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Law Enforcement as a Counterterrorism Tool

David Kris
Monday, January 12, 2015, 10:39 AM
As I read the exchange between Bryan, Wells and Jack about law enforcement versus military methods of dealing with terrorism, I was reminded of a speech I gave at the Brookings Institution in 2010, which was later turned into an article.  And, perhaps not surprisingly, I found that I continue l

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As I read the exchange between Bryan, Wells and Jack about law enforcement versus military methods of dealing with terrorism, I was reminded of a speech I gave at the Brookings Institution in 2010, which was later turned into an article.  And, perhaps not surprisingly, I found that I continue largely to agree with myself, and the views I expressed.  Which in turn allows me to post something here without undergoing the sometimes time-consuming process of prepublication review. Below are some excerpts from my 2011 article (with footnotes omitted).
The consensus [we reached after 9/11], I believe, was that national security was better achieved through law enforcement and intelligence together than through either alone.  Today, however, the consensus that emerged in the aftermath of 9/11 shows some signs of unraveling. We seem to be witnessing a resurgence of arguments to keep law enforcement out of counterterrorism [similar to arguments that supported the so-called “FISA Wall” that kept law enforcement and intelligence separated]. This time, however, the arguments are not coming from civil libertarians, but from the other side of the spectrum – those who are concerned about the effectiveness of criminal justice in protecting national security. The arguments rest on the theory that law enforcement cannot – or should not – incapacitate or collect intelligence from suspected terrorists, and that we should treat all terrorists as military targets to be dealt with exclusively by military or intelligence agencies other than the FBI. As I understand it, the argument for excluding law enforcement from counterterrorism is basically the following: (1) We are at war. (2) Our enemies in this war are not common criminals. (3) Therefore we should fight them using military and intelligence methods, not law enforcement methods. This is a simple and rhetorically powerful claim, and precisely for that reason it may be attractive to some. In my view, however, and with all due respect, the argument is not correct. And it will, if adopted as policy, make us less safe. Of course, I do not contend that law enforcement is always the right tool for combating terrorism. But it is not the case that it is never the right tool. The reality, I think, is that it is sometimes the right tool. And whether it is the right tool in any given case depends on the specific facts of that case.  Here is my version of the argument:
  • We are at war. The President and Attorney General have said this many times.
  • In war, the goal is to win – no other goal is acceptable.
  • To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.
In other words, within the space defined by our values, we must be relentlessly pragmatic and empirical. We cannot afford to limit our options artificially, or yield to preconceived notions of suitability or “correctness.”  We have to look dispassionately at the facts, and then respond to those facts using whatever methods will best lead us to victory. Put in more concrete terms, we should use the tool that is best suited for the problem we face. When the problem looks like a nail, we need to use a hammer. When it looks like a bolt, we need to use a wrench. Hitting a bolt with a hammer makes a loud noise, and it can be satisfying in some visceral way, but it is not effective and it is not smart. If we want to win, we cannot afford to abandon the correct tool to solve the problem. . . . . Law enforcement helps us win this war. And I want to make clear, for the limited purpose of this article and in light of the nature of our current national debate, that this is not primarily a values-based argument. That is, I am not saying law enforcement helps us win in the sense that it is a shining city on a hill that captures hearts and minds around the world (although I do think our criminal justice system is widely respected).  Values are critically important, both intrinsically and in terms of their effect on us, our allies, and our adversaries – and I will have more to say about values later – but right now, in part because of the nature of our national debate on this topic, I am talking about something more direct and concrete. When I say that law enforcement helps us win this war, I mean that it helps us disrupt, defeat, dismantle, and destroy our adversaries (without destroying us or our way of life in the process). In particular, law enforcement helps us in at least three ways – it disrupts terrorist plots through arrests, incapacitates terrorists through incarceration after prosecution, and it can be used to obtain intelligence from terrorists or their supporters through interrogation, and through recruiting them as cooperating assets. . . . . Some say that the criminal justice system should not be used to deal with terrorists because it treats them like common criminals, which they are not. (On the other hand, of course, others say that treating terrorists as combatants glorifies them as soldiers in a holy war and elevates them to a status they do not deserve.) For the pragmatist, however, the key question is not about labels per se, it is about whether the treatment of terrorists is effective (and consistent with our laws and values). The argument that somehow it is inherently “wrong” (strategically) to treat terrorists as criminals is problematic because it provides a theoretical and aesthetic answer to what is, or should be, an empirical and operational question. . . . . An exhaustive comparison of the differences among all three systems would require a longer discussion, but I have identified five relative advantages of our military system and five of our civilian system, viewed solely from the perspective of the government and solely as to the effectiveness of each system in combating terrorism. Of course, in any particular case, all three of these systems – criminal justice, military, and law of war detention – may be lawful and appropriate, and determining which one to employ requires an assessment of the substantive and procedural features of each.
[Read the article for more on the various advantages and disadvantages of each system.]

David Kris is a founder of Culper Partners, with more than 30 years of experience in the private sector, government, and academia. He has been a corporate director, general counsel, deputy general counsel, and chief compliance officer; assistant attorney general for national security, associate deputy attorney general, and a trial attorney at the Justice Department. He serves on advisory boards for several government agencies and as a FISA Court amicus curiae. He is the author or co-author of several works on national security and teaches national security law. He is a member of the board of directors of Lawfare.

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