Making the Arrest Before the Crime The FBI says it thwarted a terrorist attack on New York, but some critics argue that the plot was all talk. They ask: where's the crime. It's part of an ongoing debate over pre-emptive arrests.
NPR logo

Making the Arrest Before the Crime

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Making the Arrest Before the Crime


Making the Arrest Before the Crime

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


This is TALK OF THE NATION. I'm Lynn Neary in Washington. Neal Conan is on vacation.

Last week, at a press conference in New York, the FBI announced that overseas authorities had arrested Assem Hammoud, a Lebanese citizen, and had taken two other men into custody. According to officials, the three men were part of a conspiracy to launch a suicide attack of the train tunnels that connect New York City and New Jersey.

The FBI special agent in charge of the investigation said, quote, “The planning or the plotting for this attack had matured to the point where it appeared the individuals were about to move forward.”

But federal and local law enforcement authorities admitted there was no evidence that the would-be attackers had the money to finance the plot or the explosives to execute it.

Since 9/11, the government has taken preemptive action to bring down terrorists and terror cells before they can act on their plans. Administration officials and law enforcement agents argue that preemptive arrests are a valuable weapon on the war on terrorism. Opponents worry that such arrests violate basic civil rights.

Later in this hour, Ralph Reed's primary fight in Georgia, and the latest push to increase the minimum wage. It's our regular Wednesday visit with Political Junkie Ken Rudin. But first, preemptive arrests in the war on terrorism.

If you have questions about this topic and how preemptive arrests work or don't work, give us a call. Our number here in Washington is 800-989-8255 - that's 800-989-TALK. And our e-mail address is

Joining us by phone from his office in Washington is Eric Lipton, a Pulitzer Prize-winning reporter for The New York Times. Last week, he wrote an article on preemptive action for the newspaper. Thanks for being with us, Eric.

Mr. ERIC LIPTON (Metro Reporter, The New York Times): Hello. How're you doing?

NEARY: Listen, just to remind our listeners, could you go over the details of the alleged terrorist plots that were announced last week in New York, and earlier, in Miami?

Mr. LIPTON: Sure. First, in Miami, there was - in late June - there was an announcement of the arrest of a group of men there who were supposedly were plotting to possibly attempt to bomb the Chicago Sears Tower. They were a group of men who had been subject to some monitoring by an informant there, and who had talked about their attempt to take such an action - although none of them had actually staked, you know, done any surveillance work in Chicago to look at it and to see how you would pull off such an act, or taken any steps to actually acquire the explosives that would be needed or raise the money they would to pull the whole thing off. Those men are all in custody and are filed, a number of charges were filed against them with the allegation that they intended to take such steps.

More globally, there was the apprehension in Lebanon, in Beirut, of a man who supposedly partook in an Internet site, in conversations with others talking about the possibility of trying to take out or bomb a tunnel in New York. And there were eight individuals, they said three of them are now in custody, that were - participated in these chats, and that either - how far along that plot went is also unclear.

NEARY: And are they - what are they charged with?

Mr. LIPTON: Well, they, the individual in Lebanon has been detained by a foreign authority, so there hasn't been very many specifics about what actual charges are. I actually, the details of that, of what the individual is charged with, I don't know.

NEARY: Right.

Mr. LIPTON: He was, all they're saying is that three people were apprehended. They won't name who the other two were or what countries they're in, or for what, on what charges. They're just saying that three people have been apprehended. They're looking for a total of eight, all of whom were involved in some way in this internet space where they were contemplating taking out or trying to destroy a tunnel, perhaps the PATH tunnel that connects New York and New Jersey.

NEARY: And the suspect detained in Lebanon, do we have any idea whether there would be some attempt to extradite him, or whether - if there is a prosecution, where it would take place?

Mr. LIPTON: No clarity on that right now, no.

NEARY: Okay. Well, what is unique about these cases?

Mr. LIPTON: Well, I mean, the traditional notion of investigating a crime is that you - you know, a crime occurs, you look at the evidence, and you then begin an investigation based upon the evidence to find suspects and then collect enough to potentially bring charges and then prosecute the individual. Or, you know, preemptively, if there is a ring of organized crime or crimes that have been committed previously, you know, you perhaps get search warrants and you, you know, investigate. And, it just - the evidence is easier to find and to use in court to prosecute based on actual intent or actual commission of a crime.

