From Volume 80, Number 3 (March 2007)
There is a continuum that runs from contemplation to completion of a criminal act. Precisely how early along that continuum does federal criminal liability attach in circumstances involving potential acts of terrorism?
The significance of this question became apparent during the summer of 2006 in the wake of a string of arrests in terrorism-related cases both at home and abroad. The first set of arrests came in Toronto in early June, when approximately seventeen men were taken into custody by the Royal Canadian Mounted Police on charges that they had acquired three tons of ammonium nitrate and were planning to bomb a variety of targets in Ottawa. Eventually, two U.S. citizens also were arrested in connection with this group. Meanwhile, in late June, local and federal agents in Miami arrested the head of an obscure religious sect known as the Seas of David, along with six followers, on charges that they were conspiring to carry out a bombing campaign, possibly to include the Sears Tower in Chicago. Two weeks later, the press reported that officials in Lebanon and elsewhere had arrested participants involved in a plot to destroy the Holland Tunnel, which runs under the Hudson River between New Jersey and New York City.
In each of these cases, U.S. government officials have gone out of their way to calm the public by emphasizing that the plots were disrupted at a preliminary stage. Speaking of the Miami arrests, for example, Federal Bureau of Investigation (“FBI”) Deputy Director John Pistole observed that the plot was “more aspirational than operational.” But the early nature of prosecutorial intervention in these and other terrorism-related cases has not been welcomed in every quarter. The prospect that the government has adopted a policy of prosecuting suspected terrorists at the earliest available opportunity has generated criticism from both the civil liberties and national security perspectives, with the former contending that we risk prosecuting dissenting thought uncoupled from culpable action and the latter contending that such a policy would sacrifice the benefits of additional intelligence and evidence gathering.