Balkinization  

Saturday, September 15, 2007

Does the Paradigm of Prevention Make Sense?

Marty Lederman

The U.S. armed conflict against Al Qaeda has involved some traditional military action, such as the fighting in Afghanistan; but the Bush Administration’s primary strategy has been what AG Ashcroft dubbed “the paradigm of prevention”—a largely intelligence-based policy designed not to win battles, but to stop the enemy from "fighting” at all (i.e., from engaging in future acts of terrorism). The Administration’s application of the prevention paradigm has been severely criticized, including on this blog, principally on grounds that the Administration has circumvented statutory, treaty, and constitutional constraints in areas such as detention, interrogation and surveillance.

There has been a tendency in this debate to assume that strict adherence to rule-of-law norms must be balanced against interests in security against terrorism. Thus the arguments have often focused on the proper balance between liberty and security, and on the question of who should calibrate that balance.

In an important new book, however—Less Safe, Less Free: Why America Is Losing the War on Terror, and a summary article in The Nation, my colleague David Cole and Jules Lobel challenge the basic understanding: They argue that the paradigm of prevention, at least as administered over the past few years, has not only undermined fundamental laws and principles, but has also failed as a security matter, leaving us even less safe. Based upon a comprehensive review of the record, Cole and Lobel describe how the Bush strategy has netted few actual terrorists, foiled few actual terrorist plots, seriously limited our long-term security options, hampered our ability to gain the support of others, and fueled terrorist recruitment. (Of course, some of this will be sharply contested—particularly the claims about preventing acts of terror—but Cole and Lobel explain why the question is not nearly as clear-cut as it is often assumed to be.) They also argue that the problem goes beyond executive aggrandizement for its own sake, and that the “preventive paradigm” as the Bush Administration has defined it is in fact at the root of the problems. Therefore, they suggest, those problems are not likely to end with the departure of President Bush and Vice President Cheney, because the powerful push to prevent another attack can drive any politician to adopt emergency measures that may ultimately prove dangerous to our democracy and our security. (This theme is similar to one pressed in Jack Goldsmith’s new book, although of course Jack’s prescriptions are quite different in several respects.)

Here’s David’s description of the book’s three parts:
The first part, “Less Free,” catalogues the ways in which the “preventive paradigm” puts pressure on the rule of law—in law enforcement, intelligence, and war making. We argue that when the state uses harsh coercive measures (such as detention, interrogation, and war) not retrospectively, to hold people or countries responsible for proven wrongdoing, but prospectively, to prevent people or states from doing something wrong in the future, the rule of law is often the loser. Instead of fair trials, transparent procedures, equal application of the laws, and checks and balances, you get summary procedures, carried out in secret, applied discriminatorily to the most vulnerable, and bereft of the judicial and legislative oversight that is essential to ensuring that the rule of law is in fact implemented. We illustrate these critiques with anecdotes about abuse of power in the war on terror—some familiar, some less so, but cumulatively portraying an administration that appears to treat the rule of law as a tool of the adversary.

Part II, “Less Safe,” is the meat of the book. It examines the record in the war on terror, and finds a colossal failure. We go behind the statistics trumpeted by the Bush administration, and illustrate that they are often misleading. We show, for example, that the targeting of foreign nationals after 9/11 for preventive detention, FBI interviews, and Special Registration, netted not a single convicted terrorist. Moreover, the administration’s claims of success in “terrorism-related” prosecutions are grossly inflated; in fact the administration’s success rate in prosecutions charging terrorist crimes is 29% (compared to 92% in felony prosecutions generally). And we catalog in great detail the many ways that the “preventive war” in Iraq has made us less safe—wasting billions of dollars that could be far better spent, allowing Al Qaeda to reconstitute itself, providing a recruiting tool and a training ground for fundamentalist terrorists, and alienating much of the world.

