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.
Posted 3:34 PM by Marty Lederman [link]