by Matt Barr

One of the strangest legal statements of all time

Is what Dahlia Lithwick calls this: "I think it's dangerous for us to try to make an evaluation, case by case, as we look at potential terrorist plots and making a decision, well, this is a really dangerous group, this is not a really dangerous group." "Really? Because I thought that's what government lawyers were supposed to do," snarks Lithwick. Context:

In one of the strangest legal statements of all time, Attorney General Alberto Gonzalez on Friday said, "I think it's dangerous for us to try to make an evaluation, case by case, as we look at potential terrorist plots and making a decision, well, this is a really dangerous group, this is not a really dangerous group." Really? Because I thought that's what government lawyers were supposed to do. The most dangerous aspect of these new terror arrests isn't that the government nabbed super-nice guys. These plotters hate this country and want to harm it. The danger is that there is no nuance, no caution, and no shade of gray in this new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what's on his mind.

Gonzales and his colleagues seem to be falling into a familiar trap here: They think that since 9/11 happened due to government inaction, any and all government action should be welcome—including widespread arrests of genuine plotters along with hapless paint-ballers. The law works best when it's used as a scalpel, not an ax. So please, let's not start arresting citizens for the badness of their thoughts. Because whoops, I just had another one.

"[N]o nuance, no caution, and no shade of gray in this new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what's on his mind" certainly sounds scary. The Attorney General's actual statement, also in context, happily reveals that Lithwick's fears are unfounded:

QUESTION: From reading the indictment, it appears that about a month ago, their plans, sort of, fell apart, which raises a couple questions.

QUESTION: One: It appears they had real criminal intent, but did they have the capability? That is, were they just naive and incompetent? In other words, were you ever afraid that they could really pull off this plot?

GONZALES: I think it's dangerous for us to try to make an evaluation case by case as we look at potential terrorist plots and making a decision, "Well, this is a really dangerous group; this is not a dangerous group."

We look at the facts in every particular case. And we felt that the combination of the planning and the overt acts taken were sufficient to support this prosecution. And that's why we took this action.

There is no immediate threat. We've already publicly announced there's no immediate threat to facilities in Miami; no immediate threat to the Sears Tower.

Obviously, part of the reason for that is because they didn't have the materials they requested. They didn't receive the weapons, at least we don't know of.

But nonetheless, they did take sufficient steps that we believe does support this prosecution. That's why we took the action that we did.

Empasis supplied, which is I'm sure you'll agree only fair. If Lithwick would have included the first bolded sentence in her article, her "Really?" would have kind of fizzled, wouldn't it have?

The "I think it's dangerous" bit is kind of dumb, though certainly not the dumbest legal statement of all time. The entire answer is completely reasonable.

The complete article by Lithwick contains reasonable enough discussion of an important concern, leavened though it may be by her wanting to make sure everyone knows she really doesn't like the Bush administration (we got it before the last sentence, by the way. We got it some large number of columns ago.). But I wonder whether when the FBI runs into a couple fundie oafs who make noise about bombing abortion clinics, certain commentators favor treading as lightly as they think we should in the case of plots to blow up the Sears Tower.

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