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
The global dominionists and their offshoring corporate masters have installed a pipeline from the US Treasury to the chaos of Baghdad, beyond the reach of the US legal system, where they can steal US blind.
Maybe that's really why its called the "Green Zone"?
Everything else is just smoke and mirrors.
the war on terrorism is a construct. it simply didn't exist until the people who wanted it to exist were calling the shots i.e. most everyone who signed the 1997 PNAC letter to bill clinton.
as soon as those people took control again - voila.
war on terror - cold war - cash cow.
fact is, most of this stuff hasn't worked. tortured people lie, electronic intercepts are ineffective against a messenger system and alienating a populace is an ineffective precursor for fighting a counter-insurgency.
when the all classified documents on the war on terrorare declassified 200 years from now, the lesson to be learned will be that "top secret" really equals "keep the citizenry in the dark".
Warning of atrtacks SAT ON THE PRESIDENTS DESK while he was on a month long vacation during Aug. 2001.
The only reason people think the GOP is anything but completely incompetent in the war on terror is becasue the US media refuses to inform people of basic facts without putting some corporate (GOP) spin on things.
Look at the Ficticious 9-11 movie on ABC as good example of the media's agenda
six determined guerillas can keep a brigade busy for years.
Somebody in the comments section said we should leave Iraq so we wouldn't be an "irritant." Yes please, I am sure it's all America's fault. We shouldn't irritate the radical Muslim; maybe they will just leave us alone.
Because I've got news for you. They're killing us every day.
Or are you one of those people who doesn't consider soldiers to be part of the "us" you speak of?
9/11 shook up most people in this country, and the White House and Congress were not exempt. Not long after that we get anthrax attacks, then claims that AQ has or is seeking nukes. The very real concern was to prevent far worse, truly devastating attacks with casualties in the hundreds of thousands. Perhaps none of you understand this kind of reality.
Faced with those kinds of threats, I think the Gov't (including Dems) sought to do what was necessary to secure us all.
Mr. Kadidal's assertion that Americans are willing to give up untold freedoms for a grain of security is BS, pure and simple. What real freedoms have we given up? Please list them, document them, because I don't see it.
No one knew how to respond to this at the time. Overreaction was likely. Underreaction was potentially deadly.
Laying out a policy in the face of such threats is HARD. Playing critic from the comfort of your desk chair is EASY.
No one has been gifted with the "all seeing eye," giver of all truth, teller of the future. Not even the President, (nor bloggers and commenters here, though some write as though they have it. Those who cry "oil" is the reason for Iraq - what is the evidence? Where is the evidence, other than hearsay and suspicion?)
Wrong policies have been made. (Iraq) Others have been pretty good. (Afghanistan, at least originally.)
And policy is changing. Quit living in the past. Even "stay the course George" is learning to be flexible.
Lots of people got it right on the war - but the media sucked in the rest.
George is more "stay the course" than ever. He just promised to leave the war mess for the next president. He want's to "protect our interests" - in other words, OIL. That's a decades long enterprise.
The troop drawdown is a necessity - we're out of troops, some need to come home to rest. There's no choice. And it's just bringing us back down to the original number before the surge. He's trying to appear to be learning something. He's not.
Afghanistan? You've got to be kidding.
Ever war needs a scapecoat, someone to hate and fear, rather it be real or imagined. The Nazis had the jews and the Neocons have muslims.
Keep in mind we gladly locked up the japanese americans during WWII without a bit of guilt.
We are fighting a war on islam, not terror.
They islamic world is sitting on most of the oil and it's easier to murder and steal from beings you project as being less than human and who want to force you to worship as they do or kill you.
The War on Terror is simply a politically correct description for fascist/racist religous right neocon zionist whose ultimate goal is control of middle eastern oil and the destruction of the Al-Aqsa Mosque, the second oldest mosque in Islam which is located in Jerusalem, so King Solomon's temple can be rebuilt there.
Taking over a few oil rich countries is one thing but if that mosque is destroyed WWIII will be guaranteed. Untold millions will die and life on this planet will change as we now know it.
Islam NEEDS to get over its sense of inferiority to the West and win by cultural example--as it did up until the 13th Century. By that time, internecine, yea, tribal, warfare had overtaken it and a succession of invaders seized control.
Culturally, Islamic 'culturalists' fear the influence of the West because they have little beyond a sort of updated feudalism to offer as an alternative!
Here's a typical bigoted and narrow minded Muslim opinion in its crude form.
It's precisely people with these kinds of opinions that we are fighting both ideologically and militarily.
Obviously we will defeat them simply because Islamic ideology and political structures are hopelessly backward and economically feeble. It's too bad that so many people on all sides have to suffer.
To these characters, all that matters is image and publicity. They shun the real work of law enforcement which is quiet, effective, and without a lot of glory.
In their drug wars, they often allow the worst elements to go free in exchange for property and other parting gifts including their freedom.
In this war on terrorism, the politicized leadership is incapable of working quietly and effectively. Unlike the British, for instance, they arrest people for their own petty promotional motives rather than law enforcement reasons.
Iraq occupation should stopped soon to remove an irritant point.
Both Arab states and the next American President should work to achieve Arab?Israeli peace.
In addition, Islamic governments, which control most of media in their countries with an iron fist should be strongly encouraged to stop the virulent propaganda against the West.
It's OK to report the truth and opinion but the avalanche of vile "Anti-Crusader" stuff is truly alarming.
Why is it that U.S. has been successful to prevent terrorist attacks on its soil, while Britain has experienced repeated terrorist acts?
Could it be that in Europe the virulent Islamic anti-American and Anti-Jewish propaganda is widely allowed and at times encouraged?
Fighting terrorists is a job for cops, spies, and diplomats - NOT the military.
It's the framing of the media that is screwing over all of us - the media likes a good war.