In these cases, these are people who, you know, the term that sometimes the investigators are using is that they're aspirational, that…

NEARY: Right.

Mr. LIPTON: …and so, you know, dividing between when a person is essentially, you know, sort of, you know, talking up a talk, and actually has the capacity and intent to, you know, go beyond bravado is a hard thing, I'm sure, for the investigators. And it's really sort of a question that has been raised here.

And then, one of the related questions is how do we in the media treat these stories when - you know, as soon as you say that someone wants to bomb the Sears Tower or to take out a tunnel between New York and New Jersey - it's an enormous story, but if these people are sort of just on an Internet chat site talking about such a thing and none of them have come to the United States, and, you know - is that a front-page story? It's a question that I think is also related that we have to answer.

NEARY: Well, and is there any way of really knowing how effective preemptive action or preemptive arrests such as these have been since September 11th in preventing the future, any more terrorist attacks?

Mr. LIPTON: Well, I mean, the Justice Department just recently, actually, after the Miami apprehensions, you know, put out a press release that said that they've, you know, 261 defendants have been convicted or pleaded guilty in terrorism or terrorism-related cases. And, you know, and of course then they also tell, importantly, that there have been no additional attacks in the United States. You've had attacks throughout Europe and Asia since 2001. And, you know, what the relationship is between these prosecutions in the United States and the fact that there has not been a follow-up attack to 2001 is hard to know. Is it a factor? Perhaps. And, you know, their point of view is that this is a strategy that's important and one that is working.

NEARY: Yeah. And how does politics play into all of this, Eric?

Mr. LIPTON: Well, I mean, one of the things that was observed to me by a professor at the University of Richmond, who sort of keeps track of these prosecutions is that, I mean, you - you know, on the day, I mean - now, again, whether or not there's any relationship here is impossible to know. But, you know, on the day that the Times was publishing the story about the monitoring of financial records, the, you know, the government announced the apprehensions of the men in Florida, who thought that perhaps they would be, you know, attempting to bomb the Chicago, you know, Sears Tower.

I mean, there are people, just like with the color coded alert system, who speculate any time you make apprehensions like this, that, in which the actual intent is not as clear cut as someone who might have a weapon and the financial capacity, they question whether or not this is really just to, you know, inspire the American public in some confidence that the Bush administration is really moving on this front.

Again, how do you really know that definitively? It's impossible. But there -people have raised that question.

NEARY: Well, joining us now to talk about the law and the history behind preemptive arrests is Bruce Ackerman, Sterling Professor of Law and Political Science at Yale University. His latest book, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, was published in April. Professor Ackerman joins us from a studio in Yale's campus in New Haven, Connecticut. Thanks so much for being with us, Professor Ackerman.

Professor BRUCE ACKERMAN (Sterling Professor of Law and Political Science, Yale University): Hi. It's a pleasure. It's a pleasure.

NEARY: I presume, Professor Ackerman, in these kinds of cases, that these people would be charged - if with anything - with conspiracy, presumably. First of all, what does it take to be convicted of conspiracy in the U.S.?

Prof. ACKERMAN: Very little. The fact is that conspiracy is a tremendous blunderbuss, and it's an idiosyncratic curse, I would say, of English law. This kind of broad, broad net where very small number of minor actions might - or might not, of course, in the judgment of the jury suffice - is our peculiar inheritance, and it's a bad one. In Europe, such a crime is not known.

NEARY: So, you cannot be convicted of conspiracy elsewhere in the world? Is that what you're saying?

Prof. ACKERMAN: That's right. That's right. You have to have a much tighter relationship to attempt in order to be convicted. And, in fact, in the most recent case in the Supreme Court on Guantanamo, the question was whether the American law of conspiracy qualified as a part of the International Law of War. And four justices of the Supreme Court said no, because of its idiosyncratic character, we could not use this in the military tribunal in Guantanamo.

