The More Things Change …. Obama’s National Security Policy Looks a Lot Like…. George W. Bush’s!
Laws, Outlaws and Terrorists: Lessons From the War on Terrorism
by Gabriella Blum and Philip Heymann
Reviewed by Aziz Huq
“The War on Terror is dead; long live the war on terror:” Thus the transition from President Bush’s watch against al Qaeda to President Obama’s be pithily characterized. True, prime time news in early 2009 might have led a casual observer astray. Liz Cheney’s 501(c)(4) Keep America Safe ads, with her father’s jerimiads against the new commander-in-chief, might have suggested that national counter-terrorism policy had, indeed, changed tack.
But the sturm-und-drang of Fox-ready sound bites shed little light on changes on the ground. As Peter Baker explained in January in the New York Times Magazine, little has changed in the move from Bush to Obama, at least in terms of national security policies that impinge on civil liberties and human rights.
Much-touted January 2010 executive orders on torture and detention policy, for example, largely barred practices (e.g., water-boarding) that had not been used for years. In the courts, the government hardly skipped a beat in 
detention cases. It offered an incrementally less capacious definition of who could be detained that, in practice, resulted in few or no reconsiderations of existing detention decisions.
And, viewed in a larger historical scope, there is little evidence that the advent of Obama—or the post-2008 wave of habeas litigation—changed the rate at which detainees have been released. It should be no surprise then that both the ACLU and a former Bush-era counterterrorism official writing in the Wall Street Journal perceive little light between counterterrorism policy circa 2007 and policy circa 2010.
It is on fallow ground that a rich trove of reforming ideas tumble to earth from north of the River Charles. The Harvard-based Gabriella Blum and Philip Heymann are, respectively, leading lights of an emerging generation, and, an older generation of national security scholars. Heymann has penned a series of engaging and clear-sighted books on terrorism and security since the late 1990s. A former legal advisor to the Israeli Defense Force, Blum has emerged as an important scholar of the laws of war, whose incisive scholarship deftly weaves diverse normative threads from political philosophy and practical experience. Laws, Outlaws and Terrorists is their contribution to an already outsize literature on how to reform post-Bush national security policy. The primary problem with the resulting shelves groaning with books, of course, is that the Administration has demonstrated little appetite for deviations in any direction from the status quo ante.
Nevertheless, to the extent that the 2010 midterm elections yield a Congress bent on pushing Obama on national security, Blum and Heymann have useful, cautionary instruction.
Counterterrorism policy involves a bundle of complex, interrelated policy problems tethered by constitutional law, human rights, legal ethics, and international law. Blum and Heymann claim to provide an “interim, third paradigm” for terrorism that draws on both the principles that underpin constitutional criminal law and the laws of war. But, thankfully, this doesn’t accurately describe their project. No single organizing principle illuminates all counterterrorism policy. Rather, each problem has to be taken on its own terms with careful attention to