The Constitution versus security

Among those analyzing the tensions between our constitutional values and modern terrorism, Philip B. Heymann is in a class by himself. A distinguished academic with substantial government service during the period when terrorism moved from nuisance to principal national security threat, Heymann is unusual in having had experience on both sides of the conceptual divide that separates law enforcement and national security. His accomplishment in designing the Classified Information Procedures Act to manage classified information in criminal prosecutions is widely recognized, and his later work to help emerging democracies develop new legal structures to prevent citizen abuse by government intelligence agencies is equally impressive. In short, Heymann has a practical foundation on which to base his recommendations. His assessment that our greatest challenge is not defeating terrorism, but doing so consistently with our democratic values, is more credible as a result. Agree or disagree with Heymann, Terrorism, Freedom and Security: Winning Without War is worth careful study.

Surprisingly, events since Terrorism, Freedom and Security was first published in 2003 make its contributions even more timely. The unraveling war in Iraq has made many of Heymann’s positions both morally and practically compelling. Often, his recommendations seem almost prescient. Consider Heymann’s criticism of coercive interrogation and torture. He argues that any possible short-term benefits from such interrogation techniques will in the end be outweighed by the damage they do to our national credibility. As the Abu Ghraib prison scandal now shows, Heymann’s concerns can no longer be dismissed as a naive paean to a lost age of innocence. In fact, even the anticipated short-term benefits of coercive interrogations now seem to be lacking, since it appears that no valuable intelligence was acquired through the use of these techniques at Abu Ghraib. The scandal also demonstrates the impact that such policies can have on our world standing and our hope for success in establishing an Iraqi democracy.

Heymann raises similar concerns about the use of military tribunals to prosecute detainees captured in the Afghan War. His concern is that the United States, having ignored international law when it created the tribunals, has adopted an approach that will undercut its moral authority and reduce support for its world leadership. These concerns too seem now to have materialized. Heymann concludes that, as a result, the United States might be less safe as a nation, trapped in a “go it alone” posture of its own making at a time when more, not fewer, allies are needed.

Yet Terrorism, Freedom and Security goes beyond such criticism to pose even more fundamental questions. Can the nation make wise choices without the pain and loss of such experience-based learning? Can it avoid wrong choices that will make future directions even more difficult? Can it create policies that will more effectively combat terrorism, yet remain consistent with its constitutional values? Heymann suggests that the search for answers to these questions should begin with an effort to understand the nature of the terrorism to be confronted. Once this is understood, the United States should develop tailored responses that address the terrorism fact patterns that have been identified.

According to Heymann, “terrorism” is a concept that covers many activities: limited episodic violence by small groups; continuing campaigns of violence for political ends within a given state; conventional efforts designed to annihilate an external enemy; and the use of weapons of mass destruction in any of these cases. Such acts of terrorism can be conducted by a variety of groups or individuals, including those acting on behalf of states, those receiving support and shelter from states but acting independently, and those receiving no external assistance. No single response to terrorism will be effective in all cases. The nation must take advantage of the entire spectrum of its capabilities, from law enforcement initiatives at home to the diplomatic, military, and economic means that are typically used to advance national security interests abroad.

This recommendation for a comprehensive use of all national capabilities, both domestic and international, severely challenges the traditional structure of policies and law. It requires a fundamental shift in the traditional legal framework. In short, as we now know, the web of legal authorities that guide, support, and limit governmental actions at home and abroad are not designed to address extreme forms of terrorism like that represented by al Qaeda. Something new is needed, both in the structure of practical responses and in the policy and law that conceptualize and control government action. This is the important contribution of Terrorism, Freedom and Security: its analysis of how traditional national security techniques can be adapted for use by law enforcement, without destroying the fundamental commitment to legal and constitutional norms.