NEARY: We are talking about preemptive arrests with New York Times reporter Eric Lipton and Yale professor Bruce Ackerman. If you'd like to join the discussion, the number is 1-800-989-8255. Let's take a call from Samuel, and he's calling from Denver, Colorado. Hi, Samuel.

SAMUEL (Caller): Hello, there.

NEARY: Go ahead.

SAMUEL: Yes, I have a question about if from either previous court cases or policy makers or some sort of precedent has been established on where the line is drawn between people - say chatting on the Internet in a chat room - about, with the intent of carrying out a terrorist act versus, say, a group of people just talking about it, not - without the actual intent of carrying it out. And the situation I could think of such a thing happening would be, say, a simulation where you have a couple of people who play the role of terrorists and talk about, you know, okay, well, if we were to strike, where would we that we know where to put, you know, better defenses or security for various buildings. So, I'm curious - where does the line drawn between that?

NEARY: Eric Lipton or Professor Ackerman?

Prof. ACKERMAN: Well, this is Bruce Ackerman. First of all, there has to be an agreement, not just chatter. And there has to be actions in the effort to implement the agreement, but how many actions and how large a step toward achieving the aim is for the jury really to tell. And there is, of course, another dimension here, which is government efforts to induce the crime. This is the question of entrapment, and that, too, might be an issue in play here. Did the government actually try to encourage these people to commit the crime…

NEARY: And Eric Lipton -

Prof. ACKERMAN: …by having agents in there?

NEARY: Eric Lipton, before we let you go, just wanted to question. You know, in reading articles about this, I saw one law enforcement official quoted as saying, you know, once they go operational, they leave that area of aspirational. They go silent, and that's why we have to get them before they go operational. Is that anything you've looked into as a reporter?

Mr. LIPTON: Well, I mean, the concern is sort of the notion of the sleeper cell and that, you know, that essentially, once they have their directives and they have sort of gone to a phase of now we're going to act on this, that they stop communicating with each other and they just sort of try to become moles in near or at the place where they're going to carry out the act. That is, you know, more of an al-Qaida type of a method.

NEARY: Okay, thanks so much for joining us, Eric. We appreciate it.


NEARY: Eric Lipton is a national reporter for the New York Times. We are talking about preemptive arrests and when a crime becomes a crime. We're taking your calls at 800-989-TALK. We're going to continue with this discussion after a short break. I'm Lynn Neary. It's TALK OF THE NATION from NPR News.

(Soundbite of music)

NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington. Twice in recent weeks, authorities have broken up what appear to be terrorist plots in the making. Both cases were still in the early planning stages. The arrests stirred debate about when a crime actually becomes a crime. Our guest is Bruce Ackerman. He's the Sterling Professor of Law and Political Science at Yale University. We also want to hear from you. If you have questions about preemptive arrests, their history and how they work, give us a call at 800-989-TALK. Our e-mail address is Joining us now also is John Zwerling, a defense attorney who practices law in Arlington, Virginia and he has represented several terrorist suspects, including Ahmed Omar Abu Ali and Seifullah Chapman. He joins us in Studio 3A. Thanks so much for being with us. And could you - perhaps for our listeners who aren't familiar with the cases -maybe you can summarize them for us quickly.

Mr. JOHN ZWERLING (Defense Attorney): Well, Seifullah Chapman was alleged to have been part of what they call the paintball conspiracy that is a group of young Muslim men who were, prior to 9/11, played paintball in the suburbs in Virginia as a way of getting fit and learning a little bit about, you know, rudimentary tactics. Paintball's a pretty popular sport all over the place. Post 9/11, the federal government gave a much darker view of this activity and charged a series of these young men with conspiracy to violate the Neutrality Act. That is, they were going to try to help the Kashmiris and the Pakistanis in the conflict over Kashmir against the Indians through some type of support. Not a crime that most Americans would feel threatens them, and for this, Seifullah Chapman has been sentenced to 65 years in prison without parole. That's his case.

