(Excerpted from Criminal Procedure: Constitution and Society 5e by Marvin Zalman, Copyright 2007 Pearson Education, Inc. Upper Saddle River, NJ.)
The war Model Impedes Effective Counterterrorism
The current crisis has generated vituperative politics. The administration and its supporters picture opponents to the Iraq War as appeasers and perhaps traitors in a continuing and possibly decades-long war on terror.15 This conflates the reaction to the ongoing sectarian violence in Iraq to the larger issue of a complex international jihad movement without any central organization.16 The war metaphor for the anti-terror campaign, according to one expert, actually makes it more difficult to think clearly about terrorism and to develop effective counterterrorism strategies.17 The terror bombings in Madrid, Bali, and London in recent years, for example, were not planned by a central al Qaeda organization, which according to counterterrorism experts, is no longer what it was before 9/11, but by diffuse groups infused with the Islamist jihadi
ideology, that is far removed from mainstream Islam.
The Administration claims that the United States has been free of terror attack since 9/11/01 because of the Iraq war and the application of questionable methods including torturous interrogation techniques. Yet, terrorism expert Prof. John Mueller persuasively argues that “the threat posed by home grown or imported terrorists . . . has been massively exaggerated."18 A true al Qaeda sleeper cell has never been found in the United States, despite strenuous FBI efforts. Given our porous borders and far from perfect homeland security, it is more plausible to attribute the lack of attack for five years to a “severely depleted al Qaeda” and to the estimate of experts that many Islamists who oppose Western values do not support terror attacks as an effective means of advancing their aims. This does not mean that law enforcement vigilance is unnecessary. After all, “thousands of apparent terrorists have been rounded, or rolled, up overseas with U.S. aid and encouragement."19 It does mean that we must think more clearly about the nature of terrorism and be mindful of such costs to civil liberties as, for example, the 30,000 “national security letters” issued by the FBI without judicial warrants every year, forcing businesses and other institutions “to disclose confidential information about their custimers without telling anyone they have done so. That process has generated thousands of leads that, when pursued, have led nowhere.”20
Law Enforcement and Police Work are Keys to Countering Terrorism
If, as The 9/11 Commission Report21 makes clear, the jihadist enemies of modern, secular states in the global economy are grounded in extremist views of Islam and in social and economic malaise, it would seem that classic counterinsurgency tactics, that rely heavily on police techniques of monitoring, infiltration, interdiction, and prosecution, along with material support for average people not caught up in terrorism, and the judicious use of the military, is the way to successfully counter terrorism.22 It is, after all, patient, meticulous police work in Britain and elsewhere that identified and monitored a “plot by a smallish, non-state group of criminal terrorists” uncovered in the Summer of 2006, who planned to destroy airlines with explosives disguised as carry-on liquids.23 The understanding that law enforcement is a key to fighting terrorism is reflected in the Anti-Terrorism Advisory Councils, involving federal, state, and local governments and the private sector, set up by the Justice Department to coordinate anti-terrorism training and action.24 The bulk of this activity focuses on police and prosecution.
Again, any extended discussion of operational topics is not the subject matter of criminal procedure. To the contrary, however, many events that have occurred in the “war” on terror have implicated central questions of constitutional criminal procedure. This is especially true as the Supreme Court has spoken forcefully in support of the rule of law in response to Administration actions that have sought to extend executive power to unprecedented levels. Indeed, a guest scholar at the prestigious, middle-of-the road Brookings Institution, has labeled Administration efforts as “an extralegal terrorism war."25 Acknowledging the need for “spying at home, detaining terror suspects, and conducting tough interrogations” that the government will need to engage in for many years to come, this author criticizes President Bush and his administration for not “making proper legal provisions for those practices.”
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