The War on Terror and Measuring the Threat:
I've been enjoying the Opinio Juris blog debate on Ben Wittes's new book, Law and the Long War. I'm almost done with the book, which I have found a really excellent read: As with all of Wittes's work, it is thoughtful, balanced, and independent. But before posting some substantive response to the book, I wanted to flag a dynamic that I think is driving both the book and the blog responses to it: Assessments of the terrorist threat.

  My sense is that each person's assessment of the terrorist threat heavily influences where they come out on what measures the government should take in the war on terror. At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

  The big difference comes in assessing the terrorist threat. Those who favor the most aggressive measures such as torture, detention without review, and lots of surveillance tend to see the terrorist threat as very grave in the short to medium time horizon. They consider terrorism an existential threat to the country, and they conclude that any step that might avoid a successful terrorist attack is a worthwhile step to take.

  At the opposite end, the civil libertarian critics of the Bush Administration tend to see the threat as relatively modest in the short to medium time horizon. Al Qaeda can be dangerous, sure, but they're no more dangerous than lots of other threats the country faces. Al Qaeda is just a few dozen people, and they can't threaten the county in any real way. And even though they want weapons of mass destruction, the chances that they would succeed in a way that causes many thousands or millions of U.S. casualties is actually relatively remote. To believe otherwise is to fall for the Administration's fear-mongering.

  The different assessment of the threat explains why the two sides of the debate often talk past each other. To those who see the threat as grave, it is inconceivable that some would insist on playing by Marquis of Queensbury rules and be more focused on world opinion than the threat to American lives. To those who see the threat as modest, on the other hand, it is inconceivable that some would ignore the rule of law and recklessly injure our standing in the world. Each side tries to optimize social welfare based on its assessment of the threat, and each side thinks the other is shockingly uninterested in that goal.

  Of course, assessments of the threat are often not entirely rational. They follow instead from a set of ideological and psychological views that make people more or less willing to see the threat as grave or modest. But I do think that many of the reactions presuppose a particular threat level, and we could perhaps make some progress on the legal questions if we were able to reach some agreeement on threat assessment.
M (mail):
If "existential threat" means "threat to the existence of" could it _possibly_ be the case that terrorism could be an existential threat to the US? (The only way this even seems possible is if the wound was self-inflicted, but that's a different problem all together. Similarly, when terrorism is part of an insurgency or rebellion within a country the situation would be different, but you'd have to be insane to think that's the case we face or are likely to face in the US.) I don't doubt that _some_ people hold this view but it's so implausible that I think we should really doubt the judgment of anyone who does hold it.

Perhaps especially given the above point, I do think you're under-estimating the difference that other ideological factors make. If, for example, you're a strong nationalist or a committed "realist" (in the international relations sense) then non-citizens just are not deserving of the same moral consideration as citizens, and so torturing them (as they US has clearly been doing for some time) isn't as much of big deal as it would be for someone who thinks that basic (not all, of course, but basic) moral concerns apply to all people. This goes in to the balancing, of course, but not just into how serious one thinks the threat is. To ignore (or deny) this seems a significant mistake and confusion to me.
7.30.2008 11:08am
Grant Gould (mail):
Assessment of the seriousness of the threat is only half of the equation. There is also the assessment of the importance of the rights on the other half of the tradeoff.

I think that many of us civil-libertarian types would rather see ourselves and a few thousand of our closest friends killed by terrorists than to see the country pursue the course of arbitrary perpetual detention, internal movement controls, wholesale surveillance, and so forth.

Of course we may <i>also</i> believe that the terrorist threat is overstated. But that need not be the case to reach the conclusion that the "War on Terror" is a poor trade-off.
7.30.2008 11:12am
CFG in IL (mail):
[Corrected: Just a reminder, please send notes about typos and wrong words to the bloggers directly rather than posting them as comments We'll get them faster, and then we don't have to either delete the comment afterwards or confuse readers with it after the point has been corrected. Thanks.]
7.30.2008 11:16am
Brian Mac:

Of course, assessments of the threat are often not entirely rational. They follow instead from a set of ideological and psychological views that make people more or less willing to see the threat as grave or modest...we could perhaps make some progress on the legal questions if we were able to reach some agreeement on threat assessment.

Assuming that people's threat perceptions are surrogates for their values or ideological positions, it seems pretty ambitious to reconcile them, especially in such a politically polarised climate.
7.30.2008 11:23am
MarkField (mail):
I'm one of those who sees terrorism as a much smaller threat than, say, the Cold War (which WAS an existential threat). That said, I was a civil libertarian during the Cold War, and for the same reason:

"Time has proven the [wisdom] of our ancestors; for even these provisions [the Fourth, Fifth, and Sixth Amendments], expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troubled times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great [emergencies] of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence...." Ex Parte Milligan.

James Madison gets a lot of criticism for his Presidency because of the perception that he handled the War of 1812 poorly. But Madison was very proud of the fact that his Administration made no arrests of any American citizen during the War. That's because he believed in the strength of the fabric he wove.
7.30.2008 11:32am
T J Williams (mail):
People have been trained to think about national security threats in terms of established rules of conduct between nation states. Many have formed presumptions that nation states can be deterred by threats of force, cajoled by diplomacy and a desire for respect by the international community, or managed through systems of alliances.

But what about non-state actors or rogue states such as Iran or North Korea? Both rogue states have operated outside the norms of international conduct, have violated rules of sovereignty with terrorist acts and hostage taking, abuse of diplomatic immunity, etc. Always pushing the limits of what can be done without prompting consensus that military response is appropriate.

So there can be state and non-state actors now acquiring the means and displaying signs of having the will to exact extreme casualties among non-military populations. Let us suppose they act someday, with horrendous loss of life and property.

What responses would be available to states wishing to prevent a worldwide instability and possible decline to widespread barbarity? Would forces escalate to a massive retaliation with destructive weapons coupled with something resembling ethnic cleansing?

Some believe that the threat from current terrorism activity is greatly leveraged beyond the immediate results of attacks experienced to date, because future miscalculations by rogue states not responsive to normal deterrence, or by non-state actors with little to lose, could break apart the frameworks that provide worldwide security and relative stability.

Those who do not see the threats in those terms feel free to focus primarily upon maintaining the highest standards of individual human rights for those individuals rightly or wrongly believed to be part of terrorist networks. Others may see the tradeoffs differently.
7.30.2008 11:32am
Erick:
Every year there are about 15000 murders and 40000 people killed in car accidents in the US. That's 105000 murders and 210000 killed in car crashes since 9/11.

Its difficult to imagine a terrorist attack that could come even close to the annual numbers, let alone the larger totals. Why do people advocate such serious measures for a small theoretical threat when those measures are mostly inconceivable for much larger and regular sources of death and injury?

If its a balancing test, why is it so out of whack from the regular one people use?
7.30.2008 11:41am
Brennan:
Among other things, Prof. Kerr's point underscores why the combination of intelligence failures by the intelligence community and overselling (or misrepresenting) of available evidence by the Bush Administration in the run-up to the Iraq invasion has been devastating to the Administration. Essentially, the Bush Administration quickly squandered its most important long-term political asset: the trust (or at least, the temporary suspension of partisan disbelief) of Congress and the non-loyalist portion of the public.

So not only do the two sides talk past one another due to differing assessments of the threat, but the Administration -- and by extension the intelligence community it nominally controls -- lacks credibility when pushing their evaluations of the threat.
7.30.2008 11:42am
byomtov (mail):
I think this tradeoff misses an important issue - differences of opinion about the best tactics against terror.

For example, many critics of torture argue that it doesn't work, and may be counterproductive. So they will oppose torture regardless of how serious they think the threat is.

Similarly, some might attach more importance to international police cooperation, and therefore avoid alienating our allies. Or they might view certain tactics as actually helping terrorists recruit, thereby increasing rather than reducing the danger.

So even two people whose judgment of the threat's seriousness is equal might differ sharply on appropriate tactics.
7.30.2008 11:46am
Brian Mac:

Why do people advocate such serious measures for a small theoretical threat when those measures are mostly inconceivable for much larger and regular sources of death and injury?

Decent summary here.
7.30.2008 11:49am
alkali (mail):
At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

I can only speak for myself, but I think there are a substantial number of people who feel (as I do) that this debate is really a distraction.

If I could wave a magic wand to implement policies intended to limit terrorist risks, I would do something like (1) fully fund efforts to control nuclear materials, particularly from the former Soviet Union; (2) get serious about protecting American ports and chemical processing facilities; and (3) start writing checks to college students who can pass proficiency tests in Arabic, Pashto, Farsi, and other relevant languages.

All debate about the morality of torture aside, I don't think ripping out the toenails of Osama's limo driver and so forth would ever be a practically adequate substitute for doing those substantive things.
7.30.2008 11:49am
OrinKerr:
Erick,

I think the key differences are avoidability, disruption, and WMDs. On avoidabillity, bringing the number of car accidents to zero is impossible unless you prohibit cars. On the other hand, bringing the number of terrorists attacks just means finding the cell. On the question of disruption, just look at the effect of 9/11, which was "only" 3000 people. On the WMD front, loose nukes and bio attacks could cause more deaths.
7.30.2008 11:51am
Ubertrout (mail):
Orin, I agree with your analysis, but I do think that your analysis cuts the other way as well...those who oppose the "War on Terror" tend to feel that the Bush administration and the measures it has taken are very grave, and pose an existential threat to America (not literally, but in the moral sense). Those who tend to favor the Bush administration's approach feel that the concerns over invasions of civil liberties are overblown, and such invasions are in fact minor and justifiable.

This of course tracks people's views more generally on such matters as policing (for instance the divergent views on the fourth amendment track the same way).
7.30.2008 11:52am
Dr. Scott (mail):
It is obvious that some terrorists would use nuclear weapons, if they had any. The things are getting easier and easier to build. Eventually, they will have some. A small number of nukes in large cities could easily mean the end of the United States as we know it. This is not a short-term threat, but reasonably qualifies as "existential".

Are there really many people who think it's OK to torture non-US-citizens because they "count less?" I haven't heard from them. Of course, there is no credible evidence that the US has tortured anyone in the present conflict. Waterboarding as applied to KSM et. al. is not torture. Or if it is, then we need a new word to denote what "torture" formerly meant.
7.30.2008 11:53am
The Ace (mail):
Its difficult to imagine a terrorist attack that could come even close to the annual numbers

Really?


Similarly, the RAND Corporation released a study in August 2006 calculating the effects of a 10-kiloton device exploding shortly after unloading onto a pier at the ports of Los Angeles and Long Beach, the busiest in the United States. They concluded that 60,000 people would die at once, 150,000 would be directly exposed to hazardous radiation, and 2 to 3 million would have to relocate immediately because their homes would be hopelessly contaminated.

However, many of the city-busting hydrogen bombs produced during the protracted Cold War, and still in service today, are far more potent than 10 or 15 kilotons. Like 170 kilotons. Like the 550 kiloton warhead still quite common in the Russian arsenal. Like the B-83, America's largest warhead today, at 1,200 kilotons (1.2 megatons). That's about 100 times the explosive power of the bomb dropped on Hiroshima.

You can raise those PSR and RAND casualty estimates accordingly



Otherwise, political perceptions, affilations, drive this issue. Leftists are generally speaking anti-God, anti-human nihilists. Which is why they dismiss this stuff out of hand.

Finally, as someone who has worked extensively with the DoD you people have no clue as to what the threats actually are.
7.30.2008 11:56am
M (mail):
"Of course, there is no credible evidence that the US has tortured anyone in the present conflict."

If you believe that, you'll believe anything. There is quite definitive evidence that many prisoners held by the US have been beaten to death during interrogations in Afghanistan, for example. If _that's_ not torture, nothing is. Additionally, your second point helps make my point. We have been, and still are, perfectly willing to call what the US now clearly does to non-citizens torture. But you don't think it's torture when done by the US. It seems clear you think different moral standards apply to citizens and non-citizens. In fact, it's hard to think of a clearer example.
7.30.2008 12:00pm
Brian Mac:

I think the key differences are avoidability, disruption, and WMDs.

