Tuesday, August 15, 2006

David Rivkin & Lee Casey on British versus American domestic counterterrorism

My good friends, the indefatigable David Rivkin and Lee Casey, have written a very useful comparative guide to British and American counter-terrorism practices, in the Wall Street Journal, Monday, April 14, 2006, public link, here.

I would add a broader point. It is time for the White House to go to Congress and get legislation institutionalizing US counter-terrorism policy. Institutionalize it in legislative mandates, create institutions, make choices about the tradeoffs between civil liberties and national security in votes taken by Congress, make it permanent. The problem with pursuing the war on terror by presidential discretionary authority is that what lives by discretion, dies by discretion. If everyone is so all-fired up serious about the need for a long term counter terrorism strategy, then we ought to be willing to enact it as a series of laws. The Bush administration is slowly saying goodnight - if it believes its policies are the right ones for the long term, after it is gone, then it should work it out with Congress and make it long term law and policy, not of an administration, but of the United States. If Congress believes policy should be something different, then it should enact something different. But it is time to get beyond discretion and make it law. And it is time to get everyone on the record - time for everyone to put their cards on the table and say, this is where I, Senator So-and-So, make the trade-off between liberty and security. Because there is no question that such tradeoffs have to be made and will be made, whether one admits to them or not. But in a fully functioning democracy, people are transparent about the tradeoffs.

“The British Way”

August 14, 2006; Page A8
The Wall Street Journal

Britain's successful preemption of an Islamicist plot to destroy up to 10 civilian airliners over the Atlantic Ocean proves that surveillance, and other forms of information-gathering, remain an essential weapon in prosecuting the war on terror. There was never any real doubt of this, of course. Al Qaeda's preferred targets are civilians, and civilians have a right to be protected from such deliberate and calculated attacks. Denying the terrorists funding, striking at their bases and training camps, holding accountable governments that promote terror and harbor terrorists, and building democracy around the world are all necessary measures in winning the war. None of these, however, can substitute for anticipating and thwarting terror operations as the British have done. This requires the development and exploitation of intelligence.

Despite this self-evident truth, critics of President Bush and the war on terror have relentlessly opposed virtually every effort to expand and improve the government's ability to gather the type of information needed to detect and prevent terrorist attacks, whether in the form of the Patriot Act's "national security" letters and delayed notification warrants (derisively described by pseudo-civil libertarians as "sneak and peak" warrants), the NSA's once secret program to intercept al Qaeda communications into and out of the U.S., and the Treasury Department's efforts to monitor financial transactions through the "SWIFT" system. These, and similar measures, are among the tools that we will need to finish the job.

In celebrating the British victory -- which was achieved with assistance from American and Pakistani intelligence services -- it is worth considering some of the aspects in which the U.S. and U.K. anti-terrorism systems differ, and what lessons can be learned. Of course, we begin with the proposition that the U.S. and Britain share a common law heritage, with its emphasis on individual rights and limitations on state power, and many of the same basic political values. That said, British law, political culture and sensibilities appear to be far more attuned to the practical needs of preventing terrorist attacks than do their American counterparts. Some examples include the following:

Criminal Investigations: British law-enforcement officials clearly have a more robust ability to investigate suspected terrorist activity than do U.S. police agencies. This is true in a range of areas. For example, traditionally there has been much more direct cooperation between British intelligence and police services; there was never the sort of "wall" between foreign intelligence and law enforcement functions that the U.S. maintained before Sept. 11. Similarly, British officials need not meet the very strict requirement of "probable cause" to obtain warrants that U.S. investigative bodies must satisfy under the Bill of Rights. In Britain, a warrant can generally be issued on a showing of "reasonable suspicion."

In addition, the British police have certain extraordinary tools designed specifically to fight terrorism. These include "control orders" issued by the Home Secretary that not only allow the police to monitor terror suspects, but which -- although the more stringent ones are the subject of continuing legal challenges -- permit the police at the minimum to monitor and restrict terror suspect movements. These orders also enable law-enforcement authorities to identify more easily the overall pool of potential terror operatives, since the close supervision of some suspects requires their undiscovered colleagues to assume more active roles.

Profiling: Ironically, although today's Britain leans far more to the left than does the U.S., British attitudes toward ethnic and religious profiling appear to be far more pragmatic. In the U.S., the subject of profiling -- even as a means of allocating and concentrating investigative resources -- is highly controversial, if not taboo. In Britain, law enforcement and intelligence officials clearly target their resources on the communities most likely to produce terror recruits, and further on the most radicalized segments of those communities. They are also able directly to infiltrate extremist mosques, community centers and Islamicist gatherings, instead of relying almost entirely on informants.

