Federalist Society, War on Terror

Do We Have the Legal Tools To Prevent Terrorist Attacks?

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On Tuesday night, we attended a very interesting panel discussion, “Do We Have the Legal Tools to Prevent Terrorist Attacks?” It was sponsored by the New York City Lawyers Chapter of the Federalist Society, and it featured the following panelists:

Andrew C. McCarthy (no, not that Andrew McCarthy) — Senior Fellow, National Review Institute, and author, Willful Blindness: A Memoir of the Jihad.

Glenn Sulmasy — Professor, U.S. Coast Guard Academy and author, The National Security Court System: A Natural Evolution of Justice in an Age of Terror.

Samuel J. Rascoff — Assistant Professor, NYU Law School and Former Director of Intelligence Analysis for the New York City Police Department and Special Assistant to the Coalition Provisional Authority in Iraq

Hon. Kenneth M. Karas — United States District Court for the Southern District of New York (moderator)

Read about the wide-ranging and thoughtful discussion, after the jump.


The youthful-looking Judge Karas — dressed in a dark grey suit and an impossibly crisp white shirt, probably dating back to his days as a prosecutor — introduced the panelists. He noted that Andrew McCarthy was his unit chief, in the legendary U.S. Attorney’s Office for the Southern District of New York, and self-deprecratingly claimed that McCarthy “helped me avoid reversible error on numerous occasions.”
With respect to the panel topic, McCarthy framed the question this way: What is the nature of the problem? If we’re seeking to prevent terrorist acts, as opposed to just respond after the fact, then “the law of armed conflict has to be part of that solution.”
Relying solely on the criminal justice system is inadequate, according to McCarthy. In many cases, we know that someone means us harm, but are unable to prove it beyond a reasonable doubt — the standard of proof required in criminal cases. Furthermore, much of the evidence necessary for a criminal prosecution may be impossible to present in court, due in part to national security concerns.
Interrogation must be part of any prevention paradigm, McCarthy claimed — and officials charged with protecting the United States must have leeway to employ a broad range of interrogation measures. The public debate we’ve been having over the methods employed by the Bush Administration is “paralyzingly stupid,” McCarthy said.
Torture is a legal concept with a legal definition, and that definition was not met by the methods that are now the subject of debate. To characterize what was done as “torture” is to trivialize real acts of torture, according to McCarthy. We don’t want government officials engaged in the war on terror to constantly be looking over their shoulders, fearing professional ruin or criminal liability if they make a judgment called deemed wrong in hindsight.
The next speaker, Glenn Sulmasy, echoed many of McCarthy’s concerns. He argued that criminalizing policy preferences creates a dangerous chilling effect, preventing government officials from doing their jobs.
Professor Sulmasy identified two paradigms at work: the criminal justice paradigm, and the law of war paradigm. The war on terror is a hybrid conflict — terrorists are partly criminals, and partly warriors — and any response must be a hybrid solution. It makes no sense to employ only one of these paradigms — e.g., the criminal justice paradigm. Why should prisoners of war, captured on the battlefield, be given the full panoply of rights accorded to defendants in the criminal justice system?
Professor Sulmasy’s proposed solution: the creation of a national security court system. This judicial system, which would include Article III judges with expertise in both military and civilian legal systems, would protect human rights while also promoting national security. (That admittedly sounds like a tall order; for the details, check out his book.)
Sam Rascoff, the designated liberal foil for the evening, actually didn’t mix it up with the prior panelists as much as one might have expected (and he acknowledged as much in his remarks). He offered no call to coddle terrorists, to allow them to suck at the full constitutional teat. Rather, Rascoff wondered whether McCarthy and Sulmasy’s approaches to the issue might be too modest rather than too sweeping.
McCarthy and Sulmasy are focused primarily on what to do with a specific, limited group of people: detainees / terror suspects. But what we really need to do is address a broader question: What should be the law of counterterrorism? What bodies of law should be brought to bear upon the fight against terrorism?
Rascoff’s preferred approach — which sounds a bit Obamanian, but not in a way that upset the Fed Soc crowd — is to think of terrorism response as a regulatory and a risk management issue. He identified three tasks:
(1) Risk assessment: how do we gather intelligence (digression: harsh interrogation of terror suspects is like “a poor man’s form” of intelligence gathering, an after-the-fact substitute for inadequate human intelligence, e.g., agents who have managed to infiltrate al-Qaeda);
(2) Risk management: how do weigh the costs and benefits of different possible responses; and
(3) Intervention: what actions can we take to disrupt terrorist activities.
With respect to intervention, Rascoff explained, it’s not just a matter of locking people up. Other tactics might include targeted killings; the use of financial tools, to freeze the channels that fund terrorist activities; “the proverbial tap on the shoulder,” i.e., letting suspects know that they’re being watched; and projections of strength (like periodic police shows of force, when a gazillion police cars and officers flood the New York City streets).
The panelists’ presentations were rather academic, in a good way — thoughtful, sophisticated, nuanced. Another attendee observed: “That was an excellent panel. It’s so refreshing to hear the pros talk as they do: it’s entirely about security, with scarcely a touch of partisan point-scoring.”
It did get a touch more O”Reilly Factor in the question-and-answer session. Several highly conservative audience members asked aggressive questions of the presenters, suggesting that perhaps they need to be even more hawkish than they already are. Yes, there was bashing of the French.
Your above-signed scribe asked the panel: To what would you attribute the lack of major terrorist attacks on American soil since 9/11?
Andrew McCarthy cited the more comprehensive government response to terrorism in the wake of the September 11 attacks. Prior to 9/11, the war on terror was conducted primarily through the criminal justice system; after 9/11, there was a realization of the need to bring more parts of government to bear on the problem (e.g., military action, disruption of financial channels, etc.). Armed conflict has helped in this regard: “Killed and captured terrorists don’t blow stuff up.”
Glenn Sulmasy concurred, noting that “taking the fight to the terrorists” has certainly helped. The creation of the Department of Homeland Security was a critical step, as was the updating of FISA and the enhancement of our intelligence capabilities.
Samuel Rascoff began his response with an excellent quip: “This is not only a game of football; it’s also a game of chess.” We need to think strategically about combating terrorism — and, thankfully, “we’ve gotten a lot smarter [about these issues] in the last seven to eight years.”
Let’s hope that this trend continues. In any event, thanks to the Federalist Society for putting together an interesting and informative discussion.
Do We Have the Legal Tools to Prevent Terrorist Attacks? [Federalist Society]

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