Disagree on avoidability: there's plenty of fairly obvious safety measures which, if implemented, could bring down road fatality rates. The fact that it's impractical to reduce the risk to zero is a red herring.

Same with disruption: those hundreds of thousands of deaths cited haven't been a significant source of disruption? Say, maybe to the families concerned? But you're right in that 9/11 had consequences beyond just the body count.
7.30.2008 12:01pm
PLR:
It is obvious that some terrorists would use nuclear weapons, if they had any. ...

Of course, there is no credible evidence that the US has tortured anyone in the present conflict.

Waterboarding as applied to KSM et. al. is not torture.

Or if it is, then we need a new word to denote what "torture" formerly meant.

You may want to reconsider recasting your opinions and predilections as exactly that, rather than as factual statements that are unverifiable or demonstrably false.
7.30.2008 12:03pm
therut:
Another problem is the public (most everyone) does not and will not have the information to know how bad the threat really is. But, politics will be played and people will vote in ignorance. There seems to be no other way around it. So partisian politics will trump the possible death of many or the torture of some or the percieved or real loss of some civil liberities. Personally, I have no control over what eventually happens I can just plan for the worst and hope for the best.
7.30.2008 12:03pm
Brian Mac:

Otherwise, political perceptions, affilations, drive this issue. Leftists are generally speaking anti-God, anti-human nihilists. Which is why they dismiss this stuff out of hand.

Glad we cleared that up.


Finally, as someone who has worked extensively with the DoD you people have no clue as to what the threats actually are.

For some wacky reason, people just aren't so trusting of government agencies' claims these days. Even when it comes to national security threats.
7.30.2008 12:05pm
Extraneus (mail):
Every year there are about 15000 murders and 40000 people killed in car accidents in the US. That's 105000 murders and 210000 killed in car crashes since 9/11.


This is certainly true, but I think a focus on death and injury in the abstract misses the real threat somewhat. Just look at what happened to the economy immediately after 9/11.

I realize this isn't exactly on point, but what if America is actually a very fragile country, in which many -- possibly most -- people could easily be cowed by a relatively few horrific terrorist attacks, say on schoolbuses or something similar, into agreeing to suspend freedom of speech, or other similarly bedrock principles? The Mohammed cartoon thing comes to mind as evidence of this type of cowardice, and I think it's entirely possible that we could find ourselves much influenced by far fewer than the number of car accidents which happen in a given timeframe, and an entirely changed country. I don't know if that qualifies as existential, but we probably shouldn't underestimate it.
7.30.2008 12:05pm
Houston Lawyer:
I would like to see the correlation of those who want to aggressively pursue terrorists to those who keep firearms for self defense and a similar correlation of those who eschew firearms and discount the perceived threat.

I think the vast majority of us (myself included) discounted the perceived threat while the World Trade Center was still standing. I don't know how you calculate the financial and emotional toll that that experience had on the country. You can't equate it to the risk of falling in the bathtub or falling asleep at the wheel of your car.
7.30.2008 12:11pm
Sarcastro (www):
Why aren't more people arguing about Terrorism being a threat to the Union? Cause then you can just say "The Constitution isn't a suicide pact" and get with the testicle shocking!

Course, the real threats are secret. Every high ranking Liberal (And RINO) denies it, cause they are self-hating humans. But true Conservatives know how close America comes to total annihilation every day! It's like 24, only real, dealing with the WHOLE COUNTRY, not just LA.

And Waterboarding is totally not torture! I call it "the drowny game" and I choose it over getting my fingernails ripped out 9 days out of 10!
7.30.2008 12:19pm
OrinKerr:
Disagree on avoidability: there's plenty of fairly obvious safety measures which, if implemented, could bring down road fatality rates. The fact that it's impractical to reduce the risk to zero is a red herring.


Like what?
7.30.2008 12:26pm
Michael B (mail):
"Among other things, Prof. Kerr's point underscores why the combination of intelligence failures by the intelligence community and overselling (or misrepresenting) of available evidence by the Bush Administration in the run-up to the Iraq invasion has been devastating to the Administration."

And,

"For some wacky reason, people just aren't so trusting of government agencies' claims these days. Even when it comes to national security threats."

By one measure, approval ratings for the Democratic Congress recently reached single digit figures for the first time since such numbers have been kept. So Nancy Pelosi & Co., much of it gaining impetus from BDS and related motivations, isn't high on the list of public trust either.
7.30.2008 12:26pm
libarbarian (mail):


Finally, as someone who has worked extensively with the DoD wets his bed in fear every night you people have no clue as to what the threats actually are.


I fixed it for you.
7.30.2008 12:31pm
eddiehaskel (mail):
I think that threat assessment is one part of the analysis. But characterization of that threat is also just as important. Let's assume that we know of a very specific cadre of extremists who have declared their intent to commit terrorist acts against this country. Would the proper response to such a threat be to declare a "war" against such a threat. Whether the threat is existential on a long or short term, characterizing the interdiction of such a threat as a "war" has very significant consequences that are beyond the temporal nature of the threat. Can any terrorist act in itself be repelled like an armed invasion by an army against which one could possibly wage a war? This is the fundamental problem: our constitution permits a contraction of rights during such a "war" but not merely because of a iminent but limited threat.
7.30.2008 12:32pm
rarango (mail):
Professor Kerr: good summary and I think your bottom line about irrationality is the take away point. For those proponents of an aggressive anti-terror policy is civil rights an issue? Not at all. That may not be the preferable answer for some, but it is the answer for some.

As for tactics against those bent on hurting us? If I were to array the threat of against the US, things like employment of weapons of mass destruction, and large scale causalty operations are increasingly unlikely.

we are, however a free society, so bad people can circulate at will within. What this means is, were I a policy maven, that we have to accept a certain low level of casualties from things like mass bombings. Not politically desireable, but still the reality.

My preferred course of actions against terrorist? No wide scale military operations; but small scale, MOSSAD like operations targeting terrorists--and their families--yes--with death and destruction. Targetted assassination; and other very unsavory tactics against people who are willing to blow themselves up to destroy innocents. No judicial review; no review of tactics. Now that is just my personal perspective, and I doubt I could ever sell any one on this program--but when you understand the underlying culture, then it is imperative that you employ such tactics or civil libertarians put the rest of an innocent population at risk. this burden falls directly on civil libertarians, IMO.

Thats the way I see it.
7.30.2008 12:34pm
Duncan Frissell (mail):
I will note again that WWI, WWII, and WWIII killed 6 people in the Contiguous US. WWIV has already killed more than 3000 since its 1968 start.

It's true that a certain type of person when under attack prefers to sit passively and hope it goes away while another type of person believes in hitting back hard.

Which type of person do you suppose gets attacked more frequently?

Existential threats to the US from the opposition do not merely consist of WMD strikes on the US. They also consist of interruptions in the supply of vital goods and services, the conquest and establishment of hegemonic regimes on the territory of former allies and the spread of these regimes throughout the non-US world.

The spread of the ideology of Marxism for example not only enslaved a majority of the world's population but it came to represent an existential threat to us and cost us a great deal of lives and treasure in small wars, defense expenditures, and income foregone because commies are so totally non-productive.

The Caliphate would cost us a great deal of lives and treasure in small wars, defense expenditures, and income foregone because Muslims are so totally non-productive (unless they're Indonesian).

Now some may think that the conquest of Europe, Asia, and Africa by Muslims is unlikely but they did manage to conquer 2/3 of the Roman Empire in 150 years.

I've no doubt that we could win a fight against the Caliphate but it would cost a lot more than our current expenditures not to mention the harm such a regime would do to the non-American part of the world. A little charity is good for the soul.

A push back against a small current attack is cheap and a good live-fire training exercise in any case.

It's also what a man should do but I suppose that argument is misdirected to the current audience.
7.30.2008 12:37pm
Oren:
On the question of disruption, just look at the effect of 9/11, which was "only" 3000 people.
Sorry Orin, I'm usually behind you in this blog, but you fail entirely in this instance for not using an average annualized figure.

Al Qaeda is the perfect example of a gambler that consistently loses only to score big once. Except that the rest of the world has bought into the gambler's mindset and focuses only on the win, never on the losses.
7.30.2008 12:39pm
Brian Mac:
Like what?

Here's a handy table of road-safety measures and their cost-benefit ratio.
7.30.2008 12:40pm
Adam J:
Extraneus- Interesting, so your argument is based on the premise that the USA is fragile and Americans are cowards?
7.30.2008 12:41pm
OrinKerr:
Sorry Oren, but you fail entirely in this instance to understand the comment that you are criticizing.

Best,
Orin
7.30.2008 12:45pm
Vermando (mail):
I'll buy it. Recognizing the limitations on nuance inherent in a blog post, I think the Professor provides real insight.

I say this because I initially disagreed, then saw that he correctly described my view of the terrorist threat and then extrapolated my position on the other issues from it. We all want to protest cause and effect in such situations - even If I believed that terrorism posed an existential threat, I still would view the other issues the way that I do - but a blog-post theory that can do predictive heavy-lifting deserves props.
7.30.2008 12:52pm
Nathan_M (mail):
I agree different risk assessments of the danger of terrorism is an important factor in explaining policy differences, and why the two sides of the debate are often baffled by each other.

I think another equally important factor is that people have different ideas of what measures will help combat terrorism.

To grossly over-simplify both sides, I think people supportive of the Bush administration tend to think there are a limited number of terrorists, and if we capture or kill them, or draw them into Iraq, we will make the United States safer. They are a group of evil people committed to the destruction of the Western way of life.

On the other hand, I think the other side of the debate thinks the majority of terrorists, at least at the recruitment stage, are motivated by more banal, and controllable, considerations. On this view, torturing terror suspects, and the invasion of Iraq tend to raise the risk of terrorism by increasing the number of terrorists.

So I think another important difference in the debate is that (again, to grossly over-simplify and use labels which are not entirely accurate), the left tends to think that some of the rights' proposed solutions to terrorism (torture/ enhanced interrogation, military strikes, greatly expanded surveillance, the war in Iraq) will actually tend to increase the danger of terrorism, while the right thinks the lefts' proposed solutions (criminal trials in civilian courts, expanding American soft power, attempting to address Muslims' grievances diplomatically) are hopelessly naive and will do nothing to make us safer, and in fact probably endanger us by tying the hands of our military.
7.30.2008 12:56pm
Anderson (mail):
I think this tradeoff misses an important issue - differences of opinion about the best tactics against terror.

My response exactly. The pragmatic argument re: torture isn't that terrorism poses little threat, but rather, that torture is a sorry-ass method of interrogation.

Think about it: we reverse-engineered SERE methods, which themselves were based on Communist interrogation methods, which were designed to produce false confessions.

Why would anyone in his right mind think that such methods were what we should be betting the safety of our country on?
7.30.2008 12:58pm
TomHynes (mail):
Orin, test your premise with an online poll of the readers:

Which of the following statements are true:

I.Terrorism is an existential threat to the United States and the way we live.
II. We should be more respectful of civil liberties as we fight terrorism.

A. I and II
B. Neither I nor II
C. I, not II
D. II, not I
7.30.2008 1:04pm
Duncan Frissell (mail):
many prisoners held by the US have been beaten to death

The total number who died under abusive questioning in Iraq &Afghanistan would appear to be 8 (if you can believe the ACLU). I don't know if that's "many".

Note that one CIA interrogator was killed by prisoners in Afghanistan.
7.30.2008 1:06pm
OrinKerr:
Anderson,

Your point about torture and methods is actually closely related to my point: You're not standing on principle, or flying the flag of justice, but rather just making a pragmatic call about the costs and benefits of a method in light of your assessment of what is needed and what works. That's my broader point: we're all pragmatists here, and what's driving the ship is our assessments of the facts.
7.30.2008 1:20pm
Bob from Ohio (mail):

They consider terrorism an existential threat to the country


I don't think the threat is "existential" yet I generally support the tactics to date.