Abul Ali was convicted of conspiring to, with al-Qaida, to kill the president of the United States and free the brothers from Guantanamo. He was going to somehow free the brothers from Guantanamo, and because he was born in Texas, he would be able to get close to President Bush, as we all know, and be able to assassinate him. The evidence against him was a taped confession made to the Saudi prison officials and police authorities, which was given to the FBI almost immediately. A year after the FBI received this information, they went to the community in Falls Church - the Islamic community - and assured them that they saw no reason for him to be detained. They obliviously knew what this was all about, this type of a confession…

NEARY: Mm hmm. Mm hmm.

Mr. ZWERLING: …but he's now doing 30 years on prison without parole.

NEARY: Now, in both of these cases, would you describe these as having been preemptive arrests? And would you use that term - we've been hearing this term aspirational versus operational - would you…

Mr. ZWERLING: I would…

NEARY: …(unintelligible) those categories?

Mr. ZWERLING: I would with Abul Ali.

NEARY: Mm hmm.

Mr. ZWERLING: Because, you know, he was studying in Saudi Arabia. Apparently, in the dorms and in the student body, there were people who were militant who would always try to recruit Americans. And he had, you know, conversations with them and then reported it. That report became his confession, and, you know, the absurdity of the - and the impossibility of the crimes that he was supposedly plotting were pretty much - couldn't have been anything more than aspirational, at best.

NEARY: All right. Let's get back to this whole question of conspiracy. You were in the studio as Professor Ackerman was discussing it, and I think you had some area of difference with what Professor Ackerman had said about what it takes to be charged with conspiracy.

Mr. ZWERLING: Well, it doesn't take much talk. It used to be you could say that talk was cheap. It's no longer cheap. You can pay with the rest of your freedom for the rest of your life with just talk. When you're talking about an overt act, it can be as little as buying a cell phone or going to a meeting or driving, you know, in your car and taking a picture of a building. Or going on the Internet and searching something out. It doesn't take anything, really, to be an overt act, so it's not what most people would think when you think of taking a step towards the completion of the project.

NEARY: What about this - what I had asked of Eric Lipton, the reporter for the New York Times. I was mentioning something I had read that I thought was interesting that a law enforcement official said well, we have to arrest these people early, because once they go into that operational phase, essentially, they shut down. And it's really hard to track them down.

Mr. ZWERLING: Well, you know, I think you're mixing apples and oranges here. Because when you're talking - let's take the Miami group. The Miami group no longer had the capability of being a sleeper cell. They were known. For a sleeper cell to be a sleeper cell, it has to be unknown. So whether you arrest them right away - they had already infiltrated them - or you wait to see whether these guys are serious or going to do anything before you waste, or expend, your resources on them. There's not that great a need.

Now, what happened in the arrests that were taking place overseas, that may be a horse of a different color. I don't know enough about that, but I have looked at the indictment of the Miami case, and there's things in there that make you want to laugh or cry. I mean, what these guys wanted to do - one man and five of his friends - that they got charged with - and this is in the indictment as the overt acts - is that they wanted to get al-Qaida to supply them with uniforms and boots so that they could - and guns - so that they could take on the American military here in the United States. I mean, how absurd is that? You know, how are they going to take down the Chicago Tower? They didn't know anything about explosives, they didn't have explosives. You know, you know, it's just insane.

NEARY: You know, I can hear people thinking - and then I want to go back to this with Professor Ackerman - you know, we never would have imagined someone could have taken flight training and learned to file a plane and crash it into the - I mean, I think that before 9/11 we would have thought that that seemed absurd. And in fact, you know, those kinds of signals were ignored, apparently…

Mr. ZWERLING: Well, we knew about it.

NEARY: …by the FBI.

Mr. ZWERLING: We knew about flying planes into buildings and that al-Qaida desired to do that. Our government knew that. I mean, that's something that was not just created on the drawing board in the last six months before it happened. We were aware of that, but we missed all the signals.

NEARY: All right. Professor Ackerman, since 9/11, has there been a dramatic increase, would you say, in these kinds of preemptive arrests?

Prof. ACKERMAN: Well, I think that we should get a little perspective here. The most important threat to liberty through preemptive arrests is not through the criminal justice system. It's through the exercise by the president of an asserted unilateral power to declare American citizens enemy combatants and throw them into military brigs for indeterminate periods without lawyers, without ever having to prove a case.

