Criminalizing statements of terrorist intent: how to understand the law governing terrorist threats, and why it should be used instead of long-term preventive detention.

• Author: Walen, Alec
• Position: Symposium: Preventive Detention

1. INTRODUCTION

   What ought we, as a liberal society, do with members of our society who have stated their intentions to commit terrorist attacks? Preventively detain them to ensure that they do not have the opportunity to act on those intentions? Monitor them with the goal of catching them, hopefully before they do any harm, in a criminal act for which they can be prosecuted and, if convicted, imprisoned? Or prosecute them for having stated that intention? I argue here for the last option, which can be pursued by prosecuting them for threatening to commit terrorist acts. (1)

   The kind of threat with which I am concerned is not the paradigmatic kind of threat, in which the person making the threat tries to communicate the threat to one or more victims. (2) It is the kind of threat in which the potential victims may never know of the threat, but others, who may feel personally safe, have reason to believe that the person who made the threat intends to perform the threatened action. In other words, they think he is a threat by virtue of his making a threat.

   This can easily be misconstrued as allowing the state to punish on the basis of a prediction of dangerousness. It is not that. Threatening, in the sense of stating one's intention to commit a violent criminal act, is an inchoate crime, (3) similar to, but more inchoate than attempt.

   One might worry that prosecutions for threat would run up against the First Amendment protection of free speech. But the doctrine of "true threats" holds that while political hyperbole is protected speech, true threats are not. (4) The problem in this area of constitutional law is only that the case law discussing true threats muddles a number of important distinctions. I will argue, however, that the doctrine can be cleaned up to show why it does and should support prosecuting those who state their intentions to commit terrorist (or other violent criminal) acts.

   I proceed in four parts. First, in Part II, I present a hypothetical but realistic case that illustrates the potential for this problem to arise. This example helps illustrate the basic concerns that point in favor of the prosecutorial option. In Part III, I summarize an argument I have made elsewhere, that U.S. citizens should not be subjected to long-term preventive detention, at least not now, when the police and the courts are functioning normally. (5) In Part IV, I explain briefly why monitoring alone is not a position that should be relied on if detention is a legitimate option. And in Part V, I discuss the crime of making threats, including terrorist threats. To address the incoherence in threat doctrine as it now stands, this Part is divided into three sections. In the first, I describe the doctrine of true threats and explain why it is incoherent. In the second, I explain how it should be carved up into two distinct crimes: threatening a victim (a potentially complete crime) and stating the intention to commit a crime (an essentially inchoate crime). In the third, I defend the inchoate crime against the objection that it takes the notion of inchoate crimes too far from completed criminal acts.

2. ILLUSTRATING THE ADVANTAGE OF USING THREAT CRIMES

   Consider this hypothetical. The CIA receives a tip from U, an undercover agent in Pakistan, that an American citizen, A, is working with members of al Qaeda on a plot to set off a bomb in Los Angeles. The FBI uses that information to get a wiretap on A under the Foreign Intelligence Surveillance Act (FISA). (6) They listen for a few months and note that she has made a number of calls to people who are suspected of being al Qaeda members in Pakistan and the U.S., but the content of the calls is not obviously incriminating. U is consulted, and he says that discussions about charity work in the U.S. are really coded discussions of planned attacks. In that light, the discussions are highly incriminating. If the Government could make the case that A has been plotting to attack Los Angeles, it could prosecute A for conspiracy to commit terrorism. (7) Without calling U in to testify to explain how he knows what the code is and to provide other substantiating information, however, the recorded phone calls would not support proof beyond a reasonable doubt that A is conspiring to commit a terrorist act. Moreover, U cannot be brought in to testify against A without blowing his cover, something the U.S. is currently unwilling to do. (8)

   The U.S. Attorney for Los Angeles has looked into prosecuting A for providing material support to a foreign terrorist organization (FTO). (9) But there is no evidence that she has provided money or services to an FTO. As a next move, the FBI has tried to set up a sting operation, offering to help A obtain explosives, but A consistently, even indignantly, declines. This could be because she is not the terrorist that U says she is, or it could be that she is sufficiently networked into a real terrorist organization that she does not need, and is in fact very careful not to work with people who have not been carefully vetted by her or other al Qaeda members she trusts.

