A Reply to Jack GoldsmithThere is a grand tradition of claiming some sort of gap exists between the U.S. and the Soviets during the Cold War. Missiles, tanks, satellites, and mine shafts. Somehow the U.S. is always the one behind. Now that the commies have left the stage as enemies and the Axis of Evil didn't quite work out, stateless terrorists are Public Enemy No. 1. Unfortunately for national security experts, the U.S. can't be behind in anything with this new enemy.
Now Jack Goldsmith, former head of the Office of Legal Counsel in the Bush43 administration, has claimed there is a gap between the government's and the public's view of the terrorism threat. Well, of course there is, but Goldsmith's post goes farther. He assumes that the secret knowledge of the government produces a higher risk assessment of the terrorism threat than the public has without such knowledge. And he goes on to say that the government must get the public to trust its claims of a higher terror threat, not by releasing information to prove such threats are higher, but by convincing the public the President "is acting in good faith to protect us." My reply, which I have sent to the Lawfare blog for possible posting (as Ben Wittes has done before), is after the jump.
For Lawfare readers, the other ideas I have concern declassification and the state secrets doctrine. I'll add another post on them hopefully soon. Please add any additional ideas or reactions to mine in the comments.
Is There a Terror Assessment Gap?If there is a gap between the public’s and government’s view of the terrorism threat, it is the fault of the government, not the public. Jack Goldsmith is right that “[t]here is little reason to think that the public today has the terrorism threat ‘in perspective.’” Although that is because the public has very little information about the actual terrorism threat. Isn’t it perfectly justifiable to “underestimate the seriousness of the threat it cannot see”? (emphasis added)
What passes for debate about the actual terrorism threat is countless statements from experts, many of them with decidedly less experience than Goldsmith, such as “I cannot prove that the threat is greater than the public thinks, of course, but I bet that any senior national security official would say, based on much more information than the public has, that it is.” He’ll win his bet of course. They would say that even if it wasn’t true. What about the truth? With almost all of the relevant factors unknown (of both Rumsfeldian types: unknown and known), statements like this aren’t even wrong. They are meaningless.
Unfortunately, they get used as explanations just the same. “Indeed, that seems to be the premise underlying TSA’s refusal to back away from its unpopular screening procedures.” (As if the TSA would ever back down on any security procedure due to unpopularity - shoes, lighters, fingernail clippers, liquids, 3 oz. bottles, etc. - when has the TSA ever backed down?) The government’s secret knowledge of the actual terrorist threat doesn’t even enter the equation for decisions like TSA security procedures. Put simply, it’s CYA vs. cost. When the Underwear Bomber got onto that plane, body scans and pat downs were guaranteed to happen.
Also meaningless are Goldsmith’s “musts” quoted from his book, particularly coming from him. If the courts and congress can’t restrict the President’s actions in national security matters, how will these “musts” be enforced? Public opinion – which knows so little of the actual threats? I agree, easier said than done.
So what can be done? Admittedly, doing anything will be hard, but I think there are possible pathways to increase the public’s knowledge of the threat. Although first, I have to explain that I frame this increase differently than the common assumption illustrated in Goldsmith’s post.
This is that the government, with its secret knowledge, assesses the threat of terrorism as higher than the public assessment, which doesn’t have that secret knowledge. However, can’t some of those secrets show the threat to be lower? And can’t some secrets be ambiguous, but are misinterpreted (CYA) as showing a higher threat? It is simply impossible to believe that all government secret knowledge shows the threat to be higher than without that knowledge. In aggregate, the government’s secret knowledge might justifiably assess a higher threat of terrorism, but it can’t be assumed.
Thus, the proper goal is to increase the public’s knowledge of the threat, which is not the same thing as raising the public’s assessment of the threat. Let the public have more knowledge, and then let them assess it. This should sound like a familiar practice from other policy debates in democratic societies. How can this be done? Share some “secrets” with the public: release more information about the threats we face through the courts.