Privacy: Although the British virtually invented the notion of personal privacy -- the saying "an Englishman's home is his castle" can be traced at least to the 16th century -- the concept is not as broadly defined in law or politics as in contemporary America. For example, virtually all public spaces in Britain are surveilled round the clock by cameras, and the government engages in extensive data-mining operations. By contrast, in the U.S., not only have the courts created broad rights to privacy, above and beyond the Fourth Amendment's requirements, but our society has progressed to a point where individuals are considered by some to have a "privacy" interest in what can only be described as public actions -- such as giving personal information to third parties who are not bound by any formal privacy agreement, or participating in widely used fora like the Internet. Indeed, judging by some of the more extreme criticism leveled against war-on-terror policies, there are those who consider as the purest tyranny any compromise of individual autonomy to meet the community's needs.

Secrecy: Similarly, there is a substantial body of opinion in the U.S. which seems to consider any governmental effort to act secretly, or to punish the disclosure of sensitive information, to be illegitimate. Thus, for example, Bush critics persistently attacked the president's decision to intercept al Qaeda's international electronic communications without a warrant in part because of its secrecy, even though the relevant members of Congress had been informed of the NSA's program from the start. By contrast, there appears to be much less hostility in Britain toward government secrecy in general, and little or no tradition of "leaking" highly sensitive information as a regular part of bureaucratic infighting -- perhaps because the perpetrators could far more easily be punished with criminal sanctions under the Official Secrets Act in the U.K. than under current U.S. law.

International Intelligence Cooperation: The British national security bureaucracy is smaller and more tightly knit, and appears to be much less affected by the intense institutional feuds that are commonplace in Washington. Having an intelligence service operate for years in a state of virtual rebellion against its political masters -- as has been the case with the CIA during the Bush administration -- would be unthinkable in Britain.

Britain also takes a much more pragmatic attitude toward the need to cooperate with regimes, or their intelligence services, that have poor human rights records. This has periodically been an issue in both countries. The U.S. has cooperated, and does cooperate, with numerous less-than-savory intelligence services. Working with foreign intelligence services (like Pakistan's) with similar interests but questionable practices will continue to be a necessary part of the war on terror.

Experience: There is, of course, no substitute for experience and there is no doubt that Britain benefits (if that is the right word) from its experience in fighting IRA terror. Although the IRA was arguably a less dangerous threat than al Qaeda and its allies -- if only because the IRA eventually concluded that minimizing civilian casualties was in its political interests -- it was nevertheless well-organized, ideologically committed and vicious. For 30 years, Britain's military and law-enforcement forces investigated, infiltrated, surveilled and openly fought the IRA and won, deriving two important advantages in the process. First, Britain's armed forces and police have been thoroughly schooled in the most advanced techniques of surveillance and counter-terrorism. Second, its political establishment and population (obviously, with some exceptions) have become accustomed to the measures, sometimes intrusive and burdensome, necessary to prevent terrorist attacks.

American antiterror and intelligence capabilities have, of course, developed enormously since Sept. 11 -- and can boast a number of important successes in thwarting potential terror attacks. These include the 2002 arrests of six young men, later convicted for attending al Qaeda training camps in Afghanistan; the 2003 arrests of members of the "Virginia Jihad Network" for undergoing paramilitary training; and the recent arrests of seven Miami men accused, among other things, of plotting to blow up the Sears Tower. Moreover, the existence of the NSA and SWIFT surveillance and monitoring programs indicates that the Bush administration, at least, is fully aware of the intelligence imperatives presented by the Islamicist threat.

The U.S. cannot, of course, adopt all aspects of the British system; our constitutional systems are really quite different. Nevertheless, there are clear lessons that can be drawn from the British experience -- especially in affording the police greater investigative latitude and in accepting some compromise of privacy in exchange for greater security. Bush administration critics often misquote Benjamin Franklin as having said that "those who would trade liberty for security deserve neither." What Franklin actually proposed was a balancing test: "They that would give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." In fighting terrorism, the British appear to have been striking that balance successfully.

Messrs. Rivkin and Casey are partners in the Washington, D.C., office of Baker & Hostetler, LLP, and served in the Department of Justice under Presidents Reagan and George H.W. Bush.

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