Hilzoy and Jack Balkin use the fact that the campaign of violence against providers of reproductive-health services fits most reasonable definitions of “terrorism” to construct a reductio ad absurdum about the claim that anyone accused of “terrorism” suddenly loses all rights. Good, clean fun.
But there’s a related question where the answer isn’t so clear. It turns out that Scott Roeder, with a history of violence, had been reported to the federal authorities for vandalizing a clinic the day before the shooting, driving the same car he later drove away from the church where George Tiller lay dead, but the person making the report was told there was nothing that could be done. Somehow I think that if a Muslim with a comparable history had been behaving comparably around a synagogue, the reaction might have been different.
So how should federal and local law enforcement respond in the face of the terrorist threat from the extreme Right-to-Lifers?
Attorney General Holder has already announced that the Marshal Service is stepping up protection for some clinics and doctors. But that’s strictly on the defensive side. There’s also the option of going on offense: using surveillance and undercover penetration to try to discover plots before they’re carried out. Inevitably, that will often mean that it’s hard to tell how much of the “plot” actually existed before the informant started to stir it up. Aside from the technical legal question of “entrapment,” there’s the policy question about how much of that sort of activity is really healthy, especially since those caught are likely to be the Sad Sack terrorist wannabees rather than anyone serious. But the big benefit of that sort of activity is the distrust it sows among those who might consider conspiring. The corresponding big risk is suppressing Constitutionally protected speech and association.
Should the FBI or BATFE have undercovers sniffing around Randall Terry’s friends, or whatever is left of Operation Rescue, or Fred Phelps’s church? Nothing we know about the shooting suggests that Roeder had any help, but some of the previous attacks on the clinic suggested a fairly high level of organization.
It wouldn’t have been hard to figure out that someone with a conviction for bomb-making and a history of making threats, who had expressed support for “justifiable homicide” and who had visited the person who had previously shot Dr. Tiller in prison, and who was currently engaged in vandalism, might be worth arresting before, rather than after, he killed someone. What we don’t know is how many false positives would have turned up.