March 14, 2004

Letter to the Paper IX

Over at Trickster talks about the election effect of terrorists trying to time their attacks to move the electorate in ways that they wish. The comments section, by the time I got to it was long and involved and had a lot of discussion over whether the War on Terror was truly better conceived as a war or as an intelligence/law enforcement operation. On that subject, I wrote a response:

Moving things back to the war/law enforcement portion of the discussion, I suggest that both sides have largely missed the boat on what it means to adopt different models. At the first screening, military and law enforcement models classically involved different personnel called armed forces and police respectively. In a terror war, such distinctions largely become meaningless because neither force has enough people by itself to take care of the job properly. Anybody who doesn't integrate and use both forces is criminally lax in addressing the threat using either model.

An integrated, full on law enforcement response would have a suspension of the posse comitatus laws with regards to terrorism and placing the military under the rubrics and rules of the law enforcement world. A military response would militarize law enforcement and loosen their restrictions and suspect protections, largely after arrest. Both would end up having the full force of the State's coercive powers aimed at an unusual threat that does not fit into normal categories.

So do terrorists gain the right to confront their accusers when their accusers are deep cover intel agents still active inside their organization? Yes for law enforcement, no for military models.

If a terrorist is caught and tried, does Miranda apply or can interrogation proceed without counsel? Yes Miranda applies for law enforcement, no for military models.

If four terrorist are driving down the road and you can kill them all with a missile off a UCAV but can't capture them do you hold off firing the missile? Yes for law enforcement, no for military models.

These and many other use cases change behavior depending on the model the government has chosen. So when Kerry stands up and says he views this as law enforcement he's saying intelligence should have further restrictions put on it that would eviscerate humint, all interrogations at Gitmo should have lawyers present, and those terrorists we blew off the face of the earth in Yemen? Well that was a crime and there should be prosecutions for wrongful death.

To say otherwise (that law enforcement does not require these changes) is to say that secret evidence should become admissible in your civilian criminal trial and you no longer have a right to counsel when interrogated by the police after arrest. Avoiding such changes also means that JAG officers become part of the fire loop in very unsatisfactory ways. I believe we lost two occasions to have OBL meet his maker for this very reason during operations in Afghanistan.

Civil libertarians should be scared stiff about the idea of having a winning effort against terrorists that is not a war. Instead of having erosion in specific areas regarding terrorist acts, you'd have a generalized erosion of civil liberties across the board.

Posted by TMLutas at March 14, 2004 10:41 AM