Less Safe, Less Free: Why We Are Losing the War on Terror

A cogent critique of the new "preventive paradigm" in counterterrorism policy by two of the nation's leading legal scholars.

"If we wait for threats to fully materialize, we will have waited too long."—President George W. Bush, defending the National Security Strategy doctrine "preemptive war," Commencement Speech at West Point, June 1, 2002

In Steven Spielberg's science fiction thriller Minority Report, the Justice Department uses psychic visionaries to predict and prevent future crimes. President Bush has no psychic visionaries, but in fighting the war on terrorism his administration has nonetheless adopted a sweeping new "preemptive" strategy, which turns on the ability to predict the future.

At home and abroad, the administration has cut corners on fundamental commitments of the rule of law in the name of preventing future attacks—from "waterboarding" detainees, to disappearing suspects into secret CIA prisons, to attacking Iraq against the wishes of the UN Security Council and most of the world when it posed no imminent threat of attacking us.

In this brilliantly conceived critique, two of the country's preeminent constitutional scholars argue that the great irony is that these sacrifices in the rule of law, adopted in the name of prevention, have in fact made us more susceptible to future terrorist attacks. They conclusively debunk the administration's claim that it is winning the war on terror and offer an alternative strategy in which the rule of law is an asset, not an obstacle, in the struggle to keep us both safe and free.

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Call it speculation on disaster, the administration's policy of guessing where future threats lie and then impinging, imprisoning, invading. That policy, argue Cole (Law/Georgetown Univ.) and Lobel (Law/Univ. of Pittsburgh), is a failure. "There is nothing wrong with prevention as an objective," the authors assert; prevention is a goal of public safety as much as of public health. Yet the administration's "preventive paradigm" attacks the rule of law writ large, and specifically commitments to equality, transparency, due process, checks and balances, basic human rights and other operational principles and ideals. "Bush's preventive paradigm," Cole and Lobel maintain, "has violated each of these commitments, imposing double standards on the most vulnerable, operating in secret, denying fair trials, imposing guilt by association, intentionally obscuring clear rules, asserting unchecked unilateral power, and violating universal prohibitions on torture, disappearance, and the like." In part, this has been effected by an insistence that the state knows best, that the enemies are non-citizens and that secrecy is the only possible stance against terror-though when these claims are examined, by the authors' account, each turns out to be flawed. And whereas the putative goal is to bring terrorist suspects to justice, the practice has been "to place suspects beyond the reach of any law that might protect them" by "rendering" them to such places as Syria and tucking them away in Gitmo. The authors go on to argue that the preventive paradigm as applied in such places has failed, since coerced information is tainted, just as the preventive paradigm as applied to nations such as Iraq has soundlyfailed. And it certainly has not kept would-be rogue states from acquiring nuclear weapons, nor terrorist organizations from attracting recruits. What is to be done? Treat the rule of law "as an asset, not an obstacle," the authors conclude. A resounding argument contra administration policy, more effectively stated than Alan Dershowitz's recent Preemption (2006).

David Cole is a professor of law at Georgetown University, the legal affairs correspondent for The Nation, and the author, most recently, of the American Book Award-winning Enemy Aliens. He lives in Washington, D.C. Jules Lobel is a professor of law at the University of Pittsburgh and a constitutional lawyer and expert on emergency powers and the laws governing war. He lives in Pittsburgh, Pennsylvania.