Sunday, March 04, 2007

Announcing policy paper on counterterrorism policy by Elisa Massimino, Human Rights First, and ... me!

(Update, Thursday, March 7, 2006: Welcome Opinio Juris readers, and my thanks to Peter Spiro there for calling attention to Elisa's and my piece!)

The Stanley Foundation, headquartered in Muscatine, Iowa, has an ambitious and exciting foreign policy project in the run-up to the 2008 elections. Called "Bridging the Foreign Policy Divide," it brings together pairs of experts across the center left, center right divide to write a joint paper exploring both common ground and differences on important foreign policy topics. David Shorr, a long time human rights and foreign policy expert and advocate in DC, now with the Stanley Foundation in Iowa, coordinates the program. It has many outstanding participants - Mark Lagon and David Shorr on the UN; Gary Schmitt and Michael Schiffer on China; Ivo Daalder and Robert Kagan on America and the Use of Force; Michael O'Hanlon and Frederick Kagan on Iraq and US military strength - you can see the full list at the Stanley Foundation website. The project is just starting to release the published reports - starting with Lagon and Shorr on the UN - and they can be accessed here. The series is edited by Derek Chollett of CSIS, Tod Lindberg of Hoover and editor of Policy Review, and David Shorr of the Stanley Foundation; they also writing in the series.

Elisa Massimino, long time Washington director of Human Rights First - the leading civil liberties/human rights advocacy organization on the US war on terror - and I were asked if we would write a paper together on issues related to the war on terror. The idea, once again, is to pair a centrist conservative with a centrist progressive (Elisa, can I call you a "centrist progressive"?) to see what common ground - without ignoring the differences - we could work out. I found this to be one of the most enjoyable collaborations in writing I've ever had - almost entirely due to Elisa being such a wonderful person. She never hesitates to state her view plainly, without pulling punches, so you always know where she's coming from, but at the same time is utterly reasonable about everything and is always willing to try and see the other side and try to find the common ground. I can see why her reputation as a human rights advocate is so high here in DC. She's also a great writer and editor, knows all of these issues like the alphabet - this article was a great pleasure to produce.

It's also hard, of course, if you are in Elisa's institutional position - I'm just an academic and can say anything I like, but if you are a leading institutional advocate, then you have to think very carefully about how an attempt to build common ground, find compromises that you might not have advocated on your own, will go over with your own human rights community. It took some guts for Elisa to sign off on this project in a way that is simply not an issue if you are, like me, a free agent academic. But one of the great things about this project is that working closely with someone as experienced, informed, and smart as Elisa really did cause me to rethink my positions - I changed my mind on some important things, not on some others, but I have a far better understanding of the complicated arguments on all sides, and that's thanks to Elisa's patient discussions.

Anyway, our paper, The Cost of Confusion: Resolving Ambiguities in Detainee Treatment, is being released next week. We're having a small dinner to launch it Tuesday night, and then a larger lunch event in DC on Friday. It is not long - deliberately held down to 6 or 7,000 words, and we've tried to avoid swamping the piece with legal technicalities. But we think it's a pretty good policy statement of where a new administration ought to go. I will be writing more on this myself down the road, and I'm sure Elisa will be as well, and this joint project has underpinned my thinking about these issues. The paper can be downloaded from the Stanley Foundation, but I've also posted it to SSRN, here.


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Nathan Wagner said...

Professor Anderson,

I've read your joint point paper with Elisa Massimino, and I appreciate your efforts and those of the Stanley Foundation to find common ground between center-left and center-right on these issues. Certainly you came to some useful agreements – particularly with regard to Congress's responsibility and the need for precise definitions. However, I could not help but notice that virtually all of the rhetorical stridency in the paper was in service of her perspective, that occasionally your reservations were relegated to footnotes, and that certain of your supposed agreements will necessarily be read as having implications which, if I understand your positions correctly, you would not support.

(1) The paper rejects "war" as an adequate legal paradigm for the global counterterrorism effort, however useful and valid it may be as a rhetorical framework. I gather that your rejection of the term "war" in this context is more technical and legal than it is ideological, whereas I suspect the reverse is true for your co-author. The agreement has an unfortunate consequence.

The fundamental reason, after 9/11, why the administration rejected the previous law enforcement style approach to terrorism was that those attacks forced upon us a new appreciation for the nature of the enemy. A rational potential criminal, in making the decision to commit a crime, will weigh the likelihood of his getting caught, and the severity of the penalty if he is caught, against the prospective gains of criminality. Because people in general – even absent any moral sense – understand this dynamic, they are, by-and-large, deterred from committing crimes. Law enforcement in our society, therefore, can work effectively by operating primarily on a responsive basis: the criminal commits the crime, then the police catch him, the criminal suffers punishment, and others are deterred from similar crimes.