   What should the government do? The traditional answer from civil libertarians is that the government must limit itself to continuing to police A, trying to apprehend and prosecute her if and when she takes action that would constitute a crime, hopefully before she causes any harm. (10) That is, the government has to hope it can catch her attempting or conspiring to commit a terrorist act, providing material support to terrorist organizations, or committing some other crime that does not involve completing a violent terrorist act. (11) On the other side of the spectrum, those who take the idea that the U.S. is at war with al Qaeda most seriously would call for preventively detaining A as an enemy combatant (EC). (12) Even President Obama, for all of his respect for the rule of law, seems pulled to this side of the spectrum. After saying that "[w]e are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country," he admitted that "there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States." (13) He included in that list those who "made it clear that they want to kill Americans." As he said, "[t]hese are people who, in effect, remain at war with the United States." (14) Granted, he was talking about aliens detained in Guantanamo, not U.S. citizens. But his logic could easily be extended to cover U.S. citizens as well. No doubt, any responsible administration following that logic would want to ensure that U.S. citizens who seem to be members of or collaborators with al Qaeda would have a fair opportunity to contest their designation as ECs. (15) The point, however, is that these procedures would be much more flexible--with more room for hearsay and a lower burden of proof--than the procedures used in either civilian trials or military commissions. (16)

   I have argued elsewhere that the government could be justified in putting U.S. citizens in short-term preventive detention, (17) but not long-term preventive detention. Short-term detention is not such a great burden that we cannot expect the innocent to endure it, while the government tries to determine whether they are in fact innocent, for the sake of national security. For example, we subject people who are awaiting trial, and who therefore have not yet been proven guilty beyond a reasonable doubt, to short-term preventive detention if they are considered dangerous. (18) Moreover, short-term detention has some obvious benefits, both in allowing the government to interrogate terrorism suspects, and in disrupting suspects' plans and relationships with other terrorists. (19)

   Long-term detention--the line is hard to draw, but in many different legal contexts six months seems to mark a transition from short-term to long-term detention (20)--by contrast, is a great burden on an individual. It is more, I argue in Part III, than we can ask an innocent person to endure for the safety of others. Even if the detention is not meant to be punitive, the effect is sufficiently severe that an autonomous U.S. citizen (21)--one who has reached a threshold capacity to use practical reason to frame and pursue a conception of a good life (22)--may be subjected to it only if he has been convicted, beyond a reasonable doubt, of a crime for which a long-term sentence or loss of the right not to be subjected to long-term preventive detention is a fitting punishment. (23) If there is reasonable doubt that he is guilty--and it is hard to eliminate such doubt unless and until the defendant has had a fair opportunity to confront the evidence against him, something he may not be able to do if certain witnesses are not available--then I stand with the civil libertarians and say that such people must not be subjected to long-term preventive detention.

   Let us now add the dimension of a threat. Suppose that a fellow member of A's mosque, M, comes forward and tells the FBI that A has told him that she, A, is a jihadist who plans to detonate a bomb in Los Angeles. (24) Does this make a difference? One might say that it is merely corroboration of what U has told the U.S. government. If M does not provide new information sufficient to convict A of either conspiring or attempting to commit terrorist acts, then he cannot help the government prosecute A. Indeed, even if A had been taken in by the FBI and, under interrogation, said the same thing to the FBI (25)--that she is a jihadist and that she plans to blow up a major building in Los Angeles--one might think that the civil libertarian position would require the government to let her go and wait for her to actually attempt or conspire to carry out her plan. (26)

   That, however, would arguably be a reductio ad absurdum of the civil libertarian position. Surely the government should be...