I know the terrorists can't overwhelm the US but think trying to avoid repeats of 9/11 is in the national interest. I submit that is closer to the view of most who consider terorism a grave threat.
7.30.2008 1:20pm
ichthyophagous (mail):
Professor Kerr:

You say "My sense is that each person's assessment of the terrorist threat heavily influences where they come out on what measures the government should take in the war on terror." Obviously right.

Rather than making the assessment question one for lawyers alone, suppose we went to the people? The issues of coercive interrogation and the rights of terrorist suspects do not seem to have much visibility with the voters.

My instinct is that most people would prefer security to equal rights for accused terrorists. That is, they want to go about their usual business with no risk of being blown up.
7.30.2008 1:22pm
Erick:

I think the key differences are avoidability, disruption, and WMDs. On avoidabillity, bringing the number of car accidents to zero is impossible unless you prohibit cars. On the other hand, bringing the number of terrorists attacks just means finding the cell. On the question of disruption, just look at the effect of 9/11, which was "only" 3000 people. On the WMD front, loose nukes and bio attacks could cause more deaths.


Why are we talking about bringing things to zero? 1000 less deaths from murder is the same as 1000 less deaths from terrorism. And there are plenty of ways we could bring down the number of deaths from murders and car accidents. We could start with wiretapping all suspected criminals, that would certainly be effective. And then we could deny them legal representation which would increase conviction rates and do away with the need for generous plea bargains. We could start waterboarding anyone who causes a car accident. We could limit driving to people who submit to invasive measures like speed limiters, permanently installed breath testers, cameras and microphones in the cars to figure out who was at fault in an accident (so we can waterboard them, its not torture, so don't complain!).

What exactly do you mean by "just finding the cell." Is that supposed to be something that is easy to do? Is there just one cell?

9/11 was a serious outlier in terrorist attack effectiveness. Its also basically impossible to repeat. But if the question is what caused more disruption, 9/11 or 100,000 murders and 200,000 traffic fatalities, I think I'm very right. 9/11's disruptions were unusual and heavily publicizied, but that doesn't mean 100,000 people being murdered doesn't cause disruptions. Whole portions of cities off-limits to people who value their lives is a disruption. The hundreds of billions of dollars in economic losses every year from crime is a disruption. Billions in damages replacing cars and medical care for injured people is a disruption. Hours spent in traffic because of car accidents is a disruption. We're just used to the disruptions that are caused by regular crime, that doesn't mean we shouldn't weigh them against the disruptions of terrorism.

As for WMDs, I think the nuclear threat is severely exaggerated and mostly the stuff of Hollywood. Nukes are actually really hard to get or make, there are entire nations that do not have the ability to make them. They also tend to kill the people handling them if they're not very careful. Bio threats also are mostly Hollywood, at least the really serious ones. Like nukes, they're difficult to manufacture and tend to kill the people handling them if they're not extremely careful. What is the credible biological threat that is going to kill 300,000 people? Its apparently going to have to be really good, because West Nile, SARS, and Bird Flu were supposed to be the next smallpox but it turns out the ability of diseases to spread was severely overstated.
7.30.2008 1:23pm
libarbarian (mail):


Why would anyone in his right mind think that such methods were what we should be betting the safety of our country on?



Because anyone who listens to these people can tell that they don't care about protecting our country nearly as much as they care about hurting people they don't like.
7.30.2008 1:23pm
Sk (mail):
Aside from the mischaracterization,the strawman argument, and the failure to understand human motivation, not a bad post.

"Those who favor the most aggressive measures such as torture, detention without review, and lots of surveillance tend to see the terrorist threat as very grave in the short to medium time horizon. They consider terrorism an existential threat to the country, and they conclude that any step that might avoid a successful terrorist attack is a worthwhile step to take."

I suppose this may describe one or some people's view. I have never met anyone who subscribes to it, and suspect it is a left-wing caricature rather than a geniunely held viewpoint.


"They consider terrorism an existential threat to the country"

Does anyone actually believe this? I suspect there are some that claim to believe it, but really? The only existential threats to the country that have ever occurred were the Revolutionary War and the Civil War (and the hypothetical Cold War turning Hot). WWII was not. I bet there are plenty of people who think a nuclear attack may occur, which would kill at least tens of thousands and a city. But I'm sure there are very few who think the country is facing a post-apocalyptic future from the GWOT.

"Those who favor the most aggressive measures such as torture..."

Again, I suppose there are some that 'favor' torture. I've never met them. Instead, most of the pro-action GWOT folks favor some type of aggressive detention activities (waterboarding, stress positions, etc) that they don't accept as torture. This is debatable (I personally don't always agree with them, but that's not important), but it is not the same as 'favoring torture.'

And as far as the prisoners beaten to death in Afghanistan? Are there really people who 'favor' that? That are glad prisoners were beaten to death in Afghanistan? Perhaps a few, but not many. More realistically, there are many that support GWOT in spite of these cases (just as there are many who supported the US in WWII, in spite of similar cases of prisoner abuse). War is an ugly thing. Ugly things happen during them. I'd guess most who support GWOT support it IN SPITE of those ugly things-they don't approve of those ugly things. (I'm glad there are police, IN SPITE of the fact that some police are crooked. I don't support police, and support police corruption, for instance. I'm glad the US won WWII, IN SPITE OF cases of prisoner abuse-I don't support those cases. And so on.).

Furthermore, there are plenty of people (Nationalists or Patriots, depending on your own viewpoint) that would like the US to win because they think we are the good guys, regardless of the level of threat (existential or otherwise). They aren't motivated by personal threat perception. For example, there are about 2 million people in the armed forces of the United States (active and reserve). I seriously doubt those 2 million people are the top 0.66% in terms of personal threat perception from terrorism (for instance, a farmer from Montana, who enlists in the army, does not necessarily 'fear' terrorism more than a tap dancer on Broadway, or a politician in Washington, D.C.-where the terrorist threat is objectively more likely). In fact, it is a preposterous belief.
So why would one argue that those who support GWOT are those most likely to fear the consequences of losing GWOT? An equally preposterous belief.


"At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures."

At bottom, I doubt if many in this debate are pragmatists. Most either want the US to win (or not win)(even if they don't know exactly what 'winning' means), and public safety has only an indirect impact on their perception of the threat to civil liberties.

Sk
7.30.2008 1:40pm
Bart (mail):
I would suggest that the nation does not need to be subjected to an existential threat to treat al Qaeda and its allies' war against the United States and its allies as a genuine war. Rather, this war is similar to the Barbary Pirate Wars between 1801 and 1815 with the small, but significant possibility that this latter day band of pirates can obtain and use WMD against our country. Now as then, it was impossible to effectively employ domestic law enforcement overseas to deal with these pirates and we were compelled to send over the military to eliminate the threat.

The evidence is already pretty much in concerning the relative effectiveness of waging military war against the enemy vs. sending the FBI overseas to arrest them as if this were an episode of Law and Order.

For nearly a decade between the 1993 WTC attack and 9/11, we employed only law enforcement resources against the enemy without any noticeable affect on their operational capabilities. Indeed, al Qaeda achieved the pinnacle of its operational capability with the 9/11 attack.

Since we went to war after 9/11, the United States has largely destroyed al Qaeda and its allies across the world and prevented any significant terrorist attack against our civilians and interests outside of the war zones of Iraq and Afghanistan for the past few years. Currently, in those war zones, al Qaeda has been completely cleaned out of Afghanistan (our problem is with the local Taliban) and Iraq is pacified to the extent that Mr. Obama is campaigning there in rolled up sleeves and our casualties in July will be the lowest in the entire war.

In sum, the United States is close to winning a strategic military victory against al Qaeda and its allies, if it already has not done so. al Qaeda only survives in any significant numbers in the Pakistan border region and in parts of North Africa and no longer appears to have a significant capability to launch effective international attacks. What remains is the necessity of finishing off the remnants of al Qaeda in Pakistan and bring the only surviving enemy commanders of the pre-war era - bin Laden and Zawahiri - to justice for 9/11.

Isolationist critics of waging war and treating the enemy like military combatants instead of civilian criminal suspects are now beginning to offer the vastly degraded enemy threat brought about by the use of military force as an oxymoronic argument against treating this as a war. Instead, the vastly reduced threat is pretty conclusive evidence of the success of the military model and the failure of the pre-existing law enforcement model.
7.30.2008 1:42pm
libarbarian (mail):

My instinct is that most people would prefer security to equal rights for accused terrorists. That is, they want to go about their usual business with no risk of being blown up.


1. Thanks for being one of the very few people to at least acknoqledge that they are ACCUSED terrorists and not just "terrorists".

2. I have no respect nor care for the beliefs or even lives of people who are such subhuman cowards that they think their own security is worth torturing innocents wrongly accused. They are animals and their opinions don't count.
7.30.2008 1:42pm
byomtov (mail):
Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

This is an overstatement. Sure, even in combating ordinary crime we make this tradeoff. But I think it's a mistake to think that this is a fundamental issue in the battle against terror. It's entirely plausible that there are highly effective methods that do not require much in the way of a civil liberties tradeoff.

In other words, your presumption is that to be effective against terrorism we need to sacrifice significant civil liberties. Therefore, those who view the threat as extremely serious are more willing to sacrifice those liberties, while those who oppose such sacrifices do so because they don't take the threat so seriously.

But this is not true. Those who agree about the threat may still disagree about tactics.

An experienced interrogator who tells us that torture is ineffective, and that trying to establish rapport with the prisoner works better is saying, among other things, that the tradeoff you describe does not exist in this scenario. Indeed, the best strategy is exactly oppsoite of what your tradeoff notion suggests.

How great an impingement on civil liberties was needed in the Cold War?
7.30.2008 1:49pm
Brian Mac:

At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

The big difference comes in assessing the terrorist threat.


I'm not so sure about pragmatism as the motor. What's happening is a classic case of two conflicting sacred values (public safety vs. civil liberties). Sacred values demand an absolute and inviolable commitment to them. So what happens when two of them come into conflict? People often deny the very conflict, and refuse to recognise the need to trade-off between the two (so that they can maintain the fiction that they follow moral absolutes).

How does this apply here? Well on the one hand, those with a greater ideological commitment to civil liberties downplay the terrorist threat, at times claiming it's being manipulated by a government keen to expand its powers and suppress dissent. On the other hand are those claiming that the restrictions on civil liberties are negligible, generally only affecting terrorists, and in any event, are nothing compared to what the restrictions which would follow under the Caliphate.

I'm sure there's plenty of people in the middle who accept the need to make a painful trade-off, but not so for the partisans on either side.
7.30.2008 1:51pm
Brian Mac:
Thanks byomtov!
7.30.2008 1:52pm
Bart (mail):
libarbarian (mail):

Bart, Thanks for recycling every moronic urban legend about the history of the war on terror. It would have taken me hours to cram that much bullshit into a single post, but you saved me the time.

Of course, then there are those opponents of the war who simply deny all reality, which makes it rather difficult to have a conversation of any type.
7.30.2008 1:52pm
Bart (mail):
Finally, in order to balance the utility of an action to enhance national security against the action's abridgment of civil rights there must be civil rights to abridge. Foreign enemies have no civil rights to abridge, excepting those the Boumediene Five decide to create for the first time in history, of course.
7.30.2008 2:09pm
Sarcastro (www):
World War II was pretty sweet ( loved the ending!), so I totally love the idea of upgrading some other stuff to make sequels.
7.30.2008 2:12pm
Sarcastro (www):
[Deleted by OK. Sacastro, in this thread you are repeatedly crossing the line from being funny to just being an ass. If you want to comment here, stay on the funny side of the line.]
7.30.2008 2:21pm
J. F. Thomas (mail):
Again, I suppose there are some that 'favor' torture. I've never met them. Instead, most of the pro-action GWOT folks favor some type of aggressive detention activities (waterboarding, stress positions, etc) that they don't accept as torture. This is debatable (I personally don't always agree with them, but that's not important), but it is not the same as 'favoring torture.'