The classic case here is Jose Padilla, who arrives in Chicago's O'Hare Airport in civilian clothes, without any arms. Attorney General Ashcroft gets on television and says that Padilla is part of a plot to bomb Chicago and other American cities with dirty bomb - a dirty nuclear bomb - and at that point, Padilla is thrown into a military brig, after a couple of months of normal American due process - is deprived of a lawyer, is put in solitary confinement for three and a half years without ever having a hearing in which the government has to even present charges. This is the - and this was upheld, I should emphasize, by the Court of Appeals for the Fourth Circuit. Never got to the Supreme Court. The government let Padilla out and charged him with a ordinary crime at that point, which had nothing to do with the original charges. This is the fundamental threat to American freedom. Nothing like this really has been attempted since the 17th century in England.

What everyone wants to say about these criminal conspiracy charges - first of all, I can't comment upon them. I just don't know the facts well enough on the merits. These people have lawyers, and they, the government has to make its case, and in principle, make its case before a jury. All of…

NEARY: I just want to…

Prof. ACKERMAN: Please, I'm sorry.

NEARY: I just want to ask before you go out.

Prof. ACKERMAN: Sure.

NEARY: We're going to take a call real quickly. But let's go back again - we have to go back to 9/11, obviously. This all comes out of 9/11. And five years later - I remember in the weeks and months and even year after 9/11, there was always that question of when are things going to get back to normal? Nothing seemed normal at the time.

So a lot of this comes from just a - I think we have to go back to that emotion of that time, perhaps. And now five years later, there is an argument to made for the fact that in order to prevent such a catastrophe again, these kinds of preemptive arrests - and let's speak specifically about the arrests now - are necessary for the security of the country.

Prof. ACKERMAN: The law of conspiracy at its many, many weaknesses, have been with us for a long time. There is, with due respect, nothing specifically new here. When the enemy was communists, the law of conspiracy was used against communists. And the one thing that was not used against communists that is being used right now by the president is simply declaring people combatants in the war against terror and throwing them into military prison for indefinite periods while they don't get due process. That's the new thing.

I very much agree that the law of conspiracy is capable of abuse, it has been abused in the past. Self-restraint is important, and I cannot comment on the particular cases without knowing a lot more about them. But at least we have some fundamental safeguards here that are altogether lacking by this new thing of unilateral presidential power.

And the fundamental constraint, of course, is a jury. The arguments that you just heard by a defense lawyer would be presented to a defense lawyer, by the defense lawyer to a jury. Now, of course, the jury system has lots of weaknesses, too, especially during times of panic.

NEARY: All right. Let's take a - we want to go to a call now from Imron(ph). He's calling from California. Hi, Imron.

IMRON (Caller): Hi. I had a question and a comment. My comment was that I think the notion of preemptive arrests is a bit ludicrous, especially if you apply it to other contexts. I don't think anybody would even consider arresting someone for preemptive larceny if they thought about out about stealing an iPod or something like that, you know.

But I think it's particularly insidious when it comes, when it's mixed with a government informant who is actually prodding and actually providing the aspiration to these aspirational terrorists as well as promising the means.

NEARY: All right. Let me ask defense attorney John Zwerling to respond to that comment…

Mr. ZWERLING: Right. This isn't exactly new. In the ‘70s and the ‘60s, the FBI had a program called COINTELPRO, where they used agent provocateurs to try to get the peace movement individuals to think about committing violent acts so that they could then arrest them and make themselves look good and discredit the organization. They did that with the Black Panthers as well.

But the thing I find particularly troubling about some of these prosecutions, when they're really scraping the lowest level of the aspirance(ph) here, is that they are not only diverting resources that could be better spent going after people who are more operational-minded than these fellows, but they also alienate the Muslim-American community who know a lot of these individuals and know that they're decent people and know that they're not the kind of threats that they're being painted to be.

And that's the community that can be most helpful to us and our government in unearthing the real threats. But not if we're going to push them to the point where they become paranoid that we're out to get them because of their religion.

