Some Good Questions...

Jack Balkin over at Balkinization raises some good questions about how we ought to respond to the domestic terrorism of Scott Roeder seen over the weekend:

(1) Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers? If we believe that Roeder and other domestic terrorists will plan further attacks on abortion providers and abortion clinics if we let them free, can we subject them to indefinite detention?

(2) The Obama Administration is currently considering a national security court to make decisions about the detention of suspected terrorists, with the power to order continued preventive detention. Should this court be able to hear cases involving U.S. citizens, whether they are Muslim or Christian?

(3) The U.S. government has argued that at least some terrorists should not be tried through the criminal process with its various Bill of Rights protections but instead can and should be tried through military commissions, where the standards of proof and various procedural protections are lowered. If Roeder is a domestic terrorist, can the U.S. government subject him to trial by a military commission instead of a criminal prosecution? Although the current version of the 2006 Military Commission Act does not bestow jurisdiction to try citizens, could we or should we amend it to include citizens who we believe are likely to commit or have committed terrorist acts?

(4) One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

(5) Terrorists and terrorist organizations need money and resources to operate effectively. Often the only way to stop them is to dry up their sources of financial and logistical support. Can the U.S. government freeze the assets of pro-life organizations and make it illegal to contribute money to a pro-life charity that it believes might funnel money or provide material support to persons like Roeder or to organizations that practice violence against abortion providers? Can the government arrest, detain, and seize the property of anti-abortion activists who helped Roeder in any way in the months leading up to his crime, for example by giving him rides or allowing him to stay in their homes?