Heymann’s analysis of current policy and doctrine establishes why the practical realities of terrorism require such fundamental changes in the approach to domestic security. Law enforcement, traditionally central to domestic security, is organized to react to, not prevent, catastrophic attacks. Its approach typically is to delay action until a problem occurs or at least until there is strong evidence showing that it will occur. Because its principal goal is to convict criminals, the law enforcement community generally accepts an increase in the risk that a crime will occur in exchange for an increase in the likelihood of obtaining a conviction at trial. Heymann suggests that terrorism requires a different approach. The magnitude of a terrorist event demands that law enforcement focus on preventing an attack, rather than limiting its approach to achieving convictions.

In addition, Heymann suggests that the United States should address the state of its crisis management capabilities at home. One can never have complete confidence that all attacks can be prevented. Thus, should an attack occur, the nation needs to have the structures in place to minimize its damage. Heymann points out that the United States has historically paid little attention to this facet of domestic security. Clearly he is correct. The nation should carefully analyze its current structure and invest energy in planning for how it can best handle a catastrophic terrorist attack, should one occur.

Reforming intelligence

The most fundamental change to domestic security, however, must come in the intelligence arena. Heymann concludes—correctly in my view—that intelligence collection is the most effective weapon in our counterterrorism arsenal. Drawing on his expertise in constitutional and criminal law, Heymann suggests that, at home, enhanced intelligence might include increased surveillance or the use of data-mining techniques to identify suspicious patterns of activities. Overseas, we will need increased intelligence sharing with our allies. Still, because such changes can threaten the traditional balance of security and liberty, they must be undertaken only through legislation; a principle Heymann believes has been ignored by the current administration in the crisis following the 9/11 attacks. To avoid infringing upon the civil liberties of U.S. citizens, Heymann identifies four policies we must protect: separation between domestic and foreign intelligence; prohibition of military collection of domestic intelligence; preservation of narrow, legislatively defined limitations on domestic intelligence collection; and maintenance of strict oversight of all secret government actions.

In identifying these and other features needed for an effective approach to security in an age of terrorism, Heymann wisely emphasizes the importance of taking full advantage of the broad range of our economic, military, diplomatic, and law enforcement capabilities. In doing so, he stresses that war—its law, its language, and its traditional mode of operation—is not the answer. In Heymann’s view, the Bush administration’s overreliance on the rubric of war threatens to confuse and erode our traditional domestic legal framework, undermining our system of constitutional rights and liberties, while doing little to advance our national goals.

Of course war does have a place in a response to terrorism. The war in Afghanistan demonstrated a “wise” use of the military. In that case, military force was required to defeat a nation state complicit in al Qaeda’s terrorist activities. Yet in situations where individuals, not nations, are the enemy, Heymann argues that an all-out war will seldom be useful and may even be counterproductive. Consider the dilemma posed when terrorists are embedded in civilian populations. Heymann astutely points out that such situations demand investigative police work, not military action. In today’s environment, law enforcement agencies are often much better suited to identifying and eliminating small terrorist cells than are military forces. For Heymann, the very nature of terrorism means that war and military action will be of limited practical use. Success will require a broad range of approaches to terrorism and the recognition that defeating the enemy will be a lengthy process. The United States needs a long-term strategy that, unlike war, will not risk distorting the very nature of the country’s constitutionally based society.

Thus, in Heymann’s view, the duration of the current terrorist threat poses an additional danger to the exclusive reliance on a military solution. This may in fact be the central problem posed by the “war” on terrorism. Wartime exigencies inevitably lead to the setting aside of many peacetime constitutional and legal limitations: the so-called “black hole” theory of constitutional rights. As a temporary dislocation of the normal cost/benefit relationship between security and individual liberty, we tolerate war in situations of short duration where a nation’s very existence—its economy, political system, and way of life—are at risk. But this is not true of today’s terrorism. Heymann worries that if we accept a war of unending duration, we risk permanently reducing our expectations and adapting our behavior to a diminished level of constitutional guarantees. We will, in short, lose the habits of democracy. This is the most compelling reason to reject war as a long-term solution.

