Jeb Bush, responding to the horrific terrorist attacks and mass killings in Paris on Friday, expressed the view that this was “not a law enforcement operation,” but rather should be treated with the tools of war. On balance, I think that is quite right. Which is to say, it is mostly correct but perhaps just incomplete. I would not underestimate the role that federal criminal law could play in the fight against ISIL. War powers and criminal prosecution need not be mutually exclusive in this area, even if war power dominates.
The view that Governor Bush espouses, of course, is the view that prevailed among conservatives and foreign policy hawks after September 11, as well. It was among the rationales for indefinite detention of enemy combatants and the use of military tribunals for terrorists. “War, not crime.” “No Miranda rights for terrorists.” These were among the slogans. But it is also important to note that while a military response to ISIL, and to terror groups more broadly, ought to be our chief method for waging this fight, there will still be some law enforcement component.
Indeed, there already has been – a quick peek at the Justice Department’s website shows a long list of Americans who have aided ISIL or other groups and been criminally prosecuted for, among other things, providing material support for terrorism. It is also worth remembering that even the George W. Bush Administration relied on criminal law enforcement at times during the post-September 11 period. Recall that John Walker Lindh was not held indefinitely as an enemy combatant; he was indicted and prosecuted in a federal court, and is now serving a 20-year sentence in federal prison. Adam Gadhan, mouthpiece for al-Qaeda, was indicted for the crime of treason in federal court in 2006 (though he was never captured at the time, and later killed in a drone strike).
So it is right that we focus on military strategies with respect to ISIL. But where ISIL’s supporters and accomplices are American citizens, particularly those who remain here on American soil, it is most likely that they will be arrested here by federal authorities, charged with federal crimes, and subjected to federal prison terms.
That said, it is my hope that our law enforcement community is leaving no stone unturned in finding Americans who have supported, conspired with, or aided ISIL. Although I need to do a bit more research on how we can do it, for now I am persuaded that anyone who is part of the ISIL conspiracy should be charged with any applicable federal crimes related to the Paris attacks. For those under existing indictments for providing material support to ISIL, the Justice Department should examine the possibility of superseding those indictments to add new charges related to the Paris attacks. It is a long-standing rule of federal criminal law that any person who is part of a criminal conspiracy is guilty not just of conspiracy but of any substantive crime that is committed by any other member of the conspiracy, so long as that crime is reasonably foreseeable and within the scope of the conspiracy. See Pinkerton v. United States. That is true even if the person did not know that the subsequent crime was going to be committed.
There are some jurisdictional and definitional hurdles I need to grapple with, but I will continue to examine whether Americans who have joined the ISIL conspiracy are criminally culpable what what happened in Paris yesterday. If they are, we should pursue them relentlessly, using our federal criminal law. As for ISIL itself, it’s past time for us to suit up and play to win.