an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The assassin who killed Dr. George Tiller at his church, murdered Tiller in order to keep him from performing therapeutic abortions for women. The murderer is one of a long line of religiously inspired radicals who have tried to shut down abortion providers through bombings and murders. They are not the mainstream of the pro-life movement; they are a fringe sect who are not content to protest abortion or even to engage in non-violent civil disobedience. Instead, they believe that they are justified in bombings and killings to prevent great evils that they regard as contrary to God's fundamental law.
Using violence-- like bombings and murders-- to intimidate people in this way is terrorism. It is so in common language, it is so defined in U.S. law. The terrorist in this case and the terrorists in previous abortion clinic bombings and murders are, as far as I am aware, not foreigners. They do not have Arabic or Islamic names. They are American and they live in the United States. However, just like Islamist terrorism, this terrorism is driven by fanatical religious belief. Many religiously inspired terrorists live in other countries; some, however, (who include both Christians and Muslims among their number) live in the United States and are U.S. citizens or resident aliens.
If bombings of abortion clinics and murders of abortion providers are acts of terrorism, should we treat the problem of terrorism that they present the way we treat the problem of terrorism from Al Qaeda and other groups? That is, should Scott Roeder, who is currentlysuspected of being Dr. Tiller's murderer, be treated the way we would treat a suspected terrorist who we believe may have ties to Al Qaeda? Should we treat him like Jose Padilla, an American citizen who was apprehended at O'Hare airport and detained in a military prison in the United States for several years? (That is, until the government transferred him to the criminal process in order to avoid judicial review of his detention.)
In particular, consider the following questions:
(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?
(3) The U.S. government has argued that at least some terrorists should not be tried through the criminal process with its various Bill of Rights protections but instead can and should be tried through military commissions, where the standards of proof and various procedural protections are lowered. If Roeder is a domestic terrorist, can the U.S. government subject him to trial by a military commission instead of a criminal prosecution? Although the current version of the 2006 Military Commission Act does not bestow jurisdiction to try citizens, could we or should we amend it to include citizens who we believe are likely to commit or have committed terrorist acts?
(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?
My assumption is that the government may not do any of these things. Roeder lives in the United States. He should be treated according to the ordinary criminal process. We should not be able to strip him of his rights simply by calling him a suspected terrorist, and it should make no difference whether he is a Muslim or a Christian, whether he is white or brown. 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.
The difficulty is that our national deliberations on terrorism have largely proceeded on the assumption that all terrorists are non-Americans and/or non-Christians who live in or come from distant lands. They are not part of the American community, they are not "people like us" and therefore do not deserve the rights and protections of "people like us." We can detain them indefinitely, and even subject them to interrogation procedures that we would never apply to "real Americans."
But terrorism is a tactic, not a religion, an ethnicity or a nationality. There are, and always have been, American terrorists, including white and Christian terrorists. We have tended to obscure these facts in our debates, engaging in a sort of collective amnesia about domestic terrorism. We have done this even though, prior to 9/11, the country's attention was riveted for months by the Oklahoma City bombing, planned and carried out by homegrown terrorists who looked nothing like the bogeymen we associate with Al Qaeda. Whenever we contemplate national security courts, or preventive detention, or military commissions, or enhanced interrogation techniques, or any of the various devices that have become characteristic of the War on Terror, we should always stop to ask whether we would apply those techniques and devices to domestic terrorists born and raised in the United States with white skin, Christian beliefs and Christian names. That is because Dr. Tiller's assassin is not the last domestic terrorist claiming to act in God's name. There will be more.