Overinvestment in counterterrorism?

Benjamin Wittes, in his outstanding Policy Review article on counterterrorism and law, here, begins by saying that if you are serious - serious, mind you, not just someone reciting a verbal formula - about counterterrorism, you have to accept tradeoffs of security and liberties. And if you are a civil libertarian who does not, well, congratulations on the purity of your principles, but this article and national policy really can't engage with you.

Jack Goldsmith's The Terror Presidency starts from a somewhat similar assumption - not saying that his book won't engage with you, but beginning with the assumption that people will instinctively understand and empathize with the position of national leaders who are indeed concerned for constitutional liberties and order, but must grapple from day to day with threat assessments, daily intelligence briefings offering parades of possible but uncertain horribles, and an enormous sense of responsibility to ensure that our national, state, and local governments do not back into the complacency of the years leading up to 9-11. To make sure, as Bush told Ashcroft, that this never happens again, period.

What The Terror Presidency does not address - it mentions, but does not really answer - is the increasingly common view among American (and other global) elites that the United States has elevated the threat from terrorism far above its actual value. Jack mentions James Fallows and others who remark that the automobile death rate in the US is something like 40,000 annually, so what's the big deal about terrorism? The Terror Presidency remarks on that view toward the end of the book, and notes that as Americans generally become more complacent about terrorism - ironically and dangerously, free to become individually complacent because they believe that government is not being complacent - this purely pragmatic, by the numbers argument becomes more and more conventional wisdom among elites. But the background assumption of The Terror Presidency is that the book's readers will understand and think it right that American officials will be in a "harrowing" position of seeking ways under incomplete information for keeping America safe, and that this inevitably result in actions based around false positives.

Like Ben's article, if you don't share that assumption - either on the Kantian purist rights argument that, though the heavens shall fall, etc., no tradeoffs, or on the by the numbers consequentialist position that we're overinvested in counterterrorism - the book will have trouble reaching you on its core, most fundamental point about counterterrorism necessarily as tradeoffs. You will have many other reasons for finding it fascinating and insightful, and a great narrative read about life inside the Bush administration on the core issue at a key historical moment - but the fundamental argument of the book won't actually engage you. This seems peculiar to me - a deep indictment, in fact, of our elites, frankly - but I think it is where we are at currently. Counterterrorism as intelligence work let alone as war is in the position, once again, of having to justify, not its existence but certainly its place at the top of the many priorites of government.

To be careful in putting this. The by the numbers argument is sometimes offered as a truly naive position that essentially says, as long as there is some other thing - automobiles, malaria, inner city murder, etc. - which on the margin produces more deaths or reasonably anticipated deaths than terrorism, then we are overinvested in counterterrorism. This, of course, is not very bright and smart people don't hold that position. But the serious position of overinvestment in counterterrorism is that the proper level of investment is ... that which matches the level of seriousness as measured in the "market," so to speak, of bad things we seek to prevent that involve human intention and agency, viz., criminal law. Counterterrorism should be proportionate to the threat, and the threat is essentially no more than other kinds of serious forms of organized crime leading to murder and destruction. It deserves the serious attention, in other words, of a very devoted and well funded and well organized criminal law effort - the devoted attention of prosecutors, police, FBI, etc. and even perhaps some special criminal laws to get at these kinds of crimes - but anything more, in the way of wars, surveillance that alters existing rights regimes, etc., is in fact disproportionate to the threat and represents overinvestment in counterterrorism.

Note that these are two different kinds of objections to the tradeoffs in counterterrorism; one is Kantian morality and the other pragmatism. Much of the argument so far has centered on the former, but it is the latter that, I think, is gradually gaining ascendency. Interestingly, although Judge Posner calls for a "probabalistic" analysis of the tradeoffs between security and liberty in the calculus of policy, he does not directly take on the claim that going beyond the criminal justice model inside the United States is disproportionate to the probable threat. (This is in his new book, Counter Terrorism: Blurred Focus, Halting Steps, Rowman and Littlefield, 2007, in the Hoover policy series.) He clearly would not accept the claim, since the argument of much of the book is that we are overinvested in judicialization of counterterrorism, at the disastrous cost of not having sufficient resources in intelligence gathering domestically. But the book does not address the more radical skepticism, that we're overinvested in counterterrorism, period, if one really looks hard at what the threat presents. I don't think this is how the American public sees things; it is probably in the position I mention above - ironically complacent about terrorism precisely because it believes government is being proactive - but I do think it represents the emerging view of elites.

