There is a growing debate going on about how to approach the apprehension and prosecution of terrorists and potential terrorists (here defined as those who have become part of a terrorist cell or commited themselves to terrorism but have not actively done any terrorist act). e.g. See Michelle Malkin’s Scott Peterson Type of Justice.
To the layman, it appears that our legal and policing systems are designed to deal with those who have done something, someone who has committed a crime. While there are laws on the books that deal with the conspiracy to commit a crime or even lying to investigators, these types of investigations and prosecutions are very difficult and are mostly limited to organized crime and “message” legal actions, such as against Martha Stewart. Still, in order to be prosecuted you usually had to do something, not just talk or write about doing something or the possibility of doing something. Our freedom of speech is so precious that we have generally approached these issues with great circumspection. It should be noted, however, that over the last few decades new statutes dealing with “hate crimes” and discrimination have moved the tipping point of prosecution closer to mere statements.
With that as a background, consider the problem of dealing with terrorists. We know how to apprehend and prosecute murderers and even serial killers and the random mass murderer or spree killers such as Charles Whitman in Austin, Texas or the Muhammad/Malvo sniper case in Washington D.C. area. We also know how to deal with organized crime and gang violence, which in some ways uses a similar methodology to terrorism, but is directed at a specific group of people in a limited context. Yet, even with the overwhelming evidence that these types of crimes often leave behind, the investigation and prosecution of these cases take considerable time and resources to adjudicate. Yet, we can usually resolve those types of crimes.
However, consider the problem of dealing with terrorists. Their targets aren’t single people. They are not spree killers off on a somewhat random rampage. They are not even a gang targeting another gang and killing bystanders in the process. No, their target is all of us, the whole country. Sometimes they plan for years. 9-11 was four to five years in the making. Up to the time they seize the plane or set off the bomb (as in the first Twin Towers incident) they haven’t done very much, if anything for which we could prosecute them effectively. Can you imagine trying to convict Mohammed Atta and his team if by some miracle they had been apprehended before they boarded the plane, say in the waiting area. Even consider the problem of apprehending them and the investigatory effort required, along with the problem of gaining enough proof to arrest them.
If you believe there are only a small number of terrorist cell groups (less than five) planning or preparing for additional 9-11 type of incidents, stop and consider the effort required to find out about, gather evidence on, and then apprehend only these individuals. Think about how the terrorists efforts cross jurisdictions and the problems that causes. Think about our burdens of proof, even to get investigatory tools such as wiretaps or intrusive surveillance. Now consider there are more than five.
How do we approach this problem and still maintain the rights and freedoms that make us who we are? Remember, the cell that releases the sarin gas or sets off the dirty bomb might not even know what they are going to do until days before they do it. Up to that time they may only be guilty of talk and limited talk at that. It is not an easy problem. It is a survival conundrum, this delicate balance between freedom and the will to survive.