But there is a enormous difference in mindset between a common criminal and our terrorist enemies. The terrorists are committed to a religious system which, they are convinced, guarantees them eternal rewards for suicidal terrorist acts. This conviction makes them virtually impossible to deter. In order to fight this sort of terrorism effectively, we have little choice but to act preemptively rather than responsively. We have to apprehend those who are plotting murder rather than those who have already committed it. But law enforcement in the Anglo-Saxon tradition strongly privileges liberty and individual rights; it is very uncomfortable with preemptive methods. The administration therefore rejected the law enforcement paradigm.

If I understand your thought correctly, you are convinced that this fundamental insight was correct: the nature of enemy requires that we rely more upon preemption than upon response. You are therefore willing, in principle, to allow the government to use certain tools and methods which, in the absence of the terrorist threat, you (and our society at large) would prefer we not employ. You would appropriately limit such tools and methods, but you are willing to concede their unfortunate necessity. I do not get any such sense from your co-author. She would regard those apprehended for plotting terrorism as civilians and require that they be tried by civilian courts, enjoying all the privileges and advantages American citizens enjoy in such circumstances.

To come to the point, while you reject the paradigm of war because the global counterterrorism effort does not fit well into the existing framework of the law of war, you believe that the new threat does require some sort of new paradigm. Your co-author believes no such thing: she rejects the paradigm of war not only because of the legal framework problems and the executive power concerns but also, at bottom, because of her convictions with regard to fundamental issues of human rights. The opposite of "war" for you is a special statutory legal system designed around a recognition of the nature of our terrorist enemy. The opposite of "war"' for her is traditional civilian law enforcement. Because you hardly mention the post-9/11 insight into the nature of our enemy, the rejection of "war" in the paper reads as a call for return to traditional unmodified law enforcement with all its restrictions and limitations.

The nature of the terrorist threat has forced us to adopt or consider a preemptive posture employing methods we would prefer not to employ in the absence of such a threat. In any honest discussion, the right must acknowledge that such a posture and such methods do infringe upon our ideals of liberty, human rights, and due process. However, in any honest discussion the left must also acknowledge that not adopting such a posture and such methods come at a real price in terms of national security. You never compelled her to make this acknowledgment.

The Bush administration ought not to have tried to run global counterterrorism all by itself. On that we can all agree. But proper criticism of the administration neither voids the administration's insight as to the nature of our enemy and the limitations of traditional law enforcement in confronting that enemy nor justifies a reversion to the pre-9/11 rights/security balance.

(2) If indeed torture or lesser forms of abuse are not effective in extracting intelligence from enemies that could not be otherwise extracted, then there is no moral choice to be made: clearly all such interrogation methods should be banned. You state in your footnote that you are skeptical of the validity of this proposition. Indeed, there is anecdotal evidence that the Iraqi army is able to extract more actionable intelligence from bomb-makers it catches red-handed and interrogates than is the American army. You would be willing to sanction harsher techniques for the likes of Khalid Sheik Mohammed. The point is this: because your disagreement was relegated to footnote, that section of the paper became a largely one-sided rhetorically strident disavowal that there is any moral tradeoff in the question at all. Again, the right must acknowledge that abusive interrogation techniques are indeed abuse, but the left must also acknowledge that there is a non-chimerical security tradeoff to be made. The paper does not do this outside the footnotes.

Keep up the blogging – I always enjoy visiting your page.

Nathan Wagner said...

I need to clarify and perhaps backtrack a bit on item (1) of my comment. The conclusion of the paper does emphasize the operational area between war and law-enforcement, and I should have acknowledged that.

But considered as a prescriptive guide to future administration legal policy, I think it is fair to say that the paper strongly and unitedly rejects the "war" paradigm while being at best wishy-washy on the necessity for a new legal regime to deal specifically with the terrorist threat. The paper raises and immediately dismisses the prospect of a "comprehensive" reworking of the laws, which would presumably include the creation of special courts with special rules of evidence, etc.

Without a stronger and more specific defense of this alternative to war, founded upon an affirmation of the essential rightness of our post-9/11 rejection of conventional law enforcement, the paper reads, to any officials interested in practical application, like a call for a return legally to the conventional law enforcement paradigm.

It is much more difficult to create a new paradigm than merely to shift between existing ones. Under a war paradigm, however flawed, it is legal to employ the kinds of counter-terrorism methods that are necessary and effective (such as extended detention and interrogation). Under a law enforcement paradigm, the legal playing field tilts sharply in favor of the terrorists. This is especially the case if the international great and good insist that unlawful combatants are civilians under Geneva. That, I think, is not where you want to be. Given the ease of shifting between existing paradigms as opposed to creating new ones, I think you run the risk of committing advocates of robust counter-terrorism efforts to a hopeless legal defensive.

There is good reason to reject the war paradigm in law. But unless such rejection - especially rejection as strident as that in the paper - is accompanied by equally strident insistence that the terrorist threat requires that we take measures that will not and cannot fit under the conventional law enforcement paradigm, you make the perfect the enemy of regrettably preferable.

Nathan Wagner said...

grammatical correction: the perfect the enemy of the regrettably preferable.

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