How Far Does This Go?

by hilzoy

Jack Balkin thinks, as I do, that the person who killed George Tiller is a terrorist. And he has some excellent questions about what that implies. Here are some of them:

"(1) Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers? If we believe that Roeder and other domestic terrorists will plan further attacks on abortion providers and abortion clinics if we let them free, can we subject them to indefinite detention?

(2) The Obama Administration is currently considering a national security court to make decisions about the detention of suspected terrorists, with the power to order continued preventive detention. Should this court be able to hear cases involving U.S. citizens, whether they are Muslim or Christian? (...)

(4) One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

(5) Terrorists and terrorist organizations need money and resources to operate effectively. Often the only way to stop them is to dry up their sources of financial and logistical support. Can the U.S. government freeze the assets of pro-life organizations and make it illegal to contribute money to a pro-life charity that it believes might funnel money or provide material support to persons like Roeder or to organizations that practice violence against abortion providers? Can the government arrest, detain, and seize the property of anti-abortion activists who helped Roeder in any way in the months leading up to his crime, for example by giving him rides or allowing him to stay in their homes?"

Obviously, this is the problem with all these novel legal ideas: they are infinitely extensible. After all, why concentrate on terrorists? It's not as though murder, rape, and the like are not horrific for their victims. Rapists have pretty high recidivism rates; should we be able to detain them indefinitely lest they rape again? People who are caught engaging in various kinds of financial fraud would seem to offer excellent targets for waterboarding: they are likely to have intelligence about other criminals, and might not be able to hold out for very long. And who could possibly object to waterboarding, say, the senior leadership of Enron? Next time a pedophilia scandal pops up in the Catholic Church, we could put various Cardinals and Bishops in tiny little boxes with their own individual spiders, or pour holy water down their noses. (Seizing their assets would be a special bonus: goodbye deficits!) 

Don't even get me started on what we might do to the next televangelist caught violating sodomy laws. Don't you want to find out what all the other televangelists do when no one is looking? Can you think of a better way? And wouldn't it be fun to see whether their hair stays perfectly coiffed when they're hanging upside down?

Obviously, though, these tactics were never meant to be used against people like us. It's only other people -- scary, presumptively guilty other people -- whom we get to detain without trial, based on evidence that would not win a conviction in a normal court of law. Not people like us.

Personally, I think this would be a bad idea. But a lot of people seem to disagree. They seem to think it's fine to toss aside centuries of legal tradition, not to mention our civil liberties. What's really strange is that they claim that they are doing this because they love freedom.

Comments

[now_what]

Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers?

They are holding him without a trial now. Would you support releasing him on bail until he is given one?

If not, why not?

Also, I recommend you read a book on combinatorics.

[Sebastian]

"And wouldn't it be fun to see whether their hair stays perfectly coiffed when they're hanging upside down?"

You should beware. People are going to use this like Megan's 2x4 line even though it is obviously hyperbole.

[Warren Terra]

now_what, are you getting enough sleep? What would possibly make you think that Roeder is being held without trial? He was arrested as a suspect with pretty good probable cause, held for less than two days, and has been arraigned. Given his past history, the serious nature of the crime with which he has been charged, and the anti-abortion movement's history of aiding fugitive domestic terrorists, I would very much doubt that bail will be offered, but I have no doubt that the question of bail will be handled by the normal process.

And I don't even know what your crack about combinatorics is supposed to relate to here.

Heck, given the recent, organized, well-planned vandalism of Tiller's clinic by several persons, it seems quite possible that Roeder was in contact with a secretive group of Americans who sympathized with and even aided his terrorist action. I'm not comfortable with Roeder's being mistreated in any way, including to extract information, but there are people who have previously expressed support for torturing detainees in comparable situations, and I don't know how they will explain their failure to call for Roeder to be tortured.

[now_what]

And I don't even know what your crack about combinatorics is supposed to relate to here.

