A Terror Threat in the Courts

By John Farmer, a former attorney general of New Jersey and senior counsel to the 9/11 commission. He teaches at Rutgers Law School (THE NEW YORK TIMES, 13/01/08):

José Padilla, the so-called dirty bomber, is expected to be sentenced by a federal judge in Miami this week, and judging from the reaction to his conviction last summer the case will be hailed by many as a triumph of the use of criminal law as the primary weapon against domestic terrorism. The White House will no doubt reiterate its view that the prosecution of Mr. Padilla, a United States citizen, upholds “a core American principle of impartial justice for all.” But the White House has been far from alone in praising the verdict.

Perhaps because the argument over Mr. Padilla and other detainees had centered for so long on the Bush administration’s apparent reluctance to afford them any rights at all, even Mr. Padilla’s defenders in the criminal defense bar praised the prosecution. Donna Newman, Mr. Padilla’s first lawyer, said that the trial “shows you can bring forth the evidence and try someone in court.” Jenny Martinez, who represented him before the Supreme Court, wrote that the “trial showed that our federal courts are perfectly capable of dealing with terrorism cases.”

But are they? A closer look at the Padilla case and other terrorism prosecutions reveals, to the contrary, that the continued reliance on our criminal justice system as the main domestic weapon in the struggle against terrorism fails on two counts: it threatens not only to leave our nation unprotected but also to corrupt the foundations of the criminal law itself.

The use of the criminal law in terrorist cases has never been an easy fit. After all, the primary purpose of counterterrorism is the prevention of future acts, while the criminal law has developed primarily to punish conduct that has already occurred. The question raised by the Padilla trial is whether a case about an attack that never actually happened can be tried in the criminal courts without transforming the nature of that system itself.

The answer is no. In order to make the criminal justice system an effective weapon, we have already started extending the reach of criminal statutes to conduct that has never before been punishable as a crime.

Look, for instance, at the two charges of which Mr. Padilla has been convicted: conspiracy and the provision of material support to a terrorist organization. Before 9/11, the “material support” statute was greeted rather rudely by the courts. Federal judges were divided even as to its constitutionality, with some believing that the statute penalized the freedom to associate, and others believing that the statute’s failure to require that a defendant know that the organization had been designated a terrorist organization was a fatal due process flaw.

After 9/11, the courts have not been so troubled. Originally limited to providing “material support” in the form of money or weapons to groups the federal government has deemed terrorist organizations, the statute’s scope has now been broadened, in the cases of Mr. Padilla and of John Walker Lindh, the so-called American Taliban, so that a defendant is within its ambit by providing only himself as “material support.”

The conspiracy charge of which Mr. Padilla was convicted is also a novel application of the law. The prosecution used the charge for a new purpose: preventive detention. As Prof. Peter S. Margulies of the Roger Williams University law school perceptively told The Times after Mr. Padilla’s conviction, the way the statute is being interpreted “basically allows someone to be found guilty for something that is one step away from a thought crime.”

Both charges — providing material support and conspiracy — are extremely vague, because ideas behind both strain to reach conduct that may be, in other contexts, entirely innocent.

The urgency involved in terrorism cases has also led courts to accept conduct by the government that might well have been disapproved in other contexts. In United States v. Lakhani, the defendant, Hemant Lakhani, bragged to an F.B.I. informant of his ability to procure everything from shoulder-held missiles to submarines. There was only one problem: it became clear over a 22-month period that Mr. Lakhani couldn’t deliver. He was unable to find anyone to sell him the weapons.

So, in exasperation, the government stepped in. A government agent arranged to be the supplier for Mr. Lakhani. The government thus not only induced the defendant to commit the crime, but enabled him to commit it. No matter. Mr. Lakhani was convicted, and sentenced to 47 years in prison by a federal district court in New Jersey.

The broader trouble here is that the federal court decision rejecting Mr. Lakhani’s appeal is considered “precedential” — that is, the court sees it serving as a model. When terrorism cases are treated as ordinary criminal prosecutions, the principles of law that they come to embody will guide law-enforcement conduct and be cited by the government not just in terrorism cases but in other criminal contexts.

Over time, we may well transform the law of conspiracy to the point where an agreement alone is a crime. This would render thoughts punishable, reward government overreaching and erode our civil liberties. All because the criminal law is being used not primarily to punish crimes but for purposes of detaining people we are worried about.

I don’t question that people like Jose Padilla and Hemant Lakhani can pose an unacceptable risk to public safety. But their prosecutions should transform the debate over how to deal with domestic terrorism. They cry out for the creation of a form of preventive detention adapted to terrorism, and outside the criminal justice system.

Likewise, the government’s detention of Mr. Padilla for years without filing charges or providing access to counsel was unprincipled. But considering norms of criminal law and the paucity of evidence the government had at the time, its only alternative was to leave him free. Law enforcement should have had another choice.

Imagine what might have happened had the government not detained Mr. Padilla back in 2002 — if he had carried out a large-scale bombing, killing thousands, and if it had emerged later that the government had had information implicating him and done nothing. Would that have been a risk worth taking? Scotland Yard took that risk when it put surveillance on, but failed to detain, the future London subway bombers.

It is time to stop pretending that the criminal justice system is a viable primary option for preventing terrorism. The Bush administration should propose and Congress should pass legislation allowing for preventive detention in future terrorism cases like that of Mr. Padilla. It is the best way to ensure both the integrity of our criminal law and the safety of our nation.