Orin Kerr's post "Can judges identify terrorists?" is one of those very many that treat the terrorist threat as something new, something that might undo centuries of legal precedent in the building of a modern, law-based society.

I think that this is misguided, and very dangerous.

First of all, history is full of violent, often deranged people that have tried to cause others harm. They have joined rebellions, armies and groups of disgruntled anarchists, communists or right-wing paramilitaries for hundreds of years, or ran amok by themselves. The US army tries its best to weed these kind of nuts out, yet "bad apples" (like Timothy McVeigh) can and do get through even the most rigorous screening. So having suicidal, murderous maniacs bent on major mayhem on the loose in society is nothing new.

So did small groups or disgruntled loners all of a sudden become more dangerous? Hell no. Chemical warfare has progressed, but WWII-vintage sarin still can kill and cause major mayhem, as the attack in 1995 in Japan showed. More modern substances such as difficult to create, almost-weaponized anthrax killed less than half as many in the US. Nuclear and biological weapons have been a potential weapon for small groups of well-funded psychopaths for decades. While the disintegration of the USSR had great potential to unleash this particular genie, the current re-emergence of Russia as a great power is rapidly reducing this danger. At the same time, the recent firing of hundreds of US weapons engineers with highly specialized knowledge and few alternative skills may be the single most dangerous event of the early twenty-first century, but that is a problem for the rather distant future, and it is in any case more effectively dealt with by other means (hire them into think thanks, for instance).

In all, there is no reason to assume that terrorism has become more dangerous than it has been for the last five decades. Everything Al-Qaeda has "achieved" was done with basic tools: high explosives, kalashnikovs, grenade launchers and even commercial airplanes. There is nothing new in their arsenal.

And certainly there is no reason to assume that the threat would be coming from a muslim terrorist group rather than any other. Let's not forget that a white, christian terrorist - an army veteran, to boot - perpetrated the worst terrorist attack on US soil before 2001. Using fertilizers and racing fuel...

So why would we decide that, after all these years of condemning them, Cuba, China and Zimbabwe were right when they locked up people without due process? Weren't they perhaps really dangerous people, at least more dangerous than some of those the US holds in Guantanamo? Were dictatorships all over the world really justified when they said that "things were different here" and the normal rules of law did not apply?

Abandoning the rule of law is not a slippery slope, not on a worldwide scale. It is a chasm. Once the US stopped feeling ashamed about breaking its own laws (it always has, of course), the causes of personal freedom and the rule of law lost a lot of credibility. Perhaps Orin Kerr's arguments are simply a way to make the best of a disastrous turn of events, but I just can't see it that way yet. Arguing that "it's different now" hollows out what the West has achieved in the past few centuries. It puts the torch of freedom, rights and justice back in the hands of those countries that continue to believe that you may need to trade a bit of safety in order to maintain a society worth fighting for. I think Rumsfeld called these countries "Old Europe". Maybe Lady Liberty needs to go back where she came from.