At least one American official said the members of the group had never even met one another. "There was a lot of discussion, there was planning being done; but there was no indication that there was any movement toward these facilities," Police Commissioner Raymond W. Kelly said yesterday. "There is no indication that materials were secured or that specific reconnaissance was done." ...Officials said Mr. Hammoud would likely be tried in Lebanon and that no charges were pending against him in the United States.

What gives? One issue for discussion is whether the FBI and local law enforcement should be arresting people pre-emptively for intended acts rather than waiting until they have committed an overt act in furtherance of their illegal objective. We went through this umpteen times with the Patriot Act and "the wall" between intelligence agencies and law enforcement, which for good reason in my view, prevented the two from sharing information.

Ashcroft insisted on tearing down the wall. As a result, intelligence agencies are passing information -- internet chatter, really -- onto the FBI and law enforcement who are acting outside their traditional functions by arresting people before their acts amount to a crime.

I can already hear your arguments: Should they wait until they have blown up the Sears Tower or Holland Tunnel to act? Of course not. But, there's a world in between. That world is called an "overt act" in furtherance of the conspiracy.

The crime at issue is conspiring to provide material support to terrorists. Or conspiracy to blow up a building or a tunnel through the use of explosives or weapons of mass destruction.

Conspiracy is an agreement to commit an unlawful act. It doesn't matter if the unlawful act is committed or not. All that is required is proof of the agreement and (except for federal drug crimes) an overt act in support of the illegal agreement.

In the Miami case: I don't see how swearing allegiance to al Qaeda is an overt act, and allegations of driving someone to a meeting or to buy a battery for camera to take a picture of a building is a stretch. So is asking for combat boots. A good take on the Miami case is here.

In the Holland Tunnel case, the information is more limited, but I don't see an overt act there either. Why couldn't they wait until the alleged perpetrators had actually done something in furtherance of their objective, like shop for explosives, request money -- even come to the U.S. for a meeting? FBI Agent Mershon said,

"They were about to go to a phase where they would attempt to surveil targets, establish a regimen of attack and acquire the resources necessary to effectuate the attacks, and at that point I think it's entirely appropriate to take it down."

They should have waited to arrest until they did made an actual effort to do one of those things. Otherwise they are charging people for just talking.

The cynical part of me believes that the Holland Tunnel bust is related to the Administration's planned defense of its warrantless NSA program. It's one way of telling the American people the government must have access to all of our emails, phone records and internet usage to catch terrorists.

Monitoring of Internet chat rooms used by Islamic extremists led to the arrest of Mr. Hammoud, according to Lebanese authorities. At least one American official said the members of the group had never even met one another.

For more reading on why we need the wall, check out the Rockefeller Report on the Church Commission, particularly the findings and recommendations beginning here. (a pdf version is here.)