Underlying this discussion is an increasingly obvious assumption, which we as a nation have yet to confront. The deadly terrorism produced by conflict within failing states, particularly those in the Middle East, is not likely to be a short-term phenomenon. Instead, it promises to be a persistent condition with relatively modest destructive force but no boundaries or limits on its actions and targets. Although Terrorism, Freedom and Security was written before the war in Iraq, in the war’s aftermath we see that the conflict may well have increased the possibility of terrorism by creating many of the underlying problems that classically produce terrorism. First, in removing central governmental control, it has allowed political divisions to occur. In time, these have deepened as civilian control erodes and violence increases. The daily spectacle of terrorist incidents reflects this spiral in the breakdown of authority. Of even greater concern, there are indications that this pattern might be present in other parts of the Islamic world as well. Terrorism is bred and thrives in such vacuums of authority. Yet establishing order by democratic means will not be easy. Heymann is clearly correct in asserting that terrorism will not be a problem of limited duration. It is a resilient threat, both because it is flexible and nimble and, in Heymann’s words, there exists a “sea of individuals whose felt grievances [lead] to enthusiasm for [such terrorist] attacks.” This national security challenge of the 21st century is not likely to be dispelled soon.

Understanding terrorism

I share Heymann’s view that the United States has not fully grasped the complexity of the new terrorist threat overseas or at home and the need for a multifaceted response. Indeed, the nation’s learning about terrorism since the 9/11 attacks seems confined to recognizing how vulnerable it is and how impotent the government’s protection is at home. True, America’s view about the seriousness of the terrorism it faces was permanently altered by the 9/11 attacks and, more recently, by daily reporting of terrorist activity in Iraq, but its concept about how best to respond has not advanced far. Here at home, the nation is hampered by its limited practical experience with terrorism, notwithstanding numerous incidents abroad. Further, years of remarkable domestic security have lulled the country into complacency and the expectation that it will never be strategically threatened at home. These assumptions are reflected in laws, policies, practices, training, and education. This lack of preparation and unrealistic expectations in the face of growing world terrorism create their own special danger: The nation’s response to fundamental threats that it does not understand, and for which it is not prepared, is likely to be driven by fear. Heymann may well be right that U.S. impatience and its desire for quick and easy solutions could lead it to see war as the easy “one-time” option. Certainly national support for complicated solutions has never been strong, and the responses demanded by terrorism are nothing if not complicated.

It is thus helpful to be reminded so lucidly that the national response to terrorism will not be found in one agency or a single policy. There is no simple solution, no silver bullet. The goal must be to develop a comprehensive security policy built on a system of layered defenses, each calibrated according to a complicated set of possible terrorism scenarios. This policy must be capable of application domestically and abroad. The nation must adjust actions according to constitutional limitations that will shift as the terrorist threat moves across borders, but the country must also prepare to act in ways that take full advantage of the complete range of all its possible players and capabilities. Finally, Heymann is correct that the ends and means in countering terrorism must be realistic, and the policies must be sustainable over many years. The financial impact of any strategy should be manageable, and any change to the balance between rights and liberties must be calibrated to avoid permanently altering the habits and conditions that support the constitutional freedoms we cherish. This will require us to tolerate some level of risk. Calibrating a response to eliminate all risks from terrorism will be both financially ruinous and destructive of civil rights and civil liberties. A zero-tolerance policy is simply not a viable response to terrorism.

Terrorism, Freedom and Security offers an important start in developing a new approach to terrorism policy and doctrine. Heymann’s efforts illuminate a path to a domestic security posture that can address terrorism without compromising individual rights and liberties. Like Heymann, I believe that terrorism is a long-term phenomenon, the product of breeding grounds around the world. It is a disease that is likely immune to a military cure and will require a sustained and forward-looking foreign policy. If Heymann is correct, and I believe he is, then the analysis and recommendations in Terrorism, Freedom and Security should be considered essential reading for us all.