09/13/2007 02:23 pm ET | Updated May 25, 2011

Why the Left is Losing the Political Debate about Terrorism

While the left is winning the debate on the Iraq war (it's hard not to), the conduct of that other war--on terrorism--still seems popular with a large swath of the public. I fear that over the last six years we've been consistently underplaying our hand in the debate about terrorism and domestic security.

During a little break between deadlines for briefs in our Guantánamo and wiretapping cases, I've spent much of this week reading a fantastic new book that sums up much of what the authors and their colleagues at the Center for Constitutional Rights (including myself) have been saying for the last six years: that when we frame the debate as being about striking the wrong exchange between security and liberty, we lose the debate every time because much of the public is willing to trade an infinite quantity of rights for a minuscule gain in security - particularly when the rights in question belong to noncitizens, people in faraway countries, and people who don't look like us.

In the book, Less Safe, Less Free, CCR board members (and law professors) David Cole and Jules Lobel argue that as we've tossed aside traditional notions of legal rights and time-tested law enforcement models, we've become less secure as a result--and not just because our strategies breed resentment against us overseas, but more simply because they just don't work as counterterrorism measures.

The book is short enough to read in a few days (here's a summary with excerpts from The Nation), but it really is an A-to-Z account of all the ways the new "preventative paradigm" has failed us. The term refers to tactics supposedly aimed at preempting future attacks rather than punishing criminals for their past acts. One of the most significant is the notion of using "preventative detention" - arresting people before we have any evidence that they are actually even planning a specific crime, simply because they fit some profile or because of their association with suspect groups.

Since 9/11 this has manifested itself in the huge sweeps carried out at home (for the "special interest" immigration detainees) and abroad (for example, the bounty-inspired sweeps in Afghanistan that sent so many innocents to Guantanamo). As a strategy for catching terrorists, they failed miserably. And they're inefficient because they direct resources to chase after people you have no rational reason to suspect. They end up wasting huge amounts of law enforcement investigative resources.

Cole and Lobel point out that the Bush/Ashcroft strategy of arresting suspects as early as possible - of "not wait[ing] for threats to fully materialize" as the President put it - violates every traditional notion of how best to disrupt criminal conspiracies. The standard law enforcement playbook on investigating big criminal conspiracies says that you treat the first suspect you find as if he were the tip of an iceberg, and, instead of arresting him immediately (and holding a news conference two hours later, as Ashcroft was wont to), you direct more investigative resources at him--tail him, wiretap his phone, infiltrate the criminal enterprise, all in the hope that he'll lead you to the rest of the conspirators.

On the battlefield you arrest the enemy at first sight. But that "war" mentality doesn't work well at the painstaking process of investigating terrorist conspiracies--it causes you to lose the sunken part of the iceberg. Arresting suspects too early "loses the ability to gather intelligence about the involvement of others in the plot, or indeed whether the plot was anything more than a pipe dream."

Keep in mind that every local cop--from rural Iowa to inner city Boston--knows why this is such a bad idea, because they are all involved with trying to break up drug conspiracies. As Cole and Lobel point out: "When government officials are investigating an ongoing criminal conspiracy, the last thing they generally want to do is lock up the subjects under investigation. As long as the suspects remain free, they offer the potential for further intelligence gathering."

Compare the British response to the airline liquid-bomb plots and the German response to homegrown bombmakers. In both cases law enforcement waited as long as they felt was safe before striking; then, when they moved in for arrests, they were able to bring in a wide swath of coconspirators. (It's interesting to compare the account our own government has given of these same arrests. Our intelligence officials initially tried to create the impression that the British arrests were timed right after American wiretap intercepts, the implication being that it was NSA Program surveillance at work. In fact, hundreds of lawful warrants under the FISA statute were used, and they came at the tail end of a long, careful investigation. More recently, DNI McConnell was forced to retract his claim that the horrendous new FISA amendments (rubberstamped a month ago by Congressional democrats) were used to nail the German suspects - when in fact our intercepts predated the new law by roughly a year and the Germans presumably could have gotten them on their own.)

The bottom line? The preventative paradigm is less effective than the traditional means of uncovering and disabling criminal conspiracies:

"One of the frequent arguments made in favor of the preventative paradigm is that traditional law enforcement tactics are insufficient to prevent terrorist attacks, precisely because they are backwards-looking. It has become accepted dogma that the FBI, for example, is ineffective at preventing terrorism because it is too focused on traditional law enforcement, solving yesterday's crime rather than preventing tomorrow's terrorist attack. This claim, however, rests on a caricature of traditional law enforcement tools. In fact, police, prosecutors, and the FBI routinely employ traditional tools to prevent future crimes."

