Assessing the Threat: One More Meta-Question for Ben and the Group

Before we move on to the specific questions of detention and interrogation, I’m curious about Ben’s, and others’, reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our “very different assessments of the terrorist threat.” (Orin has now blogged on this point here.)  I responded that I was skeptical of this — that I assumed there was not much distance between most of us, Ben included, on the nature of the threats (plural explained below), but only on how we think Congress, the courts, the Constitution and international law should respond to such threats.

For what it’s worth, my starting assumption has been that it is important to identify and distinguish two distinct sorts of threats. First, although there is a very interesting and important debate/discussion now underway as to whether and how al Qaeda is gaining or losing strength, I assume that al Qaeda is and will for the foreseeable future remain a chronic but intermittent threat with respect to what I will reluctantly call “familiar” terrorist acts — terrible acts of violence, but roughly within the range of what the West has been confronting for the past two or three decades: incidents such as the African embassy bombings and the London and Madrid bombings, as well as intermittent suicide bombs in subways, malls, etc. Some of those terrorist acts will occur in the U.S., more overseas. Perhaps, on occasion, something more dramatic, akin to the 9/11 attacks.

Then there is the quite distinct threat of the use of WMDs. From what I (decidedly a nonexpert) know, the nuclear threat is not nearly as serious, at least in the short run, as the threat of the release of a deadly biological agent in a major Western city. (In any event, when I worked in the government, the latter was much more what kept folks in the intel community awake at night.) From what I have heard, there is some non-negligible chance of al Qaeda pulling off such a catastrophic attack within the next generation. I have no idea how to quantify that risk, but to my mind it is a risk that should be treated differently from the risks of “familiar” terrorist attacks. Not because it is an existential threat to the United States — it’s not. But because it’s something on a far different order from what we’ve seen before, something that (like Katrina) could dramatically alter life in a major urban area for many years.

Now, my sense is that we all agree, roughly, that these describe the nature of the al Qaeda threats — and yet we still disagree on the legal responses. Am I right about that?

If so, then, for what it’s worth, I’m of the view that the two sorts of threats need to be disaggregated, and call for different sorts of responses. We should not treat the risk of a suicide bomb in the Metro or at a mall as equivalent to the biological risk, nor treat all potential terrorists as if they were each a serious risk to release a biological agent. Perhaps the law ought to have stronger, more restrictive responses to persons who are serious threats to use biological weapons, in particular. The trouble, of course, is that we don’t know which potential terrorist present that distinct threat. Nevertheless, I don’t think such uncertainty calls for wholesale dragnets and incommunicado detention in order to try to find the biological needle in the haystack.

To which Orin responds: OK, but what if the odds of a biological attack in our lifetime are 50% rather than one or ten percent? Would that change any of our views on the appropriateness of somewhat indiscriminate detention? More coercive interrogation standards? I know that Deborah is among those who have been giving this question serious attention (and my sense is that she thinks detention and torture-like interrogation are not the way to go, even — especially — if one’s objective is to most effectively interdict the biological threat).

Food for thought as we discuss these issues.

But in the meantime, I am curious whether there is any serious space between us on assessing the nature of the threat itself.