Federal prosecutors have until 5 p.m. today to confirm whether or not they are appealing an order that granted bond to the nine Hutaree militia defendants. The appeal would force the government to detail the reasons why the members should remain behind bars pending the government’s appeal of the release of the defendants to home detention with electronic monitoring and other means of control.
On Monday U.S. District Judge Victoria A. Roberts had ordered the release of the defendants after two days of hearings. The defendants are charged with seditious conspiracy and attempted use of weapons of mass destruction and plotting to kill police officers as a way of sparking a general uprising against the U.S. government. In ordering the release of the defendants Judge Roberts expressed serious doubt about the weight of the government’s evidence against the defendants, that seemed to echo some of the criticism of the case to date. That criticism has been, essentially, that the defendants lacked the sophistication, skills, and means necessary to carry out the acts they’ve been charged with. If the defendants are successful they could be fully released pending trial as early as Thursday.
Of course, that raises the question of just when should the government act against these kinds of tips. We see the same questioning underway in the arrest and interrogation of New York Times Square bombing suspect Faisal Shahzad right now. When is too soon and when is too late?
I’d argue it’s a red herring question. We have the answer, and least in a hind-sight kind of way in the Constitution. The government needs probable cause, or in some cases, the lower standard of reasonable suspicion. Volumes of case law detail acts and suspicions that rise to these standards, and government action gets appropriately scrutinized in a court of law. Which, in both the Times Square case and this one, is underway and underscores the need to respect our constitutional protections, not, as Senators McCain and Lieberman have suggested, abandon them.
In the Hutaree militia case this kind of procedural move is nothing to be celebrated or alarmed by. It’s standard review of habeas corpus– can the government ultimately justify the denial of the individual liberty rights of its citizens. We want the government to be forced to meet this standard in all criminal cases. When we create that kind of accountability we demonstrate the very best of our democracy.
photo courtesy of mrbill via Flickr