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 the Church’s 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.