The third section of the book, “An Alternative Preventive Strategy,” goes beyond assessment and critique to propose an alternative approach—a blueprint for the next administration. We make clear that the problem is not setting a preventive goal in the first place—it is, instead, the sense that that goal justifies the adoption of means that are otherwise illegitimate. We advocate a wide array of sensible preventive measures that are far less controversial than those favored by the administration, and note that many others, including the 9/11 Commission, have recommended the same, such as safeguarding nuclear weapons around the world; protecting vulnerable infrastructure; strengthening first responder capabilities; better screening of cargo; better information sharing; and the like. We also advocate multilateral strategies designed to use international law—which after all, treats terrorism as a crime against humanity—to our advantage. We advocate a foreign policy that deemphasizes US military presence around the world—something that often motivates terrorists to target the US—and that instead engages with the world more constructively, through foreign aid and the like. And finally, we argue that when coercive preventive measures are necessary, as we concede they sometimes are, we must be willing to abide by the rule of law in employing them. In short, we suggest that we would actually be safer, as well as more true to our principles, if we sought to prevent terror through, rather than in spite of, the rule of law.
The book is a terrific read and provides an important and often-obscured perspective, whether or not you might agree with its conclusions and prescriptions. When it rains, it pours: While you're over at Amazon or your local book store, you've now got an embarrassment of riches on the subjects of national security, executive power, and the Constitution: In addition to Less Safe, Less Free, not to mention Charlie Savage's and Jack Goldsmith's recent books, you might also want to check out Jamie Baker's recent volume In the Common Defense, which is a careful and thorough account of the challenges of administering national security law within the Executive branch. I recommend all of them.

Comments:

It sounds like the authors don't challenge a preventive strategy; they just would emphasize different tactics. The problem is, however, that the threat is extremely diffuse, and the range of potential targets and methods of attack are extremely broad. Most types of passive defense (cargo screening, target hardening) therefore seem likely to result in enormous expense with very little assured benefit.

The idea of securing nuclear weapons sounds good, and certainly should be pursued as long as the cost is reasonable. But what is the use of securing existing nuclear weapons if our enemies (eg Iran) are free to manufacture new ones. This is not to say that attacking Iran is a good, or a feasible, idea, just that any strategy of prevention has to consider all of the various threats. It may make sense to lock the back door even if you don't lock the front door, but it makes little sense to build a steel reinforced back door with an expensive alarm system when your front door is missing.

It seems to me that active prevention is the most promising element of our current counter-terrorism. Active prevention consists of gathering intelligence through electronic surveillance, human sources etc. We were able to identify two of the 9/11 hijackers through electronic surveillance and, with better information-sharing and agency coordination, this intelligence could easily have been used to thwart the attack. Active prevention also includes using intelligence to attack terrorist sanctuaries,and capture or kill suspected terrorists in coordination with foreign intelligence and law enforcement services.

What is missing from our counter-terrorism strategy is a concept of deterrence. It seems to be assumed that deterrence won't work against terrorists. I am not sure that this is right and, even if it is, it doesn't follow that deterrence won't work against those who harbor, arm or otherwise enable terrorists.
 

The first part, “Less Free,” catalogues the ways in which the “preventive paradigm” puts pressure on the rule of law—in law enforcement, intelligence, and war making.

The only folks who are "less free" since we went to war after 9/11 are the tens of thousands of al Qaeda dead and captured. US citizens outside the Iraq and Afghanistan war zones have been free of any significant attack since we started waging offensive war.

What the authors are complaining about is that we are no longer treating this as a criminal justice matter, an approach which resulted in enemy attack after enemy attack during the 90s and thousands of our citizens murdered here and abroad.

When we treated al Qaeda's war against the United States as an episode of Law and Order rather than a war, al Qaeda was free to attack us at will and our People were not free of attacks.

Part II, “Less Safe,” is the meat of the book. It examines the record in the war on terror, and finds a colossal failure. We go behind the statistics trumpeted by the Bush administration, and illustrate that they are often misleading.

I could have stopped with the obvious falsehood that America has been "less safe" since we stopped treating al Qaeda's war against the United States as a criminal justice matter and waged war in return, but the primary argument in this section is too absurd to pass up.

We show, for example, that the targeting of foreign nationals after 9/11 for preventive detention, FBI interviews, and Special Registration, netted not a single convicted terrorist.

Hello? We are at war.

The metric in war is how many of the enemy you kill and capture, not how many you convict as civilian criminals.

In the halcyon days when we tried the enemy as civilian defendants after they had murdered our citizens, the Clinton Administration convicted a handful of terrorists.

Since we (or most of us) went to war after 9/11, the US has sent tens of thousands of the enemy to meet Allah's judgment, detained hundreds more and reduced bin Laden to making infomercials rambling through DNC talking points from a mud hut in Pakistan.

The metrics speak for themselves and illustrate why you wage war with soldiers and not lawyers like Messrs. Cole and Lobel. As Mr. Goldsmith pointed out, war has become far too over lawyered and this book is a perfect example of that malady at work.