Hint: Aspects of combinatorics include "counting".

[Awesom0]

..."and I don't know how they will explain their failure to call for Roeder to be tortured."

Simple, he's white and Christian. It's not terrorism when they do it.

Slightly OT: Although it will never, ever happen, I'd love to see Obama tell the American people that, as President, he is required to protect the American people and exercise the powers granted to the president in pursuit of this goal, therefore requiring him to hold Roeder without charges, torture him and systematically undertake a covert search and destroy mission against his sympathizers.

Me reckons all those executive powers request be the previous administration would disappear from the law books overnight.

[Warren Terra]

Yup, now_what, it's really likely I (1) had no idea what combinatorics was and (2) didn't check to make sure there wasn't a relevant definition of which I was unaware. But now that you've explained it, your recommendation makes so much more sense.

[now_what]

Well you didn't get to (4).

[Shane]

Warren - Hilzoy's post goes (1), (2), (4).

Which is very Monty Python, and probably what now_what was hinting at.

[Warren Terra]

now_what, are you familiar with the first rule of holes?

Because I've gone back and re-read Hilzoy's "(4)" and the relevance of your suggestion continues to elude me. So either I'm even more dense than usual, or you might want to reconsider the self-evidence of your point.

[hilzoy]

From the post:

" he has some excellent questions about what that implies. Here are some of them"

Note the word "some".

[Warren Terra]

Wait - now_what's "point" was that hilzoy misnumbered her bullet points? For that it suggested she should read a book on combinatorics and considered its Delphic pronouncements on the subject?
I didn't bother to read the numbers of the bullet points, so I indeed did not notice the gap, but I'm willing to bet that the gap didn't occur because Hilzoy has a problem counting to five, and I doubt that if she mysteriously did have such a problem a book on combinatorics would be an appropriate way to address it.

As I finish this comment I see that Hilzoy has now responded to this "issue", making it clear that if that was indeed now_what's point then it was even weaker than I took it to be. Clearly now_what was recommending the wrong book, unless their combinatorics books teach you about ellipses - or about obnoxious (and elliptical!) blog comments.

[now_what]

I didn't bother to read the numbers of the bullet points

I didn't notice the ellipses.

[bob mcmanus]

My assumption is that the government may not do any of these things. ...JB

1) Balkin is largely being ironic and disingenous, and using Dr Tiller's murder to score rhetorical points against the tactics of the GWOT. Balkin should be ashamed.

2) Is it Balkin that now works for the DoJ, or Lederman? I forget. It would be important.

3) To me, it serves as a pre-emption, with the consequence of protecting the extremist anti-choice movement from any action that might seem disproportionate to moderates or process liberals. My sympathies are directed elsewhere this week.

4) The goals are a) to protect doctors and other health care workers and their patients from violence, harrassment, and intimidation, and b) to ensure that the Constitutionally Protected Right to an abortion is available to those women who need it, with no unneccessary obstacles.

Get it done. Whatever it takes. Now.

[bob mcmanus]

And pro-life organizations, like Muslim charities, have rights of freedom of association that governments should protect lest we effectively criminalize political association and belief in the name of national security.

This week we should be worried about the rights and feelings of pro-life organizations? Three days after Dr Tiller's murder in a church? And there is little or nothing in the post about doctors or patients? And I can find no other recent post at Balkinization about Tiller?

Balkin can go to hell.

[Nell]

Bob always likes him a good war.

[Johnny Canuck]

"What's really strange is that they claim that they are doing this because they love freedom."

It is parallel to the Viet Nam era logic:"We had to destroy the village in order to save it."

[mckinneytexas]

"Rapists have pretty high recidivism rates; should we be able to detain them indefinitely lest they rape again?"

Sure, assuming a fair trial and actual proof beyond a reasonable doubt, why not? Pedophiles, too, after a fair trial and proof beyond a reasonable doubt.

