On Fri, 14 Jun 2002, Wojtek Sokolowski wrote:
> Let me reverse that question. Should a person with a criminal record,
> known to have contacts with terrorist organizations, be released from
> custody on a technicality?
As Justin and Bill Bartlett and others have laid out quite well, letting someone go because you haven't got any legal evidence against them isn't a technicality, it's the law itself. I think a "technicality" can be roughly defined as when you have evidence that proves X is a bad guy but you're not allowed to introduce it in court because of rules designed to restrict the coercive powers of the state. That's not Padilla's situation.
When you switch from Padilla to a praise of greater airport security as a prime example of restrictions people should be willing to endure in the cause of greater security, you argue against yourself. Increased airport security is not a restriction of our legal liberties, and I don't believe anyone on this list is against it. It's a rather good example of an effective countermeasure that doesn't compromise civil liberties.
But behind this you have a larger question, which is actually two questions: (1) What restrictions on our liberal ideals (more in the broad moral than in the narrow legal sense) are justified when (2) we face an enemy who is somehow unprecedented in the threat he poses us on account of his determination, slipperiness, striking power, or some combination of all three.
I think the answer to question (1) is (a), as just mentioned, more invasive security procedures in public places, and (b), generally unmentioned, a new immigration regime that is no longer letting any non-citizen arabs or muslims into this country until they can prove themselves innocent, essentially assuming the whole vast group guilty until proven innocent. I can't prove this, but I'll bet it's true based on what we see of how the government has treated members of this group already in this country. And I don't think anyone in America, never mind on this list, would find this speculation difficult to entertain. I think we all assume deep down it's happening. It's a crude approach, but it has a certain logic. It's certainly an encroachment on liberal ideals; it's almost an inversion of them. And existentially, I think it's been pretty largely accepted by all, if only tacitly, as a illiberal stopgap measure of indefinate duration.
But I'd also like to address question (2), which is tacit in your original question: how big a threat are these guys? We can't know anything for certain. And if your position is that any uncertainty, times enormous theoretical destructive power, equals enormous real threat, well then the threat is eternal and can never be dealt with. We can only address your question of what responses and sacrifices would be proportionate if we deal with it like we deal with everything else in life, by analogy and guesswork and fudge factor. And the evidence so far is that Al-Qaeda is no longer much of a threat to the US homeland. They are a threat to other countries, in Central Asia and the Middle East and elsewhere (although they are weaker there than they were before too). But vis a vis the United States they seem to be on the outside trying to get in. And judging by the results, our systems, both crude and sophisticated, of keeping them out seem to be working.
My analogy is essentially to Israel and its foes on the West Bank. When Israel invades in response to terrorism, their enemies strike back almost instantly to show that the invasion has not worked. Even one bomb that only kills one person sends a message that Israel hasn't won. And for the life of me, I can't think of a single reason why Al-Qaeda wouldn't have the same desire to show that our invasion of Afghanistan, still ongoing, hadn't beaten them. If they had a single suicide bomber left in this country, I can't think of a single thing that would have stopped him from walking into a cineplex or a mall or train station in winter clothes strapped with bombs while the invasion was going on or now in the period afterwards. We don't have security in front of any of those places and this country is vast. One such bombing plus a claim of responsibility would have sent the country into hysteria. And yet they didn't. From which I conclude they couldn't rather than they didn't want to. That for the last nine months they've had no effective ability to strike us despite an overwhelming desire to. That so far our defense has been more than equal to their offense.
So the restrictions on our liberal ideals that we have already accepted seem to me to be up to the task. I see no justification for making them more draconian. So letting Padilla go -- and no doubt continuing to observe him as they did before, which no one is protesting -- doesn't seem at all like liberal fundamentalism. It seems rather like the soul of compromised pragmatism: don't give up liberties you don't have to, out of pure self interest.
In sum, people who protest further encroachments by the state as unnecessary and dangerous are not uncompromising libertarians. We are all already extremely compromised whether we like it or not. The question is where you draw the line and why. And you haven't succeeded in making any case that we should draw it more draconianly than we already have.
Michael