Actually a lot of people who regularly comment on this site favor torture. And just because others use euphemisms for torture or believe the lies of the president when he says "we don't torture" doesn't change the fact that under any reasonable definition of torture, the methods the government has acknowledged are indeed torture and some detainees have been tortured to death even if the torturers responsible were not specifically authorized by the government.
7.30.2008 2:27pm
Happyshooter:
I have no respect nor care for the beliefs or even lives of people who are such subhuman cowards that they think their own security is worth torturing innocents wrongly accused. They are animals and their opinions don't count.

Okay, which people who have been harshly interviewed/beaten/waterboarded/tortured are innocent?
7.30.2008 2:31pm
David Warner:
Nathan_M:

"the right thinks the lefts' proposed solutions (criminal trials in civilian courts, expanding American soft power, attempting to address Muslims' grievances diplomatically) are hopelessly naive and will do nothing to make us safer, and in fact probably endanger us by tying the hands of our military."

The "right" may, wrongly, think that. The much larger and more influential non-left tend to think that such measures alone are unlikely to be effective. As part of a comprehensive approach, they very much recognize the importance of American soft power, for instance (they call it winning hearts and minds) and they have been mystified and disappointed (to put it diplomatically) to see so much of America's soft power turned on the American effort itself so soon after 9/11.
7.30.2008 2:32pm
Happyshooter:
Actually a lot of people who regularly comment on this site favor torture.

I also favor taking counter-hostages, and reprisal killings.
7.30.2008 2:33pm
Bart (mail):
libarbarian:

Military actions were more sparingly used but they were used - Bill Clinton's stupid, but definitely not "police", cruise missile strike against them being one obvious example.

I presume you are referring to Operation Infinite Reach on August 20, 2008, where President Clinton ordered cruise missiles launched against a Sudan's primary pharmaceutical factory on an unsubstantiated report that al Qaeda and Iraq were building chemical weapons there and against four largely abandoned al Qaeda training camps in Afghanistan killing an handful of foreign Arabs.

Given that Mr. Clinton and his team refused to authorize any of multiple opportunities to launch cruise missiles to kill bin Laden and his officers in Afghanistan when we had solid intelligence and only took ineffective military action with poor intelligence to coincide with his intern paramour's testimony in front of a criminal grand jury, forgive me if I do not consider this to be anything approaching a war against al Qaeda.
7.30.2008 2:34pm
Brian Mac:
In homage to Sk, I'm getting a t-shirt printed:

"I'm not into torture, I'm just pro-action"
7.30.2008 2:34pm
J. F. Thomas (mail):
Okay, which people who have been harshly interviewed/beaten/waterboarded/tortured are innocent?

We know for a fact (absolutely nobody disputes it) that a completely innocent taxi driver in Afghanistan was beaten to death by the U.S. military. Also an Iraqi General--who should have been afforded full POW rights under the Geneva Convention--was tortured to death in Iraq. I know you discount their statements but many of the detainees released from Gitmo claim that they were harshly interviewed, beaten, deprived of sleep, medical attention, etc.
7.30.2008 2:38pm
Tillman Fan (mail):
Isn't it possible to want us to win the war on terror, but at the same time disagree with and/or deplore the methods used to fight that war? I'm sick of hearing that I'm not manly or that I support terrorists simply because I think that our tactics are creating more terrorists than we capture or kill, or because I have a problem with laws (FISA, for example) being broken or ignored simply because of the perceived terror threat.

The Republican Party that I supported supposedly prized the "rule of law." The events of the past 7 years reflect that is no longer true.
7.30.2008 2:40pm
Brian Mac:

I'm sick of hearing that I'm not manly

Which only goes to show how much of a girl you are.
7.30.2008 2:42pm
J. F. Thomas (mail):
I'm sick of hearing that I'm not manly or that I support terrorists

Not only that, you're a commie too--and you hate our troops!
7.30.2008 2:43pm
MarkField (mail):

Your point about torture and methods is actually closely related to my point: You're not standing on principle, or flying the flag of justice, but rather just making a pragmatic call about the costs and benefits of a method in light of your assessment of what is needed and what works. That's my broader point: we're all pragmatists here, and what's driving the ship is our assessments of the facts.


I think this changes the level of focus. I understood your original point to be directed to the level of threat. This comment in response to Anderson shifts down to a pragmatic evaluation of the particular tactics.

I understood your original post to say that evaluation of the threat controlled the tactics someone is willing to employ. Anderson pointed out that even if we agree on threat, we can disagree on tactics.

You may be right that in both cases pragmatic concerns determine the outcome, but shifting levels creates the risk that the analysis gets tautological.
7.30.2008 2:47pm
Frater Plotter:
At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

Nothing could be further from the truth.

Some people, for instance, recognize that the degradation of civil rights (and, more to the point, human rights) does not improve security.

At best it simply shifts the risk: instead of being at risk of property damage, injury, or death by terrorists, we are at risk of property damage, injury, or death by government. More innocent Americans are injured or killed in a year by police than by terrorists, after all, and the breakdown in respect for human rights only threatens to increase the number of innocent victims of government violence.

But that's just a best case. Worst case, the degradation of civil and human rights also increases the risk of terrorism. It does not in fact accomplish its stated goal. It inspires greater hostility towards the United States, recruiting members to the terrorist cause. It leads to civil unrest among our allies, weakening their ability to help us. It makes it more likely that our enemies will fight to the death (or use suicide attacks) rather than surrender, since they correctly believe that they may be tortured to death if taken captive.

Weakening civil and human rights does not strengthen us in a struggle against barbarism. It weakens us. It also makes us more like our enemies. If the whole point of the struggle is to advance freedom and roll back tyranny, then for our side to become more like the enemy -- less free and more tyrannical -- is directly counterproductive.
7.30.2008 2:55pm
Angus:

Since we went to war after 9/11, the United States has largely destroyed al Qaeda...
In sum, the United States is close to winning a strategic military victory against al Qaeda and its allies, if it already has not done so.

Except for the part that al Qaeda has grown in size since 2003.
7.30.2008 2:58pm
Wince and Nod (mail) (www):
A slightly different pragmatic argument is that terror is not the only threat we face and that there will be new threats we have not imagined. For me the biggest problem with those who are overly aggressive in their defense of some civil liberties (while ignoring others) and overly aggressive in pursuing some people whose actions might degrade civil liberites (while ignoring others) is the precedents and restrictions and their effect on all national security situations, both present and future. I am not in favor of letting lawyers run wars. I am not in favor of criminalizing national security behavoir to the point that our people believe that they will be accused of breaking the law no matter what they do.

In my workplace the little people are now being constantly reminded they face possible termination and jail time for destroying records (deleting emails!) either too soon or too late - according to arcane and instructable rules - not to mention the horrid Sarbanes Oxley mess, and the many diversity and inclusion rules which appear to be designed to make us all live in fear of ever speaking to our fellow employees.

Considering how poorly copious quantities of vague and conflicting laws work at preserving our civil liberties and our personal security at work, I'm not pleased with the notion of using the same methods to govern national security.

We would be well served to reduce the number and complexity of our laws, not vice versa.

Yours,
Wince
7.30.2008 3:06pm
J. F. Thomas (mail):
We would be well served to reduce the number and complexity of our laws, not vice versa.

It is not those of us who are steadfastly against barbaric interrogation techniques and the suspension of cherished rights who had to invent new terms ("enhanced interrogation techniques") and fanciful interpretations to justify what they were doing.
7.30.2008 3:12pm
Richard Aubrey (mail):
In my experience with BDS sufferers, the threat perception varies according to the likelihood that it will or will not support a proposed or ongoing action by Bush.

An existential threat to the US is, as others have said, not likely. An existential threat to tens of thousands of my fellow citizens is a big deal, 'scuse me all to hell.

What, exactly, are the Muslims' concerns? That we exist seems to annoy just about ten percent of them. "We do not fight to get you to give us something; we fight to eliminate you."

Twelve percent of those surveyed thought the Toronto Eighteen's plot to blow up Parliament was a good idea. Canada is probably the world's most welcoming country for Muslims. What are their concerns to be addressed by diplomacy?

OBL claimed that US troops on the holy soil of SA was the reason. Lie. The US is gone and the al Q is still attacking SA. Anything they don't want us to do is a "concern", until we address it and they move on to something else.

I object to having a Beslan in this country, 'scuse me all to hell. Even if the nation does not disappear because of it, and even if my kids and grandkids aren't the unlucky ones.
7.30.2008 3:20pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 07/30/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
7.30.2008 3:22pm
PLR:
The indefatigable Bart:
Foreign enemies have no civil rights to abridge, excepting those the Boumediene Five decide to create for the first time in history, of course.

Demonstrably false of course, since we know that the "foreign enemy" Zacarias Moussaoui enjoyed the right to counsel, the right to confront witnesses, the right to a speedy jury trial, the right against self-incrimination, and on and on.

But in what sense are the Boumediene Five an enemy of the United States?
7.30.2008 3:24pm
Michael B (mail):
Those several arguing via caricature and simplistic, stylized manichean scripts are original, insightful, perspicacious and, above all convincing - or so they seem to be suggesting.

Pious simplisticus ideological fundamentalists strike again, lending their wit, wisdom and insight - and all of it for the benefit of the unwashed, who fail to be grateful. Harrumph.

The psychologies remind of some of the prominent themes in Andrew McCarthy's Willful Blindness: Memoir of the Jihad, or via something of an analogy or even a parallel, Kenneth Levin's The Oslo Syndrome: Delusions of a People Under Siege.
7.30.2008 3:25pm
J. F. Thomas (mail):
I object to having a Beslan in this country, 'scuse me all to hell. Even if the nation does not disappear because of it, and even if my kids and grandkids aren't the unlucky ones.

And by adopting Soviet and Russian tactics you think we will avoid a Beslan? Your logic is impeccable as always. No one has ever accused the Russians of being soft on terror or afraid to torture people, yet they suffer more from terrorism (and some of their former satellites are terrorist states) than we do.

I guess your response is the Russians just aren't tough enough. They, and we, need to be more like the Soviets. Nobody messed with them.
7.30.2008 3:27pm
Bart (mail):
PLR:

The indefatigable Bart: Foreign enemies have no civil rights to abridge, excepting those the Boumediene Five decide to create for the first time in history, of course.

Demonstrably false of course, since we know that the "foreign enemy" Zacarias Moussaoui enjoyed the right to counsel, the right to confront witnesses, the right to a speedy jury trial, the right against self-incrimination, and on and on.

We brought Moussaoui into our civilian criminal legal system and he was thus granted these rights. Quirin has not be reversed (yet) and held that enemy belligerents did not have the 5th and 6th Amendment rights we granted to Moussaoui.

But in what sense are the Boumediene Five an enemy of the United States?

I never posted anything of the kind. However, the Boumediene Five are in the process of causing extensive unconstitutional mischief to the centuries old prisoner of war law by arrogating to themselves the Article I and II powers expressly granted to the elected branched to set rules for captures.
7.30.2008 3:38pm
Oren:
Orin, now I'm confused. Whatever the meaning of your post (accepting that I completely misunderstood that meaning), it is disingenuous to compare a non-annualized cost to a recurring cost. When you look at the true annual cost of terrorism, even under the most aggressive assumptions, it pales in comparison to the mundane risks we gladly tolerate.
7.30.2008 3:39pm
The Ace (mail):

I fixed it for you.


wow, that was very witty.
7.30.2008 3:46pm
PLR:
However, the Boumediene Five are in the process of causing extensive unconstitutional mischief to the centuries old prisoner of war law by arrogating to themselves the Article I and II powers expressly granted to the elected branched to set rules for captures.

