Wednesday, September 5, 2007

We Seem to Be Getting Good at This. Why?

I include, merely, for reference, one of the zillion links to the story about the recent German terror plot arrests. Is it my imagination, or is the West getting awfully good at catching terrorists before they do any damage?

It might be time to think a little about what's changed in the last six years. The most obvious thing is that nobody--not the US, not Canada, not even the EU--views this as a law enforcement problem any more. National security is the order of the day. Governments are willing to arrest would-be terrorists on the flimsiest of evidence if only to get them off the street. What happens after that is a matter of national preference, but the emphasis is always on disruption first and the legal process second.

This seems eminently reasonable to me, given what we've been through since 9/11. But let's prise apart some of the behaviors to look for some common characteristics:

  1. Surveillance. Expectations of privacy have dropped precipitously. Whether it's the Bush Administration's intensive use (or abuse--pick your left-right axis) of wiretapping or the British network of pervasive surveillance cameras, things you do and say are being observed. Personally, I think that this loss of privacy is a fair price to pay for security but there's no denying that our society has changed fundamentally and permanently. (This looks like a good place to plug Brin's The Transparent Society, which remains, despite being somewhat dated, an extremely provocative look at how to build a healthy society with minimal privacy.)

  2. Intelligence. Governments are clearly reinvesting in intelligence-gathering, although it's difficult to find out how much and through what means. The key point is that governments will do anything legal or extra-legal to surface plots before they happen. Again, this is entirely proper but increased intelligence tempo also implies more bad information. We're no doubt scooping up innocents as a result of this bad information. Intelligence analysis relies on a "guilty until proven innocent" standard, and is therefore extra-legal at best. We're suffering as a society because of this, because odd behavior can land you in a world of hurt. This can't go on forever. We must have a way of returning the innocent to society and making them whole.

  3. Preemptive action. We're fighting terrorism like a war, which means that we will kill if arrest isn't practical. But the use of violence against non-state actors still has only the most rudimentary framework of international law surrounding it. This will have to change before societies can be truly stable in a sea of terrorist threats.

  4. Imprisonment. When you do vaguely extra-legal things to interdict terrorist attacks, it follows that you have to be similarly extra-legal to keep the terrorists from being released and trying to hurt you again. This is an area where we see a broad set of solutions, from Guantanamo and extraordinary rendition all the way down to ineffectual trials and release of the suspects. In short, this is (like many other issues) an area where there's no international consensus or norm yet. I suspect that this lack of consensus is part and parcel with the international community's inability to decide with what it's at war.

  5. Secrecy. Perhaps the most troubling aspect in all of this is that whatever steps our governments are taking on our behalf are being taken in extreme secrecy. This begs a question: Is it necessary to conceal our methods from the terrorists in order to make them effective? Obviously operational details need to be kept secret, but what about the policies themselves? I don't see broad consensus forming until everybody knows, at least generally, what's going on. This lack of transparency is why nobody's having anything other than an hysterical conversation about Guantanamo and rendition and wiretapping and special ops. The public needs more information. A smart course for the Bush Administration--or any subsequent administration--would be to expose the methods being used. It doesn't need to happen all at once, but it needs to happen.

The first step to combating terrorist tactics has been taken by converting the law enforcement problem to a preemption problem. But in doing that conversion, we've ripped the legal cover right off the ball. It's clear that, with the scale of attacks available to the modern terrorist, we're facing something new. Building the legal consensus for how to deal with this may take a generation. The starting point is a practical, extra-legal recognition that our societies need to be protected. The end point will be laws for a new warfare. These can't happen until the practical techniques have evolved and been made public.

As always, transparency is the best tool we have for coming up with the right framework. It's nice we're catching these bastards with increasing regularity. Now we need to figure out what to do with them.


Heraldblog said...

I still think the US has more to gain by following the rule of law, and adhering to its 200 year old tradition of respect for human rights. Six years ago it would have been unthinkable that the US would ever endorse torture as a information gathering technique. The moral high ground is one of the few things that separates us from our enemies, and now we've lost it. How can we convince moderate Muslims that they are better off following the US example than radical Islam?

TheRadicalModerate said...


I mostly agree, but the point is that, given the categories, "criminal law," "international law," and "laws of war," terrorism fits better into "none of the above." The last six years demonstrate the (extremely painful!) evolution that's going on as we grapple with how to deal with this. New law is needed. We'd be better off acknowledging this fact and having an explicit dialogue, rather than continuing the hand-wringing and hysteria that occurs when we try to put the terrorist square peg into the criminal round hole.

(Oh, BTW: Thanks for commenting. I haven't been doing this very long and it's nice to receive confirmation that every month or so a stray eyeball scrapes across this page and neurological activity ensues.)