But policy positions on counterterrorism will increasingly, I believe, have to address the pragmatic overinvestment argument. There are ways to do so, of course, and someone like Judge Posner would likely consider them too obvious to require mentioning. It is not simply that terrorism is not deterrable by the threats posed by the criminal justice system or that the criminal justice model offers a far higher level of protection to criminals who pose only modest risks to larger society that we do not think are constitutionally required or prudent to offer to criminal terrorists who threaten undeterrable and graver damage. Those and other objections to the primacy of the criminal justice system as counterterrorism do not get at the depth of the skepticism here - the skepticism is to doubt that terrorism creates risks that are in fact so very different from those of ordinary criminals - certainly not "existential" in the sense of the country as a whole. The most obvious existential threat lies in terrorism employing weapons of mass destruction but there is little, so the argument goes, evidence that WMD is that easy to get or to use, and so the real threat is "ordinary" terrorism. Even 9-11 did not cause the national heavens to fall, just a couple of large towers in one city, and a couple of thousand dead. Even if you add in Madrid, London, Bali, etc., it doesn't amount to something worth changing our lives over - globalization and mobility of people in the 21st century produce these costs, and they simply have to be managed. They can't be defeated in any case. In a word, the Western European attitude toward terrorism - management. Only very foolish right wing Americans would think it can be defeated, and it has defeated us if we have to change our lives in relation to it.

I don't think this is at all right. It does not take into account the indirect costs of terrorism - which in the case of terrorism always are more important than the direct effects, and that is the point, to leverage violence and its threat across a whole population. I suppose one can tell the population that some small percentage of airplanes fall out of the sky anyway, and adding terrorism to the list of causes isn't very significant; air travel is still pretty darn safe. Don't be irrational in your risk assessments. But it does succeed in changing people's lives, and in altering the economy, and in altering their perceptions of government - the response from government is, our problem is not to keep you safe, but to educate you in understandng that your personal risk is very small? Moreover, from the standpoint of ordinary Americans, what changed their lives was not our response to terrorism, but terrorism itself, and they want government to change it back. The pragmatist argument has the weird effect - altogether common in any treatment of Islamism - of treating the problem as entirely what we do, rather than what they do or did to us. The dangerous and narcissistic self absorbed consumers of advanced democracies, as Mark Steyn has repeatedly noted; hey, but enough about those crazy jihadi terrorist guys, let's talk about me!

And this is strategically dangerous - a large reason transnational jihad has got where it has got is from the strategic blindness toward dealing with it early on. The pragmatic approach, precisely because adopts a view that seems "efficient" because it operates on the margin, turns out to be dangerously "tactical" and shortsighted in its approach. It fails to take a "strategic" and long view of what actions on the margin do in relation to the jihadists' calculations of the long term. It has already been noted that they think long term while we think short term; they think strategically while we, whatever we actually think, act tactically; our thinking is always about us rather than about them in the sense that game theory might tell us to look at their strategies and not merely think about ourselves. We might have a different sense of strategy than merely serial actions taken as though independent of each other exclusively on the margin if we thought about how they interpret our supposedly efficient margin-based actions. (There's nothing new about this argument, either the argument or the response, of course - it's just put here in a little bit of efficiency lingo.)

Walzer noted that a crucial moral feature of war is that aggression by one side coerces the other side to act other than how it would; this is the tyranny of war. The same, of course, is true of terrorism - and it is the coerciveness which is its strategic point. The tradeoff for a political system is to tell its citizens that as best as possible they should not alter their lives in relation to the terrorist threat - but that the state will deal with the threat.

(If one believes, as a factual matter, that the threat cannot be defeated, well, that is another argument - also a pragmatic skepticism, but a somewhat different one from the "you're taking it too seriously" argument, although the two feed into one another.)

There are, in other words, important responses to the pragmatist argument. Jack's book starts from the assumptions of the vast majority of Americans, complacent though we may be. Dick Posner's book deals pragmatically, but does not go back that far into skeptical pragmatism. But I think that increasingly the sophisticated argument for quietism will come from a pragmatic, rather than moral rights, kind of argument.