Can't respond to that sentence.
7.30.2008 3:47pm
The Ace (mail):
For some wacky reason, people just aren't so trusting of government agencies' claims these days. Even when it comes to national security threats."

Um, and then what?

I'm not talking about anything you would know about or the government "claims."

So, again, you do not have the foggiest clue as to what the threats are. Your opinions are formed from ignorance (and the safety provided by people whom you secretly despise) so tell us why we should listen to them?
7.30.2008 3:48pm
J. F. Thomas (mail):
I never posted anything of the kind. However, the Boumediene Five are in the process of causing extensive unconstitutional mischief to the centuries old prisoner of war law by arrogating to themselves the Article I and II powers expressly granted to the elected branched to set rules for captures.

The president has no one to blame but himself (well maybe Bybee, Cheney, Yoo et. al.) for any mischief done to the constitution. If these men had been treated according to modern military standards of conduct and procedure for the determination of status, had been interrogated according to the Army Field Manual and had been charged and tried according to the existing procedures under the UCMJ (like the uniformed military suggested) we probably wouldn't find ourselves in the mess we are in now.
7.30.2008 3:50pm
The Ace (mail):
And Waterboarding is totally not torture!

I'm glad we agree.

If you think waterboarding is torture then the term "torture" is meaningless.
7.30.2008 3:50pm
The Ace (mail):
Most of these actions, however, were covert and therefore not covered in the news which is why people like you and the editors of National Review didn't hear about them and can now run your mouths about things you know nothing about.

Don't lecture me about reality when you dont know what the hell you are talking about.


Um, if they were "covert" how do you know about them?

Further, list 2 of these "non police" actions.

I dare you.
7.30.2008 3:52pm
The Ace (mail):
Except for the part that al Qaeda has grown in size since 2003.

The same people telling you that said Iraq had WMD's.

And remember!
For some wacky reason, people just aren't so trusting of government agencies' claims these days. Even when it comes to national security threats."

Love the AQ talking point though!
7.30.2008 3:55pm
Brian Mac:
I'm sorry, Ace.

Let me try again:

For some wacky reason, people just aren't so trusting of the claims of anonymous blog commentors these days. Even when they're based on insider knowledge gleaned from working with government agencies, all of which have a stellar recent track record in collecting, processing and presenting intelligence on national security threats.

Now perhaps you'd like to point us all to where I voiced my opinions on the level of the threat posed, before I explain why you should pay attention to them?
7.30.2008 3:59pm
The Ace (mail):
Now perhaps you'd like to point us all to where I voiced my opinions on the level of the threat posed

I didn't say you did.

The point is, so you do not have the slightest clue as to the threat level posed, why should we listen to anything you have to say on this matter?
7.30.2008 4:01pm
The Ace (mail):
all of which have a stellar recent track record in collecting, processing and presenting intelligence on national security threats.

Um, please give us a rundown of the intelligence failures at DIA for example?
7.30.2008 4:03pm
The Ace (mail):
we probably wouldn't find ourselves in the mess we are in now.

Oh yeah, because I'm sure the disloyal opposition, with a significant base of people believing Bush/Cheney orchestrated 9/11, would have all shut up and played nice becasue they "support" the troops and everything.
7.30.2008 4:06pm
Anderson (mail):
Prof. Kerr, thanks for the response. But just because I suggest a pragmatic argument doesn't mean that your post's categories are well-drawn.

Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

Your premise seems to be that "aggressive measures" *do* "advance public safety," and that "everyone" balances this against the encroachment on civil liberties.

I reject that premise, at least insofar as torture and abuse (and, for that matter, invading other countries that don't harbor our enemies and haven't threatened us) are concerned. I do not accept that those advance public safety, and hence, there is no "balancing."

(This echoes some commenters' interpretations above, but I wanted to chime in on my own behalf.)
7.30.2008 4:07pm
Brian Mac:

The point is, so you do not have the slightest clue as to the threat level posed, why should we listen to anything you have to say on this matter?

Fair point. As I'm not privy to confidential government information, I shouldn't be bringing up or discussing previous intelligence failures, or the politicisation of national security, or the trade-off between civil liberties and national security.

Clearly, those are issues left to insiders, and not the commmon citizen.
7.30.2008 4:08pm
Richard Aubrey (mail):
J.F. I said nothing about tactics.
Sarc. Ditto.

Still, when, as in Canada, twelve percent of Muslims surveyed think blowing up Parliament is a good idea, and when a third of Brit-born young Muslims think killing for (their) religion is just dan and finedy, and when apostasy is a capital crime, we have more problems than a few nutcases hiding in the hills.

The feds have been busting various plots--see Goose Creek--and we can hope it's because the perps' co religionists are dropping the dime. But when, as in Canada, twelve percent sympathize, both active and passive support might be easy to find.

About a year ago, Kevin Drum publically asked himself why he wasn't publically scorching Iran for their internal policies which represented everything he loathed. He answered himself that, to him, if Iran looked bad, Bush looked good. And he wasn't going to do that. So Iran wouldn't be on his to-do list. I presume that will change if O is elected. That, plus some personal encounters, encourage me to believe that perceived, or admitted, threat perceptions rise and fall based on what they might justify Bush doing.
That, I submit, is crazy.

Brian Mac.
You missed his point. He's not saying you shouldn't speak. He's saying you're not worth listening to. Go ahead and speak. Not his problem.
7.30.2008 4:20pm
Angus:

If you think waterboarding is torture then the term "torture" is meaningless.
How about we waterboard you for a while and then see if you think it's not torture?

If Americans were waterboarded by our enemies, we would rightly denounce it as torture.
7.30.2008 4:29pm
Brian Mac:

Um, please give us a rundown of the intelligence failures at DIA for example?

Stop it. People are going to start thinking you're my sock puppet.
7.30.2008 4:34pm
Bruce Hayden (mail) (www):
I think that Orin hit the situation fairly close to the target. But also, as noted above, I also think that different people have different views of what should be primary, civil liberties or security, and so the debate is probably not just over the level of threat, since there are likely those (at least here) who are willing to accept lower security for higher levels of civil liberties.

The one thing though that doesn't seem to have been factored in, is people's views as to the administration running the government. I would suggest that those who are reasonably comfortable with and trust the Bush Administration are willing to trust it with more power than those who don't, and in particular, those who voted against him.

I see that in myself. I trust the Bush Administration, while I didn't trust the Clinton Administration, and I very likely won't an Obama Administration. Why? Partly because I have no real reason to question the motivations of those at the top of the Bush Administration, while I did Clinton's. Note the later's use of cruise missiles to divert attention from his Lewinsky affair. So, while I may have had CDS and distrusted that Administration with power, I suspect that those heavily into BDS distrust the Bush Administration with power that they would trust to an administration that they approved of.

And I don't really think that I am talking correlation, but rather causation here. I think that many who trust the Bush Administration here have always felt him to be an honorable decent human being, and many who don't trust him, never did.
7.30.2008 4:51pm
Richard Aubrey (mail):
Somebody, after Hitchens' recent article on waterboarding, suggested that torture is something that's so bad journalists don't volunteer to undergo it for an article.
What do you think?
7.30.2008 4:56pm
PLR:
If Americans were waterboarded by our enemies, we would rightly denounce it as torture.

Of course it is, it's a mock execution when properly done. It used to be called the Chinese water torture, and you don't even need a board, you just need to restrain the target of the mock execution somehow.

The military knows perfectly well it's torture, which no doubt is why you tend to see the more "free-lance" CIA around when such things happen.

Nice piece by Dahlia Lithwick in the latest issue of Newsweek incidentally.
7.30.2008 4:57pm
Colin (mail):
Michael B. in this thread:

Those several arguing via caricature and simplistic, stylized manichean scripts are original, insightful, perspicacious and, above all convincing - or so they seem to be suggesting.

Pious simplisticus ideological fundamentalists strike again, lending their wit, wisdom and insight - and all of it for the benefit of the unwashed, who fail to be grateful. Harrumph.

Michael B. in that thread:

Ideological fundamentalists - ideological fundies - are by far the most infamous, the most notorious, the most unconscionable of the lot. They rationalized and apologized on behalf of Stalin and Mao, they rationalized and apologized on behalf of Pol Pot, they rationalized and apologized on behald of Uncle Ho's "land reforms" and other purges, c. 1950-55 and beyond (and continue to do so, especially in the latter case). But more than rationalizing and apologizing for these regimes - they variously worked in support of such regimes and ideologies - which produced the manifold and manifest hecatombs of the 20th century. Even fascism, via Mussolini's decade-long embrace of Marxism and Marxist praxis, was spawned out of the Left, not the reactionary right.

Presently, they are serving to obfuscate, to blur the nature of the Iranian regime and the much wider war of ideas and regimes and Islamofascist, totalitarian interests in general. Politics as egoism; egoism as politics - and the delusions that result.

In other words, stop using simplistic, stylized, Manichean scripts, you liberal commie-fascists.
7.30.2008 5:21pm
ejo:
how about the simple fact that many of those decrying the current conflict have similar mindsets to that of Michael Moore-they think we deserved what we got on 9/11, only the hijackers should have tried to kill Republicans, not good Dem voting New Yorkers. They think if they just project understanding and empathy (Obama, anyone?) on our attackers, our attackers will realize their goodness and target Republicans. These folks, of course, are fools but they would represent the typical leftist. As an asider, I agree on torture-if any journalist volunteers to have it done, it ain't it. I don't see anyone lining up for the Daniel Pearl treatment.
7.30.2008 5:21pm
libarbarian (mail):

Given that Mr. Clinton and his team refused to authorize any of multiple opportunities to launch cruise missiles to kill bin Laden and his officers in Afghanistan when we had solid intelligence and only took ineffective military action with poor intelligence to coincide with his intern paramour's testimony in front of a criminal grand jury, forgive me if I do not consider this to be anything approaching a war against al Qaeda.


1) It certainly wasn't "police" so the fact that it doesn't equate to a full-on "war" against AQ doesn't change the fact that the claim that between 93-01 we ONLY used a "police" approach is simply wrong. We didn't. We used military force much more discretely (except when he had a BJ to distract the public from) and so most of it rarely made the news. That does NOT mean it didn't happen.

2) Clinton made bad calls, but refusing to strike when we had "solid" intelligence wasn't really one because we almost never had "solid" intelligence. There were times we had tips/leads that did turn out to be true and we could have got him but at the time those tips/leads looked no better than the false tips we also had in the past.

3) Sometimes you only get one shot at a guy and you have to try and pick the right shot or risk both wasting the shot AND tipping the target off that you know where he is. Clinton made mistakes and failed to take shots that might have paid off, but he did so for a number of reasons including the desire to not prematurely tip off Bin Laden, and not out of some 1-dimensional ideology that eschews military force. I won't defend Clinton - he did too little often too late - but he certainly did not restrict us to only "police" responses to terrorism.
7.30.2008 5:24pm
Angus:

Somebody, after Hitchens' recent article on waterboarding, suggested that torture is something that's so bad journalists don't volunteer to undergo it for an article.
What do you think?
I think that's the point of the Hitchens article. He volunteered to undergo it because at the time he believed it was not torture. After experiencing it, however, he emphatically changed his mind and said it was absolutely torture.
7.30.2008 5:32pm
ejo:
so, when the US rebuffed the Sudan's offer to turn over OBL, that was tactical. nice try, but when combined with the ignorant comments made abpve re bedwetting, you just sound silly. like many brave non-bedwetters, I am sure you were fearless on 9/11 and, should it happen again, would still be the same fearless soul you are today.
7.30.2008 5:35pm
erics (mail):
The "Daniel Pearl" treatment? Are we supposed to take you seriously?
7.30.2008 5:41pm
Chimaxx (mail):
"Still, when, as in Canada, twelve percent of Muslims surveyed think blowing up Parliament is a good idea"

I love how 60 Canadian Muslims (12% of the 500 interviewed) saying "Well, they must have thought they had some reason for wanting to do it," when asked about this then-year-old case, is trotted out as a sign of a credible Muslim uprising in Canada. The respondents to the question didn't say that the terrorist wanna-be's WERE justified, but rather that they had "a justification"--which they did: freeing Muslim prisoners.