Cole and Lobel go on to detail an array of examples from the UK where traditional tools (surveillance and informants) and traditional charges (for conspiracy and attempt) were used to bust up major terrorist plots. And they point out (in one of many awful ironies detailed in the book) that even J. Edgar Hoover was opposed to sweeping up Japanese-Americans in WWII, feeling it "unwise and unnecessary because the FBI had the capacity to place suspected saboteurs under surveillance and charge them with a crime if it was determined that they were truly dangerous."

Because preventative detention tends to rely on profiling by race, ethnicity, and religion, it also ends up costing us the trust of immigrant and minority communities - communities that law enforcement traditionally relies on as its "eyes and ears on the street" (as our dear departed urbanist Jane Jacobs would have put it). When law enforcement is perceived as "hav[ing] selectively directed a zero-tolerance policy towards their communities," as Ashcroft essentially announced after 9/11 with respect to undocumented aliens, we may expect that law enforcement efforts will be hurt in the long run--although hurt in a gradual, subtle way unlikely to find it's way into the headlines. (Cole and Lobel nicely connect this phenomenon to its larger-scale equivalent: the loss of legitimacy that causes foreign nations to hesitate in cooperating with us in global multilateral efforts against terrorism.)

The rest of this administration's "innovative" strategies are also subject to the criticism that they simply don't work. Take the notion that the investigative process--detentions, interrogations, etc.--all must be kept out of the reach of the judicial process in order to keep secrets out of the hands of the terrorists. There's a sound-bite appeal to this argument, but it ignores the role of judges in the process as agents of accountability and oversight. Arguing judicial oversight is a hindrance to law enforcement is remarkably shortsighted. It would be a bit like me arguing that all my supervisors should be fired because I would be so much more efficient at work if I didn't have to spend time reporting to them and worrying that they were looking over my shoulder. As I've argued in detail on this site in the wiretapping context, keeping judges in the process ensures that the system works more efficiently and effectively.

Of course, the secrecy that comes with shutting out judicial review helps keep abuses covered up (in part by keeping out lawyers), but it also ultimately keeps the voters in the dark about the quality of the government's law enforcement efforts. Whereas standing up for separation of powers - in the form of judicial and congressional oversight - ensures that the voters are skeptical and armed with information. In the long run, a skeptical voter is more likely to demand counterterrorism strategies that will actually keep them safe.

In some ways it's unsurprising that we've gone down this road for six years, for "[h]istory demonstrates that executive officials of all partisan stripes tend to favor a preventative paradigm in times of national crisis" even though the historical record shows it has rarely been effective. It's normal human psychology - and every politician's psyche, right or left - to want to take the most dramatic, coercive steps in response to a crisis. It's also normal organizational behavior: I've blogged on this site about how bureaucratic pressures on law enforcement and intelligence gathering agencies during crises that catch them off guard will always create pressure to sweep in huge numbers of detainees and apply coercive interrogation to them. The end result of all of this is that "the slow and painstaking work of assessing vulnerabilities, collecting and analyzing information, shoring up our defenses, [and] building coalitions" is all neglected. Even the similar recommendations of the 9/11 Commission haven't been enough to get our government to change course. One of the most alarming passages in the book, around page 210, details the grades the 9/11 commission gave the administration, as of December 2005, in its threat prevention assessment--"five Fs, twelve Ds, eight Cs, several incompletes, and only one A-"--and the neglect of efforts to secure Soviet nuclear materials. (Correspondingly, one of the nice touches in the book is a series of sections on how grievous post-9/11 missteps (preventative detentions, coercive interrogation, warrantless surveillance) could have played out in a more productive fashion.)

Viewed from the standpoint of the political arena, the book lays out an array of riches to work with in terms of proving that we are shooting ourselves in the foot with these policies in every conceivable way--that every one of them makes us less safe as well as less free. When, one wonders, will Democratic candidates stop being timid and acknowledge what every expert has been saying for years--that what this administration has been doing in the name of its "war" on terror doesn't work? Will the leading lights in the party assume the mantle of leadership and start to change the lines of the debate about security and freedom along these lines? Will Hillary Clinton and others ever stop mimicking the Romney-Giuliani line about "going on the offensive," taking the battle to the terrorists' home turf, and instead realize that "in fighting terrorism, the best defense is not a good offense but a smarter defense"? Or will the grim speculation made in the introduction to Cole and Lobel's book--that "if a Democratic president had been in office on September 11, 2001, many of the abuses we recount here would likely have happened anyway"--be proved correct when the next attack comes with a Democrat in the White House?

--September 13, 2007