More Plans in Search of a Hearing

Over the weekend, Stuart Taylor joined the cast of conservative legal commentators (see also Jack Goldsmith, Ben Wittes, Jack Goldsmith and Ben Wittes) offering advice to the incoming Obama Administration on how to right the legal ship of security and state. Taylor’s reasonable jumping-off point: the actual security threats against the United States.

President-elect Obama’s announcement of his (mostly) stellar national security team coincides with the release this week of a bipartisan commission report with this chilling assessment of the most important challenge that team faces: “Without greater urgency and decisive action by the world community, it is more likely than not that a weapon of mass destruction will be used in a terrorist attack somewhere in the world by the end of 2013.” Perhaps the commission, former Defense Secretary William Perry, and other experts who have issued similarly dramatic warnings are crying wolf. Perhaps the likelihood of any terrorist group getting a nuclear bomb is “vanishingly small,” as Ohio State political science professor John Mueller has forcefully argued. Or perhaps it’s closer to 30 percent over the next 10 years, as Matthew Bunn of Harvard’s Kennedy School estimated last month in “Securing the Bomb 2008.”

The ubiquitous Mr. Taylor (find him this week also over at Slate offering advice to the incoming Department of Justice) deserves credit for sourcing. Matt Bunn, for instance, is widely thought of as one of the country’s leading experts (if not the leading expert) on where the world’s nuclear weapons and nuclear weapons-grade material stockpiles can be found, and how effective (or not) various international efforts have been to track and secure these weapons and stockpiles. His Kennedy School project has done a tremendous service in publishing thoroughly documented annual reports on his valuable non-classified findings. (It might also be of interest to OJ readers that Matt’s dad is George Bunn, former dean of the Wisconsin Law School and, more immediately relevant here, in the 1960’s a key point person for the United States in negotiating the nuclear Non-Proliferation Treaty, later serving as U.S. ambassador to the Geneva Disarmament Conference.)

The thing is, neither the WMD report Taylor mentions, nor “Securing the Bomb 2008,” provides any support for where conservative legal advice invariably goes next: preventive detention and coercive interrogation as essential to preserving “our way of life.” Matt Bunn’s report, for example, is richly informative, and includes detailed recommendations about what our nuclear terrorism prevention efforts should feature. Curiously, coercive interrogation and/or detention recommendations figure not at all. Likewise, the WMD commission report’s key recommendation on human intelligence: expedite efforts to hire intel personnel who speak relevant languages and have any relevant ethnic or cultural background.

Does all this mean detention and interrogation policy don’t matter at all to our security? Hardly. (Among other important security effects, the Brits got balky about cooperating with us in certain covert counterterrorism operations when the current administration failed to provide adequate assurances that we’d refrain from engaging in torture.) What I’d say it does mean, though, is that Mr. Taylor and law-related friends haven’t yet made their case. It’ll be interesting to see if they find their own group of retired generals to make it for them.