Terrorism, Security, and Slippery Slopes

Ashcroft's been writing a sequel to the USA Patriot Act. Here's just one of the problems with it.

While we weren't watching, a slope just got slipperier. John Ashcroft's staff has been writing a bill, and the Center for Public Integrity, a good-government group in downtown D.C., has obtained a draft of it. The Center describes the Domestic Security Enhancement Act of 2003 as a "bold, comprehensive sequel to the USA Patriot Act passed in the wake of September 11," which was already bold and comprehensive enough for some of us.

The original Patriot Act was criticized, here and elsewhere, for trampling important civil liberties and privacy protections and for being rushed into law before the legislators even had a chance to read it. The new one gives civil libertarians yet more to worry about: Among many other measures, it would create a DNA database of "suspected terrorists," would allow terror suspects to be held without bail, and would allow the feds to strip an American of his citizenship "if, with intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a 'terrorist organization.'" Chuck Lewis and Adam Mayle of the Center note that, "whereas a citizen formerly had to state his intent to relinquish his citizenship, the new law affirms that his intent can be 'inferred from conduct.' Thus, engaging in the lawful activities of a group designated as a 'terrorist organization' by the Attorney General could be presumptive grounds for expatriation."

At this point, some of you will be thinking, Is this such a bad thing? Terrorists do really bad things, like setting off bombs in public places and flying airplanes into buildings filled with innocent people. It hardly seems worrisome to keep track of their DNA or to expatriate them, right?

There are many potential replies to this. The most significant problem, though, may have to do with the definition of "terrorism" itself.

Federal law, as amended most recently by the USA Patriot Act, is very precise about what constitutes terrorist activity. Some of the behaviors listed—"hostage taking," "wrecking trains," etc.—fit the conventional idea of the word. Others do not, unless you lay awake at night worried about computer hackers. Any group that has ever engaged in violence—defined to include use of a "dangerous device … to cause substantial damage to property"—can now be designated a terrorist organization, from the Black Bloc to Operation Rescue. Under the proposed law, anyone who provides "material support" to a group so designated could be stripped of his citizenship.

Now, I know full well that the clause in question was not written with Operation Rescue or even the Black Bloc in mind. It was written to deal with people like John Walker Lindh and Yasser Esam Hamdi, American citizens charged with joining the Taliban and taking up arms against their country. It can be "inferred" from their "conduct," many will argue, that they no longer regard themselves as American citizens and no longer deserve the protections that Americans receive. The point may be debatable, but it's sheer alarmism to start declaring that globalization protesters and fetal rights activists are going to be thrown in the same brig.

The trouble with that argument is that it assumes the law will forevermore be enforced by the people who wrote it. Even if you think it's appropriate to use this measure against the John Walker Lindhs of the world, there's no guarantee that future administrations (or this administration) will always limit themselves that way.

I am making what is commonly called a "slippery slope argument." This style has its critics, such as National Review's Jonah Goldberg, who enjoys pointing out the more extreme examples of the form and declaring that such illogic is where slippery-slopism inevitably leads. (Think of it as a slippery-slope argument against invoking slippery slopes.) In this context, the absurd version of my position would involve arguing that, say, the Vatican might one day be construed as a terrorist organization and that millions of Catholics will be rounded up and deported in some mad cross between the Reformation and the Palmer red raids. I'm going to go out on a limb here and say that that's not going to happen.

Instead, I'll note that Western politicians have already attempted to lump "eco-terrorists," an ill-defined category that includes arsonists and bombers but mostly consists of mere vandals, with the Al Qaeda brand of criminal. In Denver, police spies designated the American Friends Service—i.e., a bunch of Quaker pacifists—a "criminal extremist" group. Protestors of the anti-WTO variety are regularly rounded up already, along with anyone else in the area, when police want to squash a mass demonstration. Some groups are targets already. In the right hands, this law becomes a gun.

The law itself, of course, is just a proposal at the moment—no, a draft of a proposal. The White House claims that it hadn't seen the draft before the leak, though that is belied by the document's control sheet, which clearly shows that Vice President Dick Cheney received a copy in mid-January, along with House Speaker Dennis Hastert. But I don't want to harp on that. If the administration wants to disavow this dangerous bill, it has my blessing.