On the larger point, what applies to foreign terrorists does not apply to American citizens as viscerally satisfying as it might be to make exceptions for the occasional, obviously and heinously guilty American. Which is why I've never understood how the Richard Reed matter got outside the US system.

Due process does not extend to a war zone, and it was never the Constitution's intent that it do so. The Geneva Convention does and that is the standard. Hilzoy is mixing apples and oranges.

[Brett Bellmore]

"This week we should be worried about the rights and feelings of pro-life organizations? Three days after Dr Tiller's murder in a church?"

Yup, that's when you're concerned about somebody's rights, if you really care about rights: When the excuse to violate them is closest to hand, and tempers run high.

As for their feelings, hurt them all you want.

[liberal japonicus]

Nell, I think you should have written "Bob likes him a good civil war", though opinions may differ as to whether it should be a "good cívil war" or a "good civil wár"

But that weak joke aside, I think Bob has a point. It sure seems that Balkin is picking this up as a convenient club. Though in some possible world, it would be a form of civil disobedience to start prosecuting groups like Operation Rescue and others, if only to highlight the problematic construction of the various terror laws.

[Joe]

To number things my own way ...

[1] Marty Lederman now works for the Obama Administration.

[2] Nice that Hilzoy talks about this, since JB cut off comments because he was tired of a few pests that he could have handled if he cared to do so.

[3] Turley was on Maddow a few days back and actually was hesitant to call him a terrorist. He called him a murderer. A good debate might be to define the terms. Upfront, American citizens would often be treated differently, though Padilla etc. shows only so much.

For instance, I might query, was he a lone actor? Was he working in concert with a group? Was the group targeted by Congress specifically via a war-like authorization like AUMF? And, the place of seizure matters too. This is why the al-Marri case was so important. Every "terrorist" is not treated the same.

The term can clearly be stretched to mean loads of things. Thus, radicals in the animal rights movement can use vandalism and intimidation against research facilities. And, some of the anti-terror laws (as shown in the wiretap arena) can be dangerous overboard.

[4] Given our asset forfeiture laws, see the drug war, this is a legitimate concern. Civil cases have been brought against groups allegedly aiding and abetting illegal acts. Donating to groups that directly advance illegal acts could probably be targeted. You would then get into line drawing.

[Phil]

Yup, that's when you're concerned about somebody's rights, if you really care about rights: When the excuse to violate them is closest to hand, and tempers run high.

Gee, if only someone had felt this way when Dr. Tiller and his employees had been being harrassed by angry, psychotic abortion opponents for the last twenty goddamned years. Not like there weren't ample opportunities. I'll bet you a dollar that you didn't feel that way, though.

[Joe]

"Due process does not extend to a war zone"

When the war zone is the world and/or the person involved are held in custody outside of the fighting arena, it is so extended.

Of course, Padilla, Hamdi, and some others caught in the 'war' in question are/were U.S. citizens or long term residents who also have more rights than any given foreigner. And, they too (as "persons") have rights when in U.S. custody too.

And, "terrorist" is a judgment that someone broke the rules of lawful combat. Not something to assume w/o proper process.

[russell]

"People are going to use this like Megan's 2x4 line even though it is obviously hyperbole."

What it obviously is is not hyperbole, but satire.

Which McArdle's comment gave no evidence of being.

[bbb]

just wanted to say w/ respect to rapists/sex offenders, we do hold them indefinitely. in involuntary civil commitment after they've completed their sentence. each state has it's own act. for an example, see Fla's Jimmy Ryce Act.

[Nell]

Indefinite, post-prison civil commitments of the kind cited by bbb are wrong. Most are fairly new, all are regrettable, and all should be rolled back. This country is getting so unfree that "they hate us for our freedoms" is an even sicker joke than it was in 2001.

that's when you're concerned about somebody's rights, if you really care about rights: When the excuse to violate them is closest to hand, and tempers run high.

Brett's point is absolutely correct, though he's probably not been a very consistent practitioner of it when the rights are not those of white conservatives.