IMRON: As an American Muslim, I wholeheartedly agree with you there. And I think there are cases like the one in Lodi, California recently that just go to show how ludicrous this has become. If you look at some of the information that's come out after the trial, it's been shown that the gentlemen, Omar Hayat who was - or Hamid Hayat who was convicted really had no real desire to go join al-Qaida or do the things he was convicted of. But he was goaded and persuaded to do so by an FBI informant.

NEARY: All right. We're going to - we have an FBI agent standing by who we would like to bring into the show now. Thanks for your call, Imron. We'd like to get that perspective into this program now.

John Miller is the assistant director of the Office of Public Affairs at the FBI. He joins us now by phone from his office in Washington. Thanks for being with us, Mr. Miller.

I don't know how much of the program you've heard so far, but perhaps you can lay out the rationale for the need for preemptive arrests as the FBI sees it.

Mr. JOHN MILLER (Assistant Director, Office of Public Affairs): Well, first of all, preemptive arrest is an invented term. I mean, I don't know if it came from the show or it came from a defense lawyer or something. But, you know, there's nothing in the FBI manual about preventive arrests.

To get arrested by the FBI, you already have to have committed a crime, one that the FBI and the Department of Justice believes is prosecutable. And one that'll be vetted by a grand jury of 23 people, and ultimately by a jury of 12.

And all of the cases that we've discussed here, by and large, Abu Ali went to trial. All of those arguments that were made on this show were made before the court and a jury, and he was convicted. The Lodi case that he caller just referred to, all of those arguments were made before a jury and he was convicted.

So it's easy to kind of say, hello, history, get me rewrite. None of this was fair and nobody would've ever believed it because it's thin. But when 12 people hear the whole story over a period of weeks and months and then they go into a room alone and they discuss, you know, on balance and on their judgment what they make of the whole story and they come up with a verdict based on the evidence, it shows that when these things are vetted by the ultimate judge, which is the people, they are accepting the evidence as presented.

NEARY: What about the whole question…

Mr. MILLER: They're not accepting those defenses, which run from entrapment to misconduct by foreign officials to a lot of the other things that have been put up here.

NEARY: I was going to ask you about the whole question of entrapment, particularly in the case of - in the Miami case.

Mr. MILLER: I would say that a terrorism case, separate from a drug case, separate from a white collar crime case - a terrorism case is the most difficult case for someone to prove entrapment. Because basically, when you get into the discussion about will you strap on a bomb, will you blow up a subway car full of people, as we saw in the Brooklyn case where entrapment was the argued defense - there's really only two ways to go.

NEARY: Mr. Miller, hold onto that thought. We're going to come back to you. We're continuing this discussion after the break.

You're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington. Here are some of today's NPR News headlines.

The United States has blamed Syria and Iran for the kidnapping of two Israeli soldiers by Hezbollah militants, and an eruption of violence along the southern border of Lebanon. The White House called today for the immediate and unconditional release of the two soldiers.

And Secretary of State Condoleezza Rice said today that Iran has given a disappointing and incomplete response to an international deal to end suspicious nuclear activities. Rice said that world powers may have no choice but to bring a round before the U.N. Security Council.

Details are coming up on ALL THINGS CONSIDERED from NPR News.

Tomorrow on TALK OF THE NATION, another side of the immigration debate: guest worker programs and how they work. And in a few minutes, our weekly fix of the political junkie. If you have questions about Ralph Reed's race in Georgia, the push to increase the minimum wage or other political news, you can e-mail us now at

Right now, preemptive arrests. Our guests are John Miller, assistant director in the Office of Public Affairs at the FBI, Bruce Ackerman, sterling professor of law and political science at Yale University, and defense attorney John Zwerling.

John Miller is on the line with us from his office at the FBI. And I want to get back to this question of what is meant by preemptive arrests. You were questioning…

Mr. MILLER: No, let's - Lynn, if you don't mind…

NEARY: But what I want to get at with…

Mr. MILLER: Your last question, which is about entrapment, which is where we were in the middle of when we went to a commercial break…

NEARY: Okay. That's right. Go ahead.

Mr. MILLER: Because I think you asked it and it deserves an answer.

NEARY: Okay. Go ahead. You're right.