Obviously, current investigations and intelligence cannot be released to the public. However, there are many detainees in Guantanamo who are the threat, and yet the government has provided very little detailed information about who, what, when, why and how to the public. Some will surely argue that these details can still negatively effect our current operations. But is that a credible argument? Most of the so-called high-value detainees have been incarcerated for seven or eight years now. If our secret “sources and methods” haven’t changed since then, they are not likely to be effective anymore anyway.
We already have numerous examples of federal prosecutions of terrorists. They have provided a trove of information on the actual threat of terrorism. From individual cases, both pre-9/11: Sheikh Abdel Rahman, Ramzi Yousef, the East African Embassy bombings (five defendants convicted in 2001), and Ahmed Ressam; and recently: David Coleman Headley, Najibullah Zazi, and Faisal Shahzad. And from meta-analysis: the Terrorist Trial Report Card, The Center on Law and Security at the New York University School of Law; In Pursuit of Justice, including an update, Human Rights First; and TRAC Reports on Terrorism, Transactional Records Access Clearinghouse at Syracuse University. These proceedings and reports are the best public information sources for assessing the actual threat of terrorism.
Federal trials will continue to provide information about the actual threat; Umar Farouk Abdulmutallab will be tried soon. The more trials we have, the more the public will be informed. Beyond the other much-debated reasons, shouldn’t the government use the federal trials of high-value detainees at Guantanamo to inform the public about the actual threat of terrorism that we face? Or do national security experts not want us to know?
P.S. Giving Thiessen the benefit of the doubt is beyond charity. With his demonstrated history of blinkered and self-serving apologies for war-on-terror abuses, it is enabling. And I have to say that “Terror Presidency” is about the most terrifying thing I’ve ever read.
UPDATE: December 3. Just read a fascinating and very well written account of Aafia Siddiqui by Petra Bartosiewicz in Harper's Magazine, November 2009, The intelligence factory: How America makes its enemies disappear. One paragraph relates to the value of the secret knowledge our intelligence services possess.
Such intelligence may actually be worse than useless. In a 2006 Harvard study of the efficacy of preemptive national-security practices, Jessica Stern and Jonathan Wiener note that “taking action based only on worst-case thinking can introduce unforeseen dangers and costs” and propose that “a better approach to managing risk involves an assessment of the full portfolio of risks—those reduced by the proposed intervention, as well as those increased.” Rather than understanding all intelligence as actionable, they write, “decision makers” should create “mechanisms to ensure that sensible risk analysis precedes precautionary actions.” At the moment, no such mechanisms appear to exist. The leader of one FBI conterterrorism squad recently told the New York Times that of the 5,500 terrorism-related leads its twenty-one agents had pursued over the past five years, just 5 percent were credible and not one had foiled an actual terrorist plot. But the gathering of intelligence continues apace.The Harvard study is here. Maybe a post on it after I read it.
UPDATE II: December 4. A somewhat related case of government insisting secrets remain secret harmed our security. Coleen Rowley and Bogdan Dzakovic wrote in October:
If WikiLeaks had been around in 2001, could the events of 9/11 have been prevented? The idea is worth considering. The organization has drawn both high praise and searing criticism for its mission of publishing leaked documents without revealing their source, but we suspect the world hasn't yet fully seen its potential. Let us explain.From the article's attribution:
There were a lot of us in the run-up to Sept. 11 who had seen warning signs that something devastating might be in the planning stages. But we worked for ossified bureaucracies incapable of acting quickly and decisively. Lately, the two of us have been wondering how things might have been different if there had been a quick, confidential way to get information out.
Coleen Rowley, a FBI special agent for more than 20 years, was legal counsel to the FBI field office in Minneapolis from 1990 to 2003. Bogdan Dzakovic was a special agent for the FAA's security division. He filed a formal whistle-blower disclosure against the FAA for ignoring the vulnerabilities documented by the Red Team. For the past nine years he has been relegated to entry-level staff work for the Transportation Security Administration.