The third section of the book, “An Alternative Preventive Strategy,” goes beyond assessment and critique to propose an alternative approach... —a blueprint for the next administration. We make clear that the problem is not setting a preventive goal in the first place—it is, instead, the sense that that goal justifies the adoption of means that are otherwise illegitimate. We advocate a wide array of sensible preventive measures that are far less controversial than those favored by the administration, and note that many others, including the 9/11 Commission, have recommended the same, such as safeguarding nuclear weapons around the world; protecting vulnerable infrastructure; strengthening first responder capabilities; better screening of cargo; better information sharing; and the like.

This is all being done.

We also advocate multilateral strategies designed to use international law—which after all, treats terrorism as a crime against humanity—to our advantage.

wow.

After we surrender Iraq to al Qaeda as the Nation proposes, are we going to have the international criminal court issue indictments for the arrest of those al Qaeda in the Iraq sanctuary and then wait for the enemy to turn themselves in? After all, that has worked so well in Serbia...

We advocate a foreign policy that deemphasizes US military presence around the world—something that often motivates terrorists to target the US—and that instead engages with the world more constructively, through foreign aid and the like.

The terrorists who have joined the Islamic fascist movement's war against the United States are usually middle class young men from the Gulf States. Are we going to send "foreign aid and the like" to the rich Gulf States who are already swimming in our money? To accomplish what exactly?

The book is a terrific read and provides an important and often-obscured perspective, whether or not you might agree with its conclusions and prescriptions.

The book definitely speaks for itself.

If any of you are at all serious about learning about actual counter terrorism from the professionals, go start at the Counter Terrorism Blog for an entre.

From a military view point from the ground, General Petreus literally wrote the book on
Counterinsurgency for the Army and is putting the theory into real life practice.

Finally, here is a nice thumbnail sketch of the past and future counter terror efforts against al Qaeda by Bruce Hoffman of RAND entitled Does Our Counter-Terrorism Strategy Match the Threat?

I do not and you may not agree with everything these experts say, but you will learn how the professionals are approaching the problem without all the ideological ax grinding.
 

mls--
I think the point of this post was to challenge precisely what I took to be your "deterrence" argument. But I may be mistaken, as it's not clear to me what you mean by "active prevention". Deterrence, at least to me, doesn't mean preventative war. Even if it means that someone who doesn't like us has nuclear weapons. If I understand your argument correctly, it's precisely that premise that the authors here are arguing against.

One minor point: suggesting that the partial data existing before 9/11 "could easily" have been used to thwart that plot is speculation and as such doesn't advance your argument.
 

"Bart" DePalma says:

I could have stopped with the obvious falsehood that America has been "less safe" since we stopped treating al Qaeda's war against the United States as a criminal justice matter and waged war in return, but the primary argument in this section is too absurd to pass up.

...

Hello? We are at war.

The metric in war is how many of the enemy you kill and capture, not how many you convict as civilian criminals.


Another book for "Bart" to read, one that is somewhat sympathetic to the view that military approaches can accomplish certain tasks, but quite sceptical of the tasks that the Dubya maladministration has set up for it: Thomas Ricks's "Fiasco". In it, Ricks details the philosophy of Gen. Petraeus (amongst others) WRT the objectives of a "war", and that is not to go kill baddies. That, according to one of the (supposed) premier military minds on counter-terrorism and counter-insurgency tactics, is perhaps one of the worst things you can do. OTOH, "Bart"'s sentiments here find a place in Ricks's accounts of other commanders in Iraq. "Bart" really needs to read it.

Cheers,
 

arne:

The attorney authors were suggesting that the proper metric for taking the bad guys out of action in a war was the number of criminal convictions in a civilian court. In fact, the metric for removing the bad guys from the battlefield in a war is the number of KIA and captured.

You are correct that there are multiple other metrics for measuring the progress of a war, but that is not what the authors were arguing. Indeed, they appear to be under the misapprehension that we are not at war.
 

"Bart" DePalma:

You are correct that there are multiple other metrics for measuring the progress of a war, but that is not what the authors were arguing. Indeed, they appear to be under the misapprehension that we are not at war.

You mistake the "progress of a war" with the objective of a war. Read Ricks's book, and it explains that "progress" can only really be measured against the objectives of the war; once you lose sight of that fact, you're on the wrong track and not likely you achieve the objectives you purportedly seek. If you don't believe Ricks, he references both Clausewitz and Galuda as well as Petraeus.

Cheers,
 

P.S.:

On a more general level, war is not even an "objective", but just one of several (if not many) means of obtaining one's objective. Deciding to go to war (or to wage war) requires both an eye on the objectives sought, the usefulness (and probability) of war in obtaining those ends, along with evaluation of the costs (both material and moral) of the various options.

