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September 10, 2009
Exclusive: As Terrorism Evolves, So Must Our Tactics for Preventing It
Terrorism is a growth industry. In days gone by, it was the work of freelancers; people just above street thugs employing the brutal skills of serial killers. Their reach was short, dependent, as it was, on the tolerance and shelter of local populations. They carried out their malign work with crude weapons and limited effect. They killed people, of course, but not on a large scale and very much at random, as they seized opportunity more than engaging in planning. Indeed it was that very randomness that gave their work much of its fearsomeness.
Outlaw regimes like the Soviet Union institutionalized terrorism by supporting indigenous groups of disorganized armed thugs, providing sophisticated weapons, money and logistical training and support. That increased terrorism’s competence and sophistication and enabled terrorists to extend their reach and scope in increasingly dangerous ways. No longer were they confined to small acts of random murder. Utilizing the structures they built while under government sponsorship and employing the instruments of modern technology, they created complex structures and an organized and efficient “Terror, Inc.”.
We have seen the results in Fortress America.
When terrorism was random and disorganized, it could be handled as a law enforcement problem. Crime, after all, is generally a random act by a solo actor. Now that it is vast, global and systematic, it cannot. President Obama’s recent neutering of the CIA and the reassignment of interrogation of terror suspects to the FBI, fundamentally misunderstands the nature of both organizations and their respective purposes in American security.
It also fundamentally misunderstands the nature of law enforcement as compared to intelligence gathering. The FBI is a law enforcement body established and organized on a law enforcement model that incorporated the world view of lawyers. Its culture is a lawyer’s culture. That stands to reason since its long time director, the man who formed the culture that is the FBI today, was J. Edgar Hoover, a lawyer who in the initial stages of FBI history preferred his agents be lawyers schooled in the law and steeped in the legal culture.
What is that culture? It is a culture that focuses on the proof of facts based on evidence developed to prove a proposition. It is a discipline geared toward the solution of mysteries for the purpose of bringing justice through the presentation of evidence of wrongdoing. In law, one does not have a dispute – civil or criminal – until someone does something wrong. A civil lawsuit is a means through which a person who has been harmed in some way by the wrongful acts of someone else is made whole by forcing the wrongdoer to make it up to him in some way; primarily by paying money.
Criminal cases arise when a crime is committed and the task of law enforcement bodies is to find out who did it; develop sufficient evidence to prove he did it and then bring him to trial so he can be punished for doing it and incentivized or prevented from doing it again. Incarceration is simply a means of keeping the criminal away from potential victims. Evidence gathering is directed toward the development of facts regarding things that have already happened.
But there is no criminal case until a crime has been committed. That is the rub. Law enforcement bodies do not prevent crime except as a by-product of catching people who commit it and putting them in jail. Their mind-set is the solution of crime after it has occurred. Your local police department will not prevent your murder. It will solve it after you are dead. That might satisfy society’s need to provide some modest form of security to those who survive but it is cold comfort to the victim.
That is the crux of the debate over gun control. Gun owners do not care if the police catch the guy who murdered them. They want to prevent him from doing it to begin with. Police agencies, including the FBI, are not geared by training, knowledge or predisposition toward preventing crime from occurring. They are trained to solve it after one has already been victimized.
The lawyer culture is also one of rules and etiquette. Lawyers understand that one cannot, under the law, punish someone who has done nothing wrong. They understand that society cannot prosecute people for bad intentions. They know that unless they can prove a crime has been committed or is imminent and underway, they cannot intrude to prevent it. They also know that there are limits on what can be done to prevent someone from doing harm even if one knows he has that intention. That is why crime is seldom prevented. They also understand that their powers of investigation are strictly limited by Constitutional protections extended to all Americans in their acts in this country.
That is why the FBI is particularly unsuited to take on the responsibility of interrogating terrorists and preventing terrorism. If the object of your work is to find out who did what to whom so you can present sufficient evidence to a court to demonstrate that a crime has been committed, you have all the time in the world to bond with someone who might have the information you seek. There is no urgency. If you can otherwise hold him, you can take as long as you want to see if you can tease information out of him that will help your case.
But that is not the nature of the terrorist threat. While we want to catch those who commit terrorist acts and convict them of their crimes, we also know that unlike the normal common criminal who is a solitary actor doing a solitary act that is unlikely to be repeated, the terrorist is a part of a wider network intent on committing a multitude of murderous acts. That means they might have information that goes well beyond the discrete crimes they have committed and can tell us what crimes their organizations intend to commit.
