Security Issues Like Squeezing Jello? Reversion to the Mean? Jack Goldsmith on the Effects of Security Alternatives

by Kenneth Anderson

Jack Goldsmith observes in a Washington Post op-ed that when one avenue of national security closes, another is opened up, sometimes with worse collateral consequences for third parties.  As he says:

Demands to raise legal standards for terrorist suspects in one arena often lead to compensating tactics in another arena that leave suspects (and, sometimes, innocent civilians) worse off.

I think this is right.  One that I have talked about in various venues (including OJ, a chapter in a book Ben Wittes is editing appearing soon, and also here) is targeted killing, and the disincentive to capture and instead kill by standoff missile strike that is, at a minimum, reinforced by the strong desire – not just at the national policy level but also by midlevel people intensely concerned for down-the-road, backward-looking changes in the rules on detention, interrogation, etc. that might burn them later on – not to hold anyone if at all possible.  But the op-ed goes on to consider other compensating policies:

A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists — without charge or trial, without habeas rights, and with less public scrutiny — at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower.

The cat-and-mouse game does not end there. As detentions at Bagram and traditional renditions have come under increasing legal and political scrutiny, the Bush and Obama administrations have relied more on other tactics. They have secured foreign intelligence services to do all the work — capture, incarceration and interrogation — for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process.

One way you might look at this is that there is a sort-of national security constant that remains in equilibrium over time, using one tactic or another, gradually evolving but representing over time a reversion to the national security mean.  Or you might say that national security, seen over time, looks a little like squeezing jello – if squeezed one place it pops out another.  

I think Jack is right that the administration – any administration – tends to strive for a certain equilibrium, as it is confronted with a flow of threats that the public discounts to near-zero but which it does not see itself quite so able to do, however much it might want to.  However, as the op-ed also notes, and I agree, these methods are not completely equivalent or compensating.  That is so not just with regards to third party costs, but also with respect to security as such.  Intelligence gathering, by all accounts not very effective to begin with, has become much more difficult.  This is not compensation, it is a seemingly permanent downward shift in the security mean.  

Besides the consequences that Jack identifies, I would add that the current move to semi-compensating policies means two things.  First, intelligence is likely to be increasingly outsourced to foreign intelligence services.  That can provide valuable information, but it will be increasingly uncorroborated and subject to filtering by those services.  That is not good.  

Second, in a somewhat unrelated matter, I would guess that future conflicts, where not fought by Predator, will be increasingly outsourced to proxy forces.  

In the focus on intelligence and security, I think this second point has not received sufficient attention. The United States has a long familiarity with proxy forces as a form of deniability, among other things – Ronald Reagan, for example, faced with many limitations placed by Congress on his uses of force, found proxy forces an essential element of his foreign policy, in Central America particularly.  The domestic risks that policy can entail are illustrated by the Iran-Contra contra-temps; on the other hand, Reagan was reasonably successful in pursuing his administration’s anti-Communist and anti-Soviet policy aims in Salvador and Nicaragua, among other places, by proxy forces.  

But I would be quite surprised if proxy war were not today under active discussion for places like Somalia (where we have already undertaken measures close to it) and other places.  More precisely, I would surprised if it were not an active discussion among the New Liberal Realists of the Obama administration, whatever the transnationalists say or think.

In any case, whether those last two speculations prove true or not, the tendency of the administration to seek compensating policies seems likely at a minimum to complicate the issues of Guantanamo, Bagram, and other matters besides.

http://opiniojuris.org/2009/05/31/security-issues-like-squeezing-jello-reversion-to-the-mean-jack-goldsmith-on-the-effects-of-security-alternatives/

7 Responses

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  2. Note:  I deleted Charles Gittings’ last comment as engaging in personal attacks, snark, and gratuitous accusations of war crimes.  

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  4. The “inevitability” argument implicit in the Goldsmith piece is its central problem.  The treatment of detainees wherever held, the sending of detainees to countries that torture, all those things are decisions made by humans.  There is nothing inevitable about Bagram being a bad place to hold people unless the people running Bagram decide to make it a bad place.  The logic of Goldsmith is the logic of someone who thinks torture is the way to go (his euphemism is “effective interrogation” – puhlease).  I still don’t buy what he is selling.
    Best,
    Ben

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  7. Professor Anderson — you write that “[t]he United States has a long familiarity with proxy forces.”  For those of us with less expertise in the area, could you provide some other examples from before the Reagan Administration?  Do you believe the use of proxy forces raises any constitutional questions, at least where Congress does not authorize the funding of such forces?

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