Sunday, September 27, 2009

Preventive Detention: A Way to Win a Game of Chicken?

In today's New York Times, John Farmer Jr. uses the arrest of Najibullah Zazi as a hook to advocate for a preventive detention statute. The story-line he creates is one of law enforcement investigating terrorism and facing what he describes as a dangerous "game of chicken." They know that they are following and listening to terrorists who want to kill thousands of people, but they don't have the evidence normally sufficient to hold them and/or prosecute them. As that evidence develops, they may have a difficult choice to arrest some but not all, leaving those others to go on and actually kill hundreds of people. Maybe with such dire consequences, he argues, we should consider giving law enforcement the power to imprison people without sufficient probable cause.

He uses some compelling examples of people who got away and actually committed acts of terror. Without examining the extent that those examples are true or simply based on the word of law enforcement, who regularly depend on fear to increase their powers and justify their actions, it is important to note that it isn't actually that difficult to arrest and convict people for conspiracy to commit terrorist acts.

Just look at the men accused of plotting to blow up the Sears tower. That case did have to go through 2 mistrials before the government found a jury that would convict 5 of the 7 men, but they still basically got these guys for doing little more than stating their allegiance to Al Qaeda and otherwise not taking any real, tangible steps toward harming anyone.

Then there is the man convicted of providing material aid to a terrorist organization because he allowed a Hezbollah television station to be broadcast on a small satellite service he operated out of New York. Or attorney Lynne Stewart convicted of providing material support to terrorists for passing statements from her client to the media.

If it is already fairly easy to convict people for doing little more than making statements or passing along statements publicly, then what exactly would be sufficient to allow law enforcement to preventively detain someone? They go to the same mosque with someone for whom there is probable cause? They had coffee with that person the day before? Simply knowing that an attorney is willing to represent someone convicted of one of these acts?

Would the risks of giving law enforcement this kind of power seem more dangerous to some if most terrorism suspects were Christian? It does make the risks of giving the state more police power easier to accept when we think of it only affecting other people - especially when those people are foreigners or look different from us or have a different faith.

One of the biggest flaws in Farmer's column is that he never identifies the risks, just that preventive detention is "unpopular;" but it is unpopular for good reason. Law enforcement, the FBI, the Justice Department and similar state entities have a history of using their power for bad ends; whether you consider COINTELPRO or simple (but sometimes deadly) police abuse on city streets. Farmer's formula of easing up on restrictions against the state because of the potential harm that may come from respecting the Bill of Rights and civil liberties is the same formula that led to the forced detention of 110,000 Japanese and Japanese Americans during World War II. I believe it is the same formula that allows states to convict innocent people and send them to death row. Better to lock up millions of innocent people than let one guilty person go free; or worse, let one soon to be guilty person commit the crime they probably intend to commit.