Intelligence gathering, in contrast to law enforcement, is calculated to develop information that enables us to anticipate events before they occur. It is intended to determine what enemies are planning and to disrupt those plans even if we cannot prove, to a legal certainty, that the plans would ever have been carried out. That is the difference between the function of the FBI and that of the CIA. The FBI can act only on information that is so concrete that it would withstand the scrutiny of a federal judge charged with enforcing Constitutional norms. The CIA is not similarly constrained. Nor should it be.
In the first place, of course, foreign nationals operating in foreign countries are not entitled to American Constitutional protections. In the second, in questioning them, we are less interested in what they have done than we are in what their comrades intend to do. The object of that sort of interrogation is not what the FBI is organized or trained to do. But it is what the CIA was, as a matter of organizational culture, intended to do.
Terrorism is no longer a random, singular act. It can result in the murder of thousands, as we have seen. If there is any way to prevent it, the niceties of the legal system and the normal constraints imposed on those whose purpose is to solve crimes rather than prevent them, is something we can ill afford. If we have in our hands a member of an organization we know is planning murder, we do not have the plentitude of time we have when all we are seeking is information on acts already committed. That sense of urgency is something utterly absent at the FBI and the idea of getting information in sufficient time to prevent imminent acts is not something its agents are trained or predisposed to do.
That legal FBI culture runs counter what is necessary to prevent terrorism. It is well and good to speak of our “highest Constitutional ideals” when all we are doing is talking in the abstract. But real world threats from uncivilized people do not easily admit of civilized treatment. They must be addressed in a way that preserves life first and ideals second. The FBI is required by law to observe Constitutional norms and engage only in those practices that are permitted under American Constitutional law. That is the law that applies to American criminals committing crimes in America. That means those in the FBI’s custody must be handled with more sensitivity to rights than might be appropriate in the exigent circumstance of imminent threat. That cultural disability means that the FBI cannot apply the sort of pressure it must to develop information that will prevent crime from occurring. Its culture is backward looking not forward looking and is intended to solve rather than prevent crime. It would demand a cultural change of monumental proportions to make the FBI competent to handle what it has been given by President Obama, not to mention some amnesty from the demands of Constitutional protections.
We have recently been treated to several opinion pieces by former FBI agents self-righteously telling us that their more delicate methods of extracting information yielded more information from terrorists than the CIA’s more brutal techniques. Easy for them to claim since they know the CIA cannot release the information that would prove otherwise. I know I will be criticized for having the indelicacy to mention it, but the FBI was not even on the trail of the 9/11 hijackers when they murdered three thousand Americans and it is the FBI’s task to keep us safe within the borders of the United States. Isn’t it? So much for the FBI’s protective abilities.
It is worth noting, too, that the FBI has utterly failed to prevent the growth of MS-13, a violent international street gang or the invasion of the American Southwest by Mexican drug cartels. So, on what basis can it claim to have protected the American people from harm in any venue? If it can’t even prevent street gangs from operating with impunity, what makes us think it is up to the task of taking on al Qaeda?
It is not my purpose here to list the FBI’s enormous failures over the past 15 years. It is to point out that it is unsuited by training and predisposition to undertake the serious task of interrogating terrorists and preventing their fellows from carrying out their murderous plans. It is the victim of a culture that is neither intended nor able to prevent crime and, so far, it has amply demonstrated as much. The administration’s shift recklessly exposes the American people to harm and irresponsibly thwarts the efforts of the only agency set up to limit that exposure.
When American lives hang in the balance, it is not enough to tell us we have treated terrorists with sensitivity to our highest ideals. We want to know that those charged with keeping us safe have done everything necessary to carry out their charge. I am heartless enough to say that I am not in any way concerned for the comfort of those who might have information we could employ to protect Americans. And when thousands die and the FBI tells us that they treated those who had that information with the highest Constitutional consideration, I am realistic enough to say they will not be forgiven.
Family Security Matters Contributing Editor John W. Howard is a lawyer, specializing in corporate and business litigation who also founded a non-profit, public interest law firm specializing in First, Second and Tenth Amendment issues. Feedback: editorialdirector@familysecuritymatters.org.
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