The survey doesn't reveal how many of those 500 surveyed actually knew about the case before being asked the question.

In a world where 11% of people believe that Elvis is still alive, I have trouble getting exercised about 60 Canadian Muslims who believe that the would-be terrorists thought they were justified, even if they thought the plot itself was wrong.
7.30.2008 5:43pm
Chimaxx (mail):
Duncan Frisell:

It's true that a certain type of person when under attack prefers to sit passively and hope it goes away while another type of person believes in hitting back hard.

Which type of person do you suppose gets attacked more frequently?


We don't have to guess. The history of gang violence and generational feuds supplies the answer.
7.30.2008 5:44pm
Gary McGath (www):
You appear to be saying that principles play a much smaller role in the positions people take this area than in other areas. On what do you base this claim?

If people's positions were based primarily on assessment of the threat level, we'd see much more crossing over ideological lines with respect to the war on terror than with other issues. People with similar ideas but different evaluations of the facts would take opposite positions. I don't see any evidence that this is the case.
7.30.2008 5:46pm
The Unbeliever:
2) Clinton made bad calls, but refusing to strike when we had "solid" intelligence wasn't really one because we almost never had "solid" intelligence. There were times we had tips/leads that did turn out to be true and we could have got him but at the time those tips/leads looked no better than the false tips we also had in the past.
I will take this as a tacit acknowlegement to drop all the Bush-bashing foolishness about Tora Bora.
3) Sometimes you only get one shot at a guy and you have to try and pick the right shot or risk both wasting the shot AND tipping the target off that you know where he is.
I doubt anyone is very worried about wasting the cost of a cruise missile or two; so unless you have more info about these covert operations and protected intelligence sources than the general public, you'll pardon the rest of us for judging Clinton's ineffectual responses as, well, generally ineffective policies. Police actions plus a missile or two are still police actions--especially when acting as "the world's policeman" is a role partly earned by ownership of and willingness to use such hardware.
7.30.2008 5:48pm
Anderson (mail):
how about the simple fact that many of those decrying the current conflict have similar mindsets to that of Michael Moore-they think we deserved what we got on 9/11, only the hijackers should have tried to kill Republicans, not good Dem voting New Yorkers.

Apart from Ejo's being mistaken as to Michael Moore's professed beliefs, he is the only person I know who has personal familiarity with these 9/11-loving Americans.

Maybe you should hang out elsewhere, sir?
7.30.2008 5:48pm
Thomas_Holsinger:
Professor Kerr engages in straw man tactics in his initial post with this statement, particularly his use of the term "existential":
"Those who favor the most aggressive measures such as torture, detention without review, and lots of surveillance tend to see the terrorist threat as very grave in the short to medium time horizon. They consider terrorism an existential threat to the country, and they conclude that any step that might avoid a successful terrorist attack is a worthwhile step to take."
7.30.2008 5:52pm
ejo:
you missed Rev. Wright's comments-might want to take a look at them, they were in papers not that long ago. He was ecstatic-what was his phrase, roosters, squirrels, something coming home to roost. how about the truthers? never heard or read about them? Daniel Pearl treatment-it is a good way to distinguish between torture and what a fat drunk allows people to do to himself. with one, you get to go out for cocktails and a smoke afterward.
7.30.2008 5:59pm
Michael Edward McNeil (mail) (www):
Christopher Hitchens' waterboarding is indeed an excellent exemplar — as after he first subjected himself to the technique, emerging panic-stricken and sputtering — afterwards, uncertain whether properly mentally prepared he would be just as subject to the panic, he went through it again — emerging a second time to say, yup, it's torture all right.

How many people would put themselves on the medieval rack, say, or have bamboo slivers driven under their fingernails, to check if it really is torture — or, having done so, would undergo it again, because they're not sure the first time?

It sounds like Hitchens' actions, as opposed to his words, actually argue against the “torture” classification for waterboarding.
7.30.2008 6:08pm
Michael B (mail):
Somebody, after Hitchens' recent article on waterboarding, suggested that torture is something that's so bad journalists don't volunteer to undergo it for an article. What do you think?
"I think that's the point of the Hitchens article. He volunteered to undergo it because at the time he believed it was not torture. After experiencing it, however, he emphatically changed his mind and said it was absolutely torture." Angus
The point of the question is to note what Hitchens did not volunteer to go through. Hitchens did not volunteer for any type of process that, historically, would readily and without question and without debate be classified as torture. That's no mere coincidence, eh?

In broader terms, the point is to render aspects of the discussion accessible to rational inquiry. But hey, one is not so much as allowed to play devils advocate for purposes of rendering aspects of the discussion accessible to rational inquiry. The manichean script needs to be adhered to at all costs.
7.30.2008 6:09pm
ejo:
Many families have been devastated tonight. This is just not right. They did not deserve to die. ... If someone did this to get back at Bush, then they did so by killing thousands of people who DID NOT VOTE for him. Boston, New York, D.C., and the planes' destination of California — these were the places that voted AGAINST Bush.
Statement of 12 September 2001 attributed to Moore, as published in "Michael Moore, Humbug" by Kay S. Hymowitz in City Journal (Summer 2003)

doesn't sound like him, does it? I am sure he never said any such thing and never meant to imply that the terrorists should, rightfully, have targeted Repubs.
7.30.2008 6:15pm
Brian Mac:
Here's a wild thought - maybe Hitchens' somehow knew that he wasn't going to drown. And maybe that's a relevant point. Who knows.
7.30.2008 6:17pm
OrinKerr:
You appear to be saying that principles play a much smaller role in the positions people take this area than in other areas. On what do you base this claim?

I base it on about 7 years' worth of participating in debates on these issues with both experts and members of the public from a wide spectrum of views, writing articles about them, being on a National Academy of Sciences committee about them, testifying about them before Congress, etc. It's a consistent theme I have noted in hundreds of discussions with people of widely varying views, ranging from Bush officials to the ACLU and everyone in between, over a period of years.
7.30.2008 6:18pm
Wince and Nod (mail) (www):
What about this principle / practical response?

It's wrong to hobble people doing difficult and dangerous work with a myriad of incomprehensible rules which paralyse them with indecision when seconds count.

Well actually, it's wrong to hobble people doing any work with a myriad of incomprehensible rules which paralyse them with indecision or cause them to disrespect and ignore the rules entirely. It's a paradox, but detailed, carefully crafted laws designed to handle difficult situations cause people to lose respect for the law, since they are too difficult to follow and because people are frequently accused (which can be expensive and alarming), prosecuted (which can be much worse) and convicted (even worse), for doing things they thought were legal.

This is why speed limits are better than a 'reasonable and prudent' standard. You can tell when you are obeying the speed limit, but what exactly does 'reasonable and prudent' mean in my specific case.

Nobody can understand the NCAA rules or the tax code - even the people who enforce them.

Trying to define torture legally is about as easy as defining p-ography legally - and the 'I know it when I see it' varies from person to person. Generally, when people give me a definition I find that a restrictive interpretation would define imprisionment as torture.

Hard cases make bad law.

Yours,
Wince
7.30.2008 6:58pm
Anderson (mail):
He was ecstatic-what was his phrase, roosters, squirrels, something coming home to roost.

That is not actually true.

Because the stuff we have done overseas is brought back into our own front yard.

America's chickens are coming home, to roost. Violence begets violence. Hatred begets hatred, and terrorism begets terrorism.

[lower voice] A White ambassador said that, y'all, not a black militant.


Wright believed he was quoting someone else for the "coming home to roost" remark. And observing that blowback happens is not, of course, an "ecstatic" endorsement of that event.

The Bible says that he who lives by the sword shall die by the sword. Wright's recitation of American military incursions, with their consequent loss of civilian lives, was consistent with that.

In fact, his sermon was a good deal more Christian than most of what I've heard on the subject.

[/reality]
7.30.2008 7:03pm
Michael B (mail):
Colin,

Fancy this, you left something out of that comment from that other thread. Who'd a thought? The purpose was to respond to the following, from jukebox:

"Fundamentalists are fundamentalists, and the different flavors aren't that different."

If other words, the purpose was to respond to the absurdly reductionist - and conveniently forgetful - grouping of "fundamentalists" into an undifferentiated lump, while additionally excluding ideological fundamentalists from that category. Hence I responded in kind, as you note, as follows:

Ideological fundamentalists - ideological fundies - are by far the most infamous, the most notorious, the most unconscionable of the lot. They rationalized and apologized on behalf of Stalin and Mao, they rationalized and apologized on behalf of Pol Pot, they rationalized and apologized on behald of Uncle Ho's "land reforms" and other purges, c. 1950-55 and beyond (and continue to do so, especially in the latter case). But more than rationalizing and apologizing for these regimes - they variously worked in support of such regimes and ideologies - which produced the manifold and manifest hecatombs of the 20th century. Even fascism, via Mussolini's decade-long embrace of Marxism and Marxist praxis, was spawned out of the Left, not the reactionary right.

Presently, they are serving to obfuscate, to blur the nature of the Iranian regime and the much wider war of ideas and regimes and Islamofascist, totalitarian interests in general. Politics as egoism; egoism as politics - and the delusions that result.

But I can see why you omitted what you did. You and jukebox, close with one another?
7.30.2008 7:23pm
Anderson (mail):
Even fascism, via Mussolini's decade-long embrace of Marxism and Marxist praxis, was spawned out of the Left, not the reactionary right.

Read Jonah Goldberg much?

Try reading Mussolini. Lenin would've had anyone shot who published such a thing under his regime.
7.30.2008 7:36pm
Anderson (mail):
I don't recommend Mussolini's prose, but this part should suffice for present purposes:

That the vicissitudes of economic life - discoveries of raw materials, new technical processes, and scientific inventions - have their importance, no one denies; but that they suffice to explain human history to the exclusion of other factors is absurd. Fascism believes now and always in sanctity and heroism, that is to say in acts in which no economic motive - remote or immediate - is at work. Having denied historic materialism, which sees in men mere puppets on the surface of history, appearing and disappearing on the crest of the waves while in the depths the real directing forces move and work, Fascism also denies the immutable and irreparable character of the class struggle which is the natural outcome of this economic conception of history; above all it denies that the class struggle is the preponderating agent in social transformations. Having thus struck a blow at socialism in the two main points of its doctrine, all that remains of it is the sentimental aspiration-old as humanity itself-toward social relations in which the sufferings and sorrows of the humbler folk will be alleviated. But here again Fascism rejects the economic interpretation of felicity as something to be secured socialistically, almost automatically, at a given stage of economic evolution when all will be assured a maximum of material comfort. Fascism denies the materialistic conception of happiness as a possibility, and abandons it to the economists of the mid-eighteenth century. This means that Fascism denies the equation: well-being = happiness, which sees in men mere animals, content when they can feed and fatten, thus reducing them to a vegetative existence pure and simple.

You can't get less Marxist than that. Capitalism is more Marxist than fascism.
7.30.2008 7:39pm
Richard Aubrey (mail):
Nothing wrong with blowing up Parliament to free Muslim prisoners, right?

And a sample of 500 is absolutely too small to be useful. Can we count on that if the conclusion is one you like?

I think the point is that somebody who thinks blowing up Parliament to free Muslim prisoners is showing initial signs of being a problem.

My problem is that, if a city is nuked (does the ISI control Pak's nukes?), or if there is a Beslan, what you are complaining about in terms of rights will seem like small beer compared to what the citizenry will demand. It would be a bad time to be a Muslim or a member of the ACLU.