Mr. MILLER: I think that a terrorism case is the most difficult one to really launch an entrapment defense, because when you ask somebody if they're willing to blow up a train car or strap on a suicide bomb or kill massive numbers of people, and they start to engage in those discussions over weeks and months and to go forward with that, they have two choices. They can say no and walk away, or they can do the right thing or call the police or the FBI.

In the cases where they've launched that defense, they did neither. They went along and they kept discussing how many people they could kill with what device and then they later tried the defense that, hey it wasn't my idea, it was the informants. When in fact, in each of these cases they discussion always started with the defendant.

NEARY: Yeah. All right. Let me go back now, though, to that question of preemptive arrest, because you were asking where that term had come from. And what I want to ask about the whole idea is when do you decide to make an arrest? When does a law enforcement official decide that a line has been crossed where there is enough activity is going on? That you're seeing enough e-mail going back and forth on these Web sites that you monitor, and you decide we can go in at this point. It does rise to the level of a serious threat. It does rise to the level of a crime. What is that moment? What is that line in your mind?

Mr. MILLER: Well, there is none, because that would presuppose that every case is the same. But in brief, if you take the Miami case, here was a case where they initiated the discussions of trying to make contact with al-Qaida and then trying to wage war against the United States, which sounds hyperbolic, but that's the same thing we thought of bin Laden when he declared war on the United States before he launched any of his attacks.

I think if you had looked at John Mohammed and Lee Boyd Malvo - the two Washington snipers - when they said they were going to wage their war on the United States, people would've wrote that off as silly up until they terrorized an entire region of our country - indeed the capital - for three and a half weeks.

So in the Miami case, they initiated the discussions. They wanted to attack the Sears Tower. And we got in between and - Lynn, this is really the point. Our mission - certainly in the post-9/11 world but even before that - is to find the people who are willing and committed to committing acts of violence and somehow - either using intelligence or criminal law, or undercover agents or informants to get in between them and the completion of that act - that's what you saw happen in Miami. That's what you saw happen in this tunnel plot. And hopefully, that's what you'll continue to see happen. Because the alternative is that one of these things goes forward.

After September 11th, the FBI, the CIA, and the government at large was soundly criticized - and rightly so - for not having done every single possible thing in its power, and coordinated those efforts in such a way that those attacks could have been prevented.

In a way, Lynn, we've become - in danger of becoming victims of our own success, because as 9/11 grows smaller in the rearview mirror of history, and we don't have an attack on U.S. soil, the same questions are resonating inside out - well, why aren't you doing everything within your power? And are we overreaching here? And we have to strike a balance, and the balance is, we've got to protect peoples' rights and we've got to prevent another attack. And we can't fail on either.

NEARY: All right. John Miller, thanks so much for joining us. John Miller is assistant director of the Office of Public Affairs for the FBI.

And defense attorney John Zwerling, I'm going to give you a chance just to respond to what Mr. Miller had to say before we have to go.

Mr. ZWERLING: Well one, he obviously has stripped the people in Miami of the presumption of innocence in his comments.

But, I'm more concerned with how he would defend the director of the Washington field office going to a meeting with the Muslim community in Falls Church, Virginia, and assuring them that the FBI did not believe Abu Ali needed to be incarcerated or detained in any way. Nine months after he and his people had completely reviewed and analyzed and then spoken to Abu Ali and seen his confession.

Either they went and intentionally lied to this community - which is counterproductive to what we need to do in order to enlist them in the war on terrorism - or he was, he and the professionals were disregarded, their opinion was disregarded about what this confession was worth by the politicians who wanted to make this prosecution go forward, because his parents had won a lawsuit and they were going to have to bring him back to this country.

And the jury didn't hear that information. The court kept it out. So, it's not like the juries hear everything. It's, you know, so the fact that he got convicted doesn't necessarily mean everything you would read into it otherwise.

NEARY: All right. Okay. Thanks so much for joining us today, Mr. Zwerling.

Mr. ZWERLING: You're welcome.

NEARY: Defense attorney John Zwerling. We were also joined by Professor Bruce Ackerman, Sterling Professor of Law and Political Science at Yale University.

Copyright © 2006 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.