28 Jul Peter’s Two Points
Peter makes two points, one with which I largely agree, the other with which I disagree. Agreement first:
I have no doubt that the structures we create to fight terrorism have to be reconcilable not only with the American constitutional tradition but with international law as well. While I am skeptical that a meeting of the minds between American and European sensibilities will be easy to come by, I don’t believe the United States has been well served by its international isolation on the key actions it has taken in the war on terror–any more than the executive branch has been well served by its go-it-alone posture domestically. The book focuses on domestic law not because I don’t think international law is important but because it’s something over which the United States has less short-term control. In other words, in the long run, I believe that the international community will need to significantly rethink and supplement the law of armed conflict as pertains to this kind of asymmetric warfare. And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials. So I’m open to international law, as Peter puts it, as part of the solution. But that’s in the long run. My concern in this book was what America should have done over the last seven years and, more importantly, what it should do now. Given the problems of garnering international consensus, international law was an improbable instrument for that project. For such short and medium term questions, domestic law seems like the essential tool.
Peter’s more fundamental critique is that my premise is wrong: Al Qaeda is not really that much of a threat and it’s certainly not worth tearing up our law books over it. This goes to one of the central paradoxes of the war on terror: The more successful we are in stopping attacks, the less people believe in the threat and the less willing they become to take the steps necessary to stop attacks. Had even a small number of the plots the government claims to have disrupted since 9/11 come to fruition, we wouldn’t be sitting here scratching our heads about whether Al Qaeda is for real or whether the threat of terrorism is overstated. As it is, however, we debate how “imminent” a give foiled attack really was, and we tend to conclude that it wasn’t all that close. The result is a growing gap between public sentiment, which tends towards complacency, and the abject terror still felt by those who read the threat reporting every day.
For whatever it’s worth, I don’t believe the threat is overstated; if anything, I suspect the opposite. I disbelieve as well that we could release all but a handful of leadership cadre folks at Gitmo without assuming significant risk. Rather, I think there’s a significant crop of people down there who mean America great harm and will act on whatever opportunities we give them to inflict that harm. And I think that the capacity of Al Qaeda or similar successor groups to generate highly-lethal personnel in large numbers will prove significant. In other words, I do think we’re facing something long-term and different in kind from previous conflicts–one that requires the generation of new legal regimes distinct from both the criminal law and the laws of war.