Not that it would be justified, mind you, just that it would...I don't know, happen. You know. As in, being real.

It would help in the rights department if you could dump your BDS long enough to acknowledge that a Pakistani calling a Pakistani and having the call routed through the US is not covered by the Fourth Amendment. We know you know better, but pretending seems to help you pile up Bush's sins. That works, until you're busted. Again.
7.30.2008 7:51pm
Michael B (mail):
I have read Mussolini, Anderson. For someone who just referenced Jeremiah Wright and, by extension, (former ambassador) Edward Peck, of all people, and does so as if they represent some type of authority - both secular and biblical authority it would seem - and then places it all under the rubric of "reality" w/o further ado, you don't come recommended very highly.

But more to the point, I didn't say the two totalitarian regimes of the 20th century - Marxist/Leninism and Mussolini's fascism - were identical in every respect. So the quote you offer misses the point. Indeed, I specifically emphasized Marxian praxis, rather than ideology as such, though there are similarities worth exploring on the ideological side of things as well. Nonetheless, praxis is what was emphasized.

Likewise, I notice you didn't question the fact of Mussolini's decade-plus, fervent embrace of Marxism and Marxian praxis.
7.30.2008 7:58pm
Joshua:
I see I'm late to the party here, so I very quickly skimmed over the other comments. Apologies if this point has already been made (though I don't think so, because I also did a search for the most operative words of my comment and didn't find them).

Anyway... it seems to me the assessment of a threat is a function of not just the likelihood of a "terror event" occurring, but also the acceptability of the risk of the terror event actually occurring. One way of thinking of it is:

Magnitude = Likelihood / Risk acceptibility

Indeed, it's been my observation that most threat-assessment disagreements tend to arise over the risk-acceptability factor rather than the likelihood factor. You would think that risk acceptability would be simply a direct function of the severity of the potential attack itself; i.e. the risk acceptability of a nuclear attack would be infinitessimal, if not absolute zero, whereas the risk acceptability of, say, a series of smaller attacks like the Unabomber or the D.C. snipers would be small but still considerably higher than that of a nuclear attack. But in practice, it doesn't work that way.

To make a long diatribe short and perhaps overly generalized, civil libertarians tend to all but ignore risk acceptability, focusing only on the likelihood of an attack and whether or not that likelihood justifies heavy-handed countermeasures. Meanwhile anti-terror hawks tend to take the opposite tack: They don't ignore likelihood per se, but rather they tend to regard the risk of any loss-of-life attack, no matter how great or small, as though it might as well be a nuclear attack. In other words, no matter how small the likelihood of an attack, the risk acceptability is always infinitessimal, and so the magnitude of the threat is always sky-high, regardless of likelihood.

Both sides' mindsets is perfectly understandable, and quite possibly unavoidable in the context of a liberal democracy. To even be perceived as regarding terrorism of any level of severity as anything short of an absolutely unacceptable risk is the kiss of death for any politician's career. If you're a civil libertarian, the only way to square that with the political demands of anti-terrorism is to gloss over risk acceptibility as a threat assessment factor. On the other hand, if you're an anti-terror hawk, your response is also a no-brainer: Simply invoke the precautionary principle each and every time.
7.30.2008 8:21pm
pluribus:
I find it hard to understand why this is regarded as an either/or question. I favor very hard and aggressive action to combat terrorists. I also favor very hard and aggressive enforcement of laws protecting human rights. The laws include our Constitution, statutes, judicial precedents, and treaty obligations. In case of conflict, the laws must prevail. If we are finally able to vanquish the terrorists, and I fervently hope we are, I want us to do so with our laws and national honor in tact, not in shreds.
7.30.2008 8:37pm
Elliot123 (mail):
"For example, many critics of torture argue that it doesn't work, and may be counterproductive. So they will oppose torture regardless of how serious they think the threat is."

I'm always intrigued when I see this claim. How does someone know torture doesn't work? Lots of people say it doesn't. Have there been studies where subjects were tortured? Who did it? When? Where? Who here thinks they could withstand torture?

So, what's the justification for saying it doesn't work.
7.30.2008 8:46pm
Anderson (mail):
For someone who just referenced Jeremiah Wright and, by extension, (former ambassador) Edward Peck, of all people, and does so as if they represent some type of authority

Uh, no. Reading is fundamental. I was correcting ejo's mischaracterization, and not citing either Wright or Peck as authorities (tho Wright cited Peck). Whatever your gibberishy first paragraph was supposed to mean, I can at least correct that part.

Previously, you wrote: "fascism, via Mussolini's decade-long embrace of Marxism and Marxist praxis, was spawned out of the Left." That's nonsense. Fascism was a reaction against Marxism (among other things), not a development of Marxism.

You could try reading the passage I quoted from Mussolini, which was actually reflected in his "praxis." There was nothing communistic or socialistic about Italy under Mussolini, any more than Nazi Germany was "socialist" because it was ruled by the leader of the National Socialist German Workers' Party.
7.30.2008 8:47pm
Wince and Nod (mail) (www):
Fascism was a reaction against Marxism (among other things), not a development of Marxism, by a socialist who promptly did very top-down hierarchical socialist things. Fascism was not anarcho-capitalism which is the opposite of Marxism. Fascism and Marxism are totalitarian police state close cousins, but like lots of close ideological cousins, they consider the differences to be heretical.

Yours,
Wince
7.30.2008 8:56pm
Chimaxx (mail):
Richard Aubrey:

Nothing wrong with blowing up Parliament to free Muslim prisoners, right?


Except, of course, that wasn't the question they were asked on the survey. They weren't asked if they thought there was nothing wrong with it. They were asked if there could be any possible justification for what the 18 would be terrorists had planned. You can't take the answer to the second, actual, question as a proxy answer to the first, no matter the size of the sample.

And a sample of 500 is absolutely too small to be useful. Can we count on that if the conclusion is one you like?


A sample size that small does raise credibility problems. In fact, the margin of error is 4.4 percentage points. That large a margin of error on that small a result suggests that it would be hard to sort out which of those 60 people really thought there was some justification and which ones misunderstood the question.

It would help in the rights department if you could dump your BDS long enough to acknowledge...


It took me a while to figure out what "BDS" was--had to Google it--and it mystified me, since I haven't mentioned Bush once. Nor had I mentioned wiretaps or the fourth amendment. Seems like you're the one with the Bush fixation--a kind of Bush Messiah complex.
7.30.2008 9:00pm
Thomas_Holsinger:
Joshua,

I believe a majority of Democratic voters disagree with this statement by you:
"To even be perceived as regarding terrorism of any level of severity as anything short of an absolutely unacceptable risk is the kiss of death for any politician's career."

Ask their prospective nominee.
7.30.2008 9:04pm
Michael B (mail):
Anderson,

Forget Wright and Peck then, though it seems doubtful you represented the other commenter accurately. The remainder of what you have to say, concerning Mussolini's fascism and his decade-plus embrace of Marxism and Marxian praxis immediately prior to developing and arguably becoming the primary intellectual and political leader of fascism, is all said in the manner of "not so, 'cause Anderson says so."

You may as well offer up the notion that Trotsky was not a true Marxist, or that Stalin wasn't, or that Lenin wasn't - all of it arguable, variously pro and con, to one degree or another.

By AJ Gregor, The Faces of Janus: Marxism and Fascism in the Twentieth Century, also, Mussolini's Intellectuals: Fascist Social and Political Thought, an excerpt from the latter, one available within the Amazon search engine for the book:

"Growing out of the Marxism of Georges Sorel and the positivism of Vilfredo Pareto, Fascism, as a set of ideas, was to dominate the European world of ideas for almost three decades."

Also:

"Whatever rationale for violence one does find in the doctrinal statements of the best of fascist thinkers is no more immoral than similar vindications found in the works of Marxists ..."

Also, Hitler and Stalin: Parallel Lives, by Allan Bullock. But there are many others reflecting a variety of analyses, emphases, insights both practical and ideological, etc.
7.30.2008 10:05pm
Joshua:
Thomas_Holsinger: I believe a majority of Democratic voters disagree with this statement by you [...] Ask their prospective nominee.

Who, it should be noted, is at the moment barely squeaking by his GOP opponent in the polls, despite a huge advantage in funding and media exposure, and a bad economy which should have been the kiss of death for the incumbent party's candidate. At least one liberal blog has noted that Obama's success thus far has been in spite of his perceived weakness as a commander-in-chief, not because of it.

I suppose I could ask him on November 5.
7.30.2008 10:07pm
Thomas_Holsinger:
Joshua,

You said, "any politician". Obama would have little problem being re-elected as Senator.
7.30.2008 10:32pm
SATA_Interface:
A great justification for torture not working - John McCain at the hands of the Vietnamese. Asked for names of officers, he offered the names of football players. After breaking his arms and other torture, he stood up for what he believed was right. The son of an admiral is a powerful propaganda tool, but they were unable to manipulate him in the manner that they wanted. He wouldn't give them actionable intelligence information either.

So who was saying that torture works to get actual factual information from people? No need to raise your hand...
7.30.2008 10:44pm
SATA_Interface:
Is the term applied to a patriot salivating at the thought of more torture labeled "cognitive dissonance" or simply a desire to hurt the class of people from which the terrorists hide within? Some would argue that the terrorists would encourage such jingoistic behavior to rally moderates over to the fundamentalists. That such animalistic behavior of revenge killing is simply turning into your enemy in an attempt to defeat him.
7.30.2008 10:47pm
Elliot123 (mail):
"So who was saying that torture works to get actual factual information from people? No need to raise your hand..."

I don't know who says it. In the McCain case, was he tortured 24 hours per day with the best the NVA could give? Did the NVA consider the names of the squadron members vital to their survival? Was someone else with similar information tortured, and the list of names compared? Would a single case of someone providing accurate information indicate that torture works?

But, consider the millions of people who have done whatever their oppressors told them to do. Slaves are an interesting case. The slave master beats, whips, and starves folks until they do his bidding. Is that giving into torture? What is the ratio of the slaves who successfully resisted to the slaves who gave in? Is beating and whipping torture?
7.30.2008 11:20pm
David Warner:
"So who was saying that torture works to get actual factual information from people? No need to raise your hand..."

Likely depends on the people (not to mention what you mean by torture). I don't think anyone across the political spectrum would disagree that McCain is a particularly stubborn son-of-a-bitch.

To the original question, I think the reason that people (especially those most ideologically committed) might perceive the differences in opinion on proper government responses to arise more from ideological differences than threat level is that (again, especially among those more ideologically committed) many have constructed an inaccurate picture of their ideological opponents.

Given such an inaccurate picture, such as, say, "Republicans are warmongers", it makes more sense to attribute Iraq to "right-wing ideology" rather than the administration's (and, evidently, 70% of the electorate, at the time) assessment of a threat level. Likewise, if one believes that the left wants to lose the war for political purposes, it makes sense to claim that court decisions that hamstring anti-terror efforts are made with that consideration in mind, rather than out of an assessment of threat lower than those advocating aggressive measures.
7.30.2008 11:41pm
Anderson (mail):
So who was saying that torture works to get actual factual information from people?

Richard Cheney, David Addington, and other freaks detailed in Jane Mayer's The Dark Side and other sources.

--Michael, give it up. Comparing the immorality of fascism and communism does not prove similarity. And because one author thinks fascism "grew out of" Marxism, I'm supposed to ignore the obvious evidence in Mussolini's own words and in the nature of his regime?

If you mean "developed from" in some antithetical sense, a la Hegel, then fine -- but that hardly seems to fit the tenor of your remarks.
7.30.2008 11:48pm
Michael B (mail):
Anderson, this sophomoric, "knowing" sense of yours, where half your statements or more amount to "trust me" reassurances or a bland dismissiveness, serves to gratify yourself and those who are already firmly or stolidly in your choir. They are legion, so regale in them all you care, but you're forwarding bullshit maximus and little beyond that. As to what you ignore, that's a telling source of bemusement as well. Nor was it one author; that I exampled but three volumes and two authors reflects a ready sample only of the wider corpus out there.