As Ricks explains, you don't have to fight; you don't have to shoot back even if provoked or attacked. And sometimes that's the wisest thing, rather than letting your rivals or enemies dictate your actions by rote response. That was one of the failings detailed by Ricks in Iraq (and it may have placed any valid objectives their completely out of the reach of the U.S.).

Cheers,
 

arne:

We are agreeing far too much today. You will ruin my reputation before too long.

You are absolutely correct that progress in a war can only be measured against achieving the objectives of the war. One of the objectives of war is to kill or capture the enemy.

I also largely agree with Ricks' assessment of the early stages of the Iraq War. The Iraq War is really two wars, the wildly successful conventional war which quickly achieved the pre war goals and then a subsequent terror war which was pre-planned by Hussein and for which our military was completely unprepared.

However, Ricks' coverage stopped in early 2006 and missed the development of the Petreus counter insurgency doctrine. The military started implementing this doctrine in scattered locations in Anbar during 2005, backed off to their bases in 2006 for the election (an awful decision which allowed the enemy to launch their version of a Tet Offensive to influence our elections), then implemented the doctrine nationwide in 2007.
 

"Bart" DePalma:

You are absolutely correct that progress in a war can only be measured against achieving the objectives of the war....

OK.... maybe some progress.

... One of the objectives of war is to kill or capture the enemy.

Oh. I was mistaken. Sadly, no. "Bart" still hasn't twigged to the notion that wars are conducted in
pursuit of other objectives. Killing people, satisfying as it may be to some people, is not a legitimate end. and that's the last time I'll reiterate that here. Go read the freakin' book, "Bart".

Cheers,
 

"Bart" DePalma:

The Iraq War is really two wars, the wildly successful conventional war which quickly achieved the pre war goals ...

If so, then why didn't we leave?!?!?

... and then a subsequent terror war which was pre-planned by Hussein and for which our military was completely unprepared.

I'd note that I wasn't "unprepared". I noted in the earliest days of the invasion that there would be more dead in the "occupation" (Phase IV) than in the "war". I misestimated; I didn't realise how horrendously lopsided the numbers would be. But the terror campaign and civil strife (not to mention just plain lawlessness) were not all nefarious plots of that Supremely Evil While Malevolently Cunning Saddam. They should have been expected, were expected (by the more perspicacious), and should have been planned for, if we are to believe the purported rationales for the war (neglecting the flimsy if not outright dishonest WMD claim). Not to have done so is malpractise (if not outright negligent or intentional homicide), for which the perps (and that most definitely includes Dubya) should have been sacked.

However, Ricks' coverage stopped in early 2006 and missed the development of the Petreus counter insurgency doctrine. The military started implementing this doctrine in scattered locations in Anbar during 2005, backed off to their bases in 2006 for the election (an awful decision which allowed the enemy to launch their version of a Tet Offensive to influence our elections), then implemented the doctrine nationwide in 2007.

Heh. All the bad things are the enemy's fault (for being just too damn devious), and all the "successes" are the brilliance of the current champeens. "Bart" needs to take a look at all the brilliant people Dubya's had working for him. Hell, Bremer, Tenet and Franks all got Preznitential Medals of Freedom for their stellar performance (and hell will surely freeze over before "Bart" will admit the absolute stoopidity of that ... except as done for purely partisan political purposes). Maybe Petraeus has been promised his. Petraeus was better than Franks, Odierno, Mattis, and Sanchez, but that's damning with faint praise. "You're doing a hack of a job, Petraeus...."

Cheers,
 

However, Ricks' coverage stopped in early 2006....

The latest edition of his book adds a postscript in April 2007, and notes that nothing much has changed (which is pretty much the state of affairs right now as well).

Cheers,
 

Lets get this straight, I am an Australian Army Officer with a wife from an Arabic country and with two teenage children.
The paradigm of prevention as currently practised by the US and Australian governments is in my oppinion as much of a threat to my chidrens future as the terrorists. My wife is beside herself that I allow one of my sons both of whom have Arabic first names to learn to fly (fearing that he will be reported to security) and her nephews (christian) can never pass through a regional airport without being searched. Minor matters sure but you can only treat someone like an enemy for so long before they start to think that maybe you are their enemy.
Personally I think that there is a healthy dose of racism behind our 'War on terror' people think that they will never be the target of our draconian laws because they are white and the laws will be only used against 'foreigners'.
 

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