammer. This is an issue that goes well beyond the confines of the Miami case, and it seems to me that we ought to expect the DOJ to exercise circumspection when they throw big publicity parties regarding their claimed successes in investigating terrorist activities. The question Gonzales so deftly avoided — “were you ever afraid they could actually pull this off?” is an important one in many respects, one of which is the “thought crimes” issue raised by Lithwick. If the DOJ isn’t going to make determinations about dangerousness, who is, and who is going to ensure that idiot teenagers or the psychologically deluded don’t become the next dramatic successes in the “war” on terror.
[OK Comments: Clearly there is a difference between (a) prosecuting thought crimes -- that is, crimes without acts -- and b) prosecuting conspiracies that were unlikely to come to fruition -- that is, agreements with overt acts in which the series of acts is for some or another reason unlikely to lead to the plan coming to fruition. To the extent Lithwick has a problem with (b), I'm not sure why she described her problem as being (a).]
(Incidentally, I also don’t see anywhere in Lithwick’s article a concession that the Miami prosecution is a good idea, she merely acknowledges that the group isn’t made up of nice guys.)
I have to say, if Gonzalez got the rules for conspiracy wrong and Lithwick has them right, then (a) I’m going to fail the NY Bar exam and (b) Barbri’s been teaching it wrong all throughout this year. Agreement, intent to agree, overt act… that’s all that’s in the notes, anyway.
A minor question: I admit that I fell asleep during the dreadfully tedious Minority Report, but in the film were “people . . . arrested for crimes they hope to commit in the future?” (emphasis mine) My sense of the plot was that the Precogs could convict people irrespective of whether they’d ever had any intent to speak of. They were precognitives, not empaths, and told the future instead of reading people’s minds: no one was being arrested of “thought” crimes as such. I know that the legal error is more important than an inappropriate metaphor, but the reference stood out to me. Minority Report posited a world in which neither act nor intent was necessary for attempt, which is a truly radical concept.
Following up on Buck’s comment:
The AG’s complete quote seems to imply a mechanical evaluation of the cases in question. While I am not familiar enough with all of the evidence in the two cases in question to have an opinion- Ms. Lithwick’s basic point is valid.
Do we want a rote mechanical application of the checklist? Would it not be better for the Justice Deartment to evaluate each case for its potential to become dangerous before public arrests are made? While such evaluations are inherently unreliable, they will have to be made at some point, either by DOJ or by a jury. In addition, it seems clear from the news accounts that both groups were penetrated at a fairly high level. Would continued monitoring not have served to prevent any actual attacks?
I could continue, but these are the sorts of decisions that I suggest DOJ is supposed to make, not just checking things off a list. Their judgement will not be perfect, but it’s the best we’ve got.
As an aside, this is not something new. There was a case in the late 70′s (78 or 79, I believe)where a group was arrested (and I believe convicted) for conspiring to steal an naval vessel at the base that I was stationed. While I do not remember all of the details, that plot bordered on the absurd and would not have succeeded. That still didn’t save the plotters.
Lithwick missed the main reason to mock the administration about this–they had the AG himself do a news conference to announce the indictment of a bunch of hapless wannabes.
Yes, what they did appears to meet the definition of conspiracy, but they were trying to get machine guns to bring down the Sears Tower. Machine guns to bring down the Sears Tower? Brilliant! And even then, the article Lithwick links to suggests that many of the “acts” were done at the suggestion of the government.
The AG acted as if he had caught a shark, but he was only holding a guppy. If these guys did what the indictment claims, I’m glad they were caught, but the AG deserves to be mocked.
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