[Gary Farber]

"Nell, I think you should have written 'Bob likes him a good civil war', though opinions may differ as to whether it should be a 'good cívil war' or a 'good civil wár'"

Bob's response to just about every issue is that there needs to be some immediate violence and killing and war.

Bob got mad at me the last time I made a similar observation, quite some time back, which I regretted, because I'm actually quite fond of Bob. But his responses really are pretty much always the same.

"just wanted to say w/ respect to rapists/sex offenders, we do hold them indefinitely. in involuntary civil commitment after they've completed their sentence."

Which is an horrific offense against freedom and justice.

[bob mcmanus]

"Bob's response to just about every issue is that there needs to be some immediate violence and killing and war."

Gary is being a little silly. Obviously calls to immediate and explicit violence against specific targets I would in big trouble by now. So why do I have this terrible reputation?

1)Sometimes it's accurate. But "Violence Violence War War" has very little...intellectual content.
2)I am consistently negative and pessmistic.
3)As an example of what I do, see the Bob contra Balkin above at 8:56. Whatever points I had made, Nell's immediate reaction at 9:08 was about "war". War? Is that in the comment? Why did she see it there?
Well...to quote myself.

Get it done. Whatever it takes. Now.

Note the gutterals, the sharp harsh hard Anglo-Germanic consonants in sentence fragments. Like grunts. Or growls. Or barks.

Ideally, one should be able to describe an orchid in language that expresses rage implicitly, and/or elicits rage. And that's another of my points, that discourse is about emotions rather than arguments or language or logic, and the emotions are what people remember.

Now y'all can call me out for using a Germanic instead of Latinate vocabulary, but I don't think that breaks the fracking posting rules.

[bob mcmanus]

It is also my theory that if you are in a state of confidant outrage or indignation, the style will reveal that, no matter how hard you try to hide it.

And if you are in a position of obsequious submission to the bourgeois neo-liberal hegemony, all your so-called anger will sound like the squeaks and squeals of a ferret in a capture cage.

[Gary Farber]

"1)Sometimes it's accurate. But "Violence Violence War War" has very little...intellectual content."

I didn't mean to imply that that's all you have to say, Bob. I value your contributions, even if I sometimes, or often, disagree with them.

"...but I don't think that breaks the fracking posting rules."

I never meant to imply otherwise in the least.

"2)I am consistently negative and pessmistic."

That's all I meant, with the addition that your negativity tends to include a statement of the need for, one way or another, violence, or a declaration that we're more or less at war with the powerful in this country, and liberals are wusses for not recognizing that. If this is a mischaracterization of your views, I apologize and welcome correction. I also certainly don't in the least mean to imply that I find your opinions unwelcome or of little or no value.

[[email protected]]

Was bob mcmanus at Tacitus, back when the culture of life embraced mass death to spread democracy and secure WMDs?

[bob mcmanus]

Would "...squeals and squeaks of a frightened ferret in a capture cage" been better, or is that too much alliteration?

It's ok, Gary.

"The Kingdom of Heaven suffereth violence..."

[mds]

What's wrong with being consistently negative and pessimistic? The subsequent post to this one was certainly more kindling for my Bonfire of Despair.

[Gary Farber]

Why not go more intense, and have it "squeals, squeaks, and squawks of a perilously petrified and panicked, fazed, fainthearted and frightened, ferret in a culturally conditioned capture cage"?

In for a penny, in for a pound. I'm sure William Safire would approve.

[bob mcmanus]

Was bob mcmanus at Tacitus, back when the culture of life embraced mass death to spread democracy and secure WMDs?

I am not sure what this means, but I was commenting at Tacitus not long (six months?) after this blog began.

Like a lot of other people, I said things and took positions from 9/11 thru abu Ghraib, in a specific context and community, that I would now find embarrassing or hard to explain. Like Moe, the years have radicalized me.

We are way off topic.