Tuesday, July 18, 2006

Chat Room Terrorists and Jurisprudence

Following my last post, I received the following from Mike:
I think it useful to step back and see the chat room question (and as we will see a number of other current issues) as the working out in practice of the essential conflict in a decent society’s criminal jurisprudence. I assume that in American court room trials pretty near everyone does not want to see those innocent of a particular crime found guilty, but also does not want to see those guilty of a particular crime found innocent. Our entire criminal justice system is based on trying to find the best compromise between these two inherently conflicting goals. It is not true that our society works on the principle of not convicting even one innocent person, even if it means 100 guilty ones were also freed. The reason is that we assume the more certain that the guilty will be punished (even if that means punishing some of the innocent), the more punishment will act as a deterrent to future criminal behavior. Thus in some sense, our rules weigh the chance that innocent persons will are punished against the number of other innocents who are not victimized in the first place because the potential criminals are deterred by the likelihood of punishment. However (and here we do to a considerable degree follow the rabbis), we tend to strike the balance (and I certainly agree that we should) on the side of freeing the innocent (e.g. no hearsay evidence, let alone tortured confessions).

The difficulty arises when what we are trying to deter is not ordinary criminal behavior, but what we perceive as the extraordinary behavior we call terrorism. A few current examples

The Guantanamo “trials” – The Bush people want to totally change the balance. No rules on confronting (and thus being able to cross-examine) your accuser, on hearsay evidence, even on torture to get confessions. To convince us to allow that behavior, the administration has to make us see the people involved not simply as garden variety criminals, let alone enemy combatants, but as “terrorists”. One key counter argument (see today’s Times) as made by military people is that our “innocent” military people will then be treated the same way. In short, these mostly military people argue that to keep the balance at the same point for our “innocents”, we can’t move the balance sharply for the “terrorist” guilty.

Raiding Congressman Jefferson’s office – the prosecutor insists they are trying simply to catch a criminal, but absent the terrorist argument, they insist they are not changing the balance point, (even though they have no precedent for what they did). Yesterday a court agreed that they have not changed the balance from a legal perspective (although there will be appeals), but those of us who find their behavior outrageous essentially think they have radically (and more important unilaterally) altered how society has understood that balance. Indeed, I think there far less to say in defense of the administration on this issue than on Guantanamo, or

The chat room “terrorists” – The issue of whether mere speech is sufficient for conviction is one of the ways (in my view, of course, extremely desirable ways) that we set the balance to worry more about convicting the innocent than about freeing the guilty.

The difficulty is in deciding whether such essentially public speech (chat rooms are open areas) does sufficient immediate harm (in terms of seeming to allow society to appear to condone the uncondonable – think Holocaust denial), or long range harm (in allowing people to meet one another and form alliances etc), that we should change the balance point in favor of convicting the not actually yet guilty so as to increase deterrence (or as in this case to simply remove the potential offender). I’m not sure where I come out here, and would be interested in your views.

Mike describes our criminal justice system as more concerned with punishing the guilty and thus deterring others from committing crimes than with preventing the rare conviction of an innocent person. This is indeed how it often plays out. We share a concern that the balance will tilt to privilege punishing the guilty over ever worrying about convicting the innocent.

These are clearly not Sanhedrin rules, and while I do not mean to suggest that Sanhedrin rules would work in an age when forensic evidence and DNA can be more telling than witnesses, I would invite us to do the thought experiment of imagining how new classes of evidence might have modified Rabbinic stringincies.

For example, assuming that we are all "Torah scholars" to the extent that we "know" right from wrong and need not be "warned" when caught in the act, do we arrest those who have expressed an interest in committing the act but have taken no steps toward implementing that commitment? Mike suggests that criminalizing speech that describes acts that no civilized people would condone may tilt the balance vis a vis punishing the innocent to avoid freeing the guilty.

As Reed Chopper suggests, the category of chat room terrorists can be viewed through the Rabbinic lens of words as deeds. Mike offers the more challenging example of the Holocaust denier. Taking that example seriously, I begin by asking who the Holocaust denier harms? What action is effected by his words? Ultimately, I see the damage as being to the integrity of our memory and an assault on our heritage.

How do we measure this offence? Is it any different from the science-denier who defies the evidence of global warming and willfully perpetuates behavior that will ultimately make our land uninhabitable? Or the constitution-denier who would criminalize stem cell research (from a fundamentalist need that defies the separation of church and state) that might prolong lives and alleviate suffering?

These are crimes that our rabbis could not have anticipated. What evidence would they require to convict and what punishment would they impose upon the guilty?