You're voting for the Rorschach candidate, right?
7.31.2008 1:25am
Chris Chittleborough (mail):
Is terrorism as an existential threat? It seems to me that terrorism is not an existential threat to the U.S. as a nation. It is possible (though not, I hope, at all likely) that a terror strike on the U.S. could kill tens of thousands of people and damage the economy of the U.S., but the U.S. is so big that it would continue to not just exist but dominate the world militarily, economically and culturally. What would cease to exist is American voters' tolerance for anything that impedes the fight against terrorism: the U.N., SCOTUS, the mass media, "liberals" in general and so on. Widely-held beliefs about the U.S. as a narrow-minded, arrogant and overbearing player in world affairs would suddenly become true, and we would live in a far more dangerous world. (For example: if someone nuked New York, and analysis showed the weapon was made in Iran, how much public demand would there be for Tehran to become flat and glowing?)

Radical Islamic thinking holds that the U.S. is already at war with Islam, so striking the U.S. would achieve a great clarification, forcing the corrupt (in their view) governments of the Islamic world to choose a side. At least some of them would trust Allah to bring the whole Islamic world to fight alongside them, and to bring them victory over the Great Evil.

So I conclude that while there is no existential threat to the U.S. itself, there is a real existential threat to the current international order. As an Australian living in a farming district, I'm (ahem!) no great fan of the way the U.S. currently treats the rest of the world, but I can see that things could get far, far worse.
7.31.2008 7:35am
Richard Aubrey (mail):
Chimaxx.
The question wasn't "Could those morons have conceivably thought they were right and justified?" That's a dumb question. Everybody thinks they're justified.
The question was about the attitude of the surveyed.
And my question about sample size is not whether 500 is enough. It was would 500 be sufficient if the conclusion was one you liked. My guess is...yup.
7.31.2008 11:48am
pluribus:
Chris Chittleborough:

[I]f someone nuked New York, and analysis showed the weapon was made in Iran, how much public demand would there be for Tehran to become flat and glowing?

Not sure I understand the problem here. I would assume that the doctrine of nuclear retaliation would cover Iran as well as Russia, China, Pakistan, North Korea, or any other state that might be foolish enough to launch a nuclear attack on the US. Would there be any necessity to think this one through? And would any third party fault the US for retaliating (immediately and decesively) in these circumstances?

I am curious by your "made in Iran." Can analysis show where a bomb was made without also showing where it came from? I would think the latter far easier to determine than the former.
7.31.2008 12:25pm
wfjag:
Dear Prof. Kerr:

I'm enjoying this thread immensely -- except for one point -- because it's a lively and generally civil discussion.

However, would you PLEAZZZZZE block David M and the link to Thunder Run (on this thread and all others). IF I want to check that site, I'll do so. I'm reading VC because of the quality and variety of the posts and comments, not to see spam. I get plenty of spam other places.

Thank you.
7.31.2008 12:26pm
Richard Aubrey (mail):
pluribus.
Analysis can show where the fissile materials were produced, since each production facility has, probably by accident, slightly different procedures and, possibly, slightly different raw materials. Something of the same was said by the FBI about their ability to track bullets' ownership by the composition of the lead, which turned out to be nonsense.
Anyway, there doesn't seem to be a way to analyze the provenance when the weapon passes through various hands. Or, rather, not through analyzing the byproducts of the explosion.
7.31.2008 1:13pm
jukeboxgrad (mail):
chris:

Is terrorism as an existential threat? It seems to me that terrorism is not an existential threat to the U.S. as a nation. It is possible … that a terror strike on the U.S. could kill tens of thousands of people … but the U.S. is so big that it would continue to not just exist but dominate the world militarily, economically and culturally. What would cease to exist is American voters' tolerance for anything that impedes the fight against terrorism: the U.N., SCOTUS, the mass media, "liberals" in general and so on. Widely-held beliefs about the U.S. as a narrow-minded, arrogant and overbearing player in world affairs would suddenly become true, and we would live in a far more dangerous world


I think you are hitting the nail exactly on the head. We are the most powerful military force in the history of the world. Our enemies have no hope of destroying us, unless they can get us to destroy ourselves. Their method of doing this is to scare us into acting un-American. And in this regard they have succeeded beyond their wildest dreams. I'm sure that they didn't imagine what bed-wetters we are.

Terrorism is used by those who are weak, and who are therefore not a real threat to us. Their only hope is to make us fearful. How fearful to be is a choice that we make. And what we do with that fear is also a choice. We have been making the wrong choices. We have been making exactly the choices our enemies hope we'll make.

What FDR said about fear, in his first inaugural address, has never been more apt.
7.31.2008 2:04pm
Richard Aubrey (mail):
juke.
So far, the terrs have made us afraid to deal with them briskly. It might get the liberals upset. Cue the screaming--"Wag The Dog"--and make the military look good.
The perps at Nuremberg did not get the protections the Gitmo goons are getting, yet the Gitmo goons are getting the sympathy as if they're being tyrannized by some kind of Gestapo. It's not as if educated people don't know better. It's that some of them really want to fool others.
For what reason?
How many people have said we have to look at ourselves to find out what the terrs' beefs are? A lot. A whole hell of a lot. As if looking at ourselves would answer what the terrs are up to in southern Thailand, or in the Phillipines.


Well, you can cavil about tactics, but after a Beslan--especially if homegrown--or if we get nuked, your objections will be unheard. In fact, if I were you, I'd figure out a way to distance myself from said objections. You might be hanging next to the local imam as being equally dangerous.

It would be better to avoid what Wretchard at Belmont referred to as the Three Conjectures. Because that would be very bad. Very bad, indeed, particularly to those who could be seen as facilitating the result. Besides the immediate victims, I mean.

None of this means I approve. One can warn of consequences without approving of the consequences, unless the warning might seem to impact a liberal. In which case, one is accused of approving of the consequences. (Sort of a pre emption here.)
7.31.2008 2:43pm
jukeboxgrad (mail):
the terrs have made us afraid to deal with them briskly. It might get the liberals upset


You say lots of funny things, and this is a perfect example.

For most of the years since it started, GWOT has been under the control of a GOP White House and congress. But your theory is that the GOP has been "afraid to deal with them [terrorists] briskly" because the GOP is afraid of what Cindy Sheehan and Barbara Streisand might say. Makes perfect sense.

If it's really true that we've failed "to deal with them briskly," then the fault lies with the GOP, since the GOP has been in charge. But this is typical for the GOP concept of responsibility: blame the war's failures (both real and imagined) on everyone except the people who sold and ran the war.

The perps at Nuremberg did not get the protections the Gitmo goons are getting


As usual, you have a lot of trouble getting your facts straight. "The perps at Nuremberg" got a prompt and fair trial. In contrast, at Gitmo we have held people for years without charges, including lots of people who appear to be innocent bystanders. That's explained here:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf). More proof that we lock up innocent people is here.

SC recently acted to protect these people because for years Bush has been trying reduce their protections to almost nothing, in violation of US and international law.

the Gitmo goons are getting the sympathy as if they're being tyrannized by some kind of Gestapo


You should tell us how you know that all the people we locked up are "goons." The vast majority have never been tried. So how do you know? Because your government says so? You would have made a good German.

You might be hanging next to the local imam as being equally dangerous.


Your eagerness to put on a brown shirt is unmistakable. Despite your feeble disclaimer.
7.31.2008 4:15pm
Richard Aubrey (mail):
Actually, juke, if der Tag came, I'd be reluctantly and distastefully trying to protect you. I'd hate myself in the morning, too. Because, should you survive, your first step would be to continue to oppose anti-terror tactics, even if you had to misrepresent what they are doing.
I thought I pre-empted the accusation that I must approve of a consequence I was predicting. I guess it didn't penetrate.
Many of those guys at Gitmo haven't been "proven" anything because they haven't been tried. Means nothing until they were tried. Ditto the Nuremberg perps. They hadn't been "proven" guilty of anything.
Much of the delay is because of folks trying to fight the entire process. You can't put people in front of a military tribunal if the entire concept is in dispute.
Not that this is new to you. Point is, it's not new to me, either.
7.31.2008 5:13pm
Dr. Scott (mail):
You may want to reconsider recasting your opinions and predilections as exactly that, rather than as factual statements that are unverifiable or demonstrably false.

Oh, is that the rule here? I couldn't tell :-)
7.31.2008 5:55pm
jukeboxgrad (mail):
richard:

even if you had to misrepresent what they are doing


This is how many times you've shown an example where I "misrepresent" something: zero.

I thought I pre-empted the accusation that I must approve of a consequence I was predicting.


Your fig leaf of a disclaimer was just as unimpressive as the one Cornyn used when he did something very similar.

Many of those guys at Gitmo haven't been "proven" anything because they haven't been tried


Exactly. But that doesn't stop you from calling them goons. Because your government tells you that's what they are, and that's all you need to know, right? Here's what that makes you: an authoritarian.

Much of the delay is because of folks trying to fight the entire process. You can't put people in front of a military tribunal if the entire concept is in dispute.


100% pure baloney. Show proof that Bush tried to put someone before "a military tribunal" or any other court and he was prevented from doing so by "folks trying to fight the entire process." These people haven't been tried for one reason: Bush has spent years trying to prove that he doesn't have to try them.
7.31.2008 9:10pm
byomtov (mail):
The big difference comes in assessing the terrorist threat. Those who favor the most aggressive measures such as torture, detention without review, and lots of surveillance tend to see the terrorist threat as very grave in the short to medium time horizon. They consider terrorism an existential threat to the country, and they conclude that any step that might avoid a successful terrorist attack is a worthwhile step to take.

I think one flaw in this is that it treats the "exchange rate" between the terrorism danger and civil liberties as solely a function of one's assessment of the terrorist threat. But people differ in their valuation of civil liberties also. So if if some violation could be shown, without any question, to reduce the risk of some terrorist act by, say, 5%, it does not follow that everyone would agree as to the desirability or undesirability of the violation.

Another flaw is that, while the first sentence is, I think, true, it is not true that all those who view the threat as very serious will favor the kinds of abuses you describe.

All this is in addition to my previous comments. In short, I think your formulation is way oversimplified and, frankly, sounds a bit like an attempt at rationalizing the testicle-crushers' views.
7.31.2008 11:54pm
Chimaxx (mail):
Richard Aubrey:
And my question about sample size is not whether 500 is enough. It was would 500 be sufficient if the conclusion was one you liked. My guess is...yup.


Perhaps I would be tempted to hype a statistic that tended to support my prejudices, even though the small percentage of a small sample with a relatively high margin of error. It's only human to want to see our preconceived notions endorsed-, and to overemphasize flimsy and ambiguous evidence in the process.

But then I would be the one in the position of being told that I was relying on data with the street value of a crackerjack toy as evidence. And I suspect that, unlike you, I would abandon it and look for better evidence to support my assertions.
8.1.2008 1:42am
Greg Q (mail) (www):
byomtov:

You miss several important points, which I cover on my own blog here.
An obvious one that you miss is that, for the vast majority of Americans, the "civil liberties" of people caught overseas fighting for Al Qaeda are significantly less important than the civil liberties, and right to life, of American citizens. (You also miss that those American citizens are right to believe this.) More importantly, you miss that letting the terrorists get away with murder makes American citizens more willing to dump everyone's civil liberties in an attempt to protect themselves from the terrorists.
Most importantly, what you've missed is that they longer this goes on, the more powerful the government gets. And a "war fighting" approach is the only approach that has even the slightest chance of ending it, of taking away the terrorists ability to be a significant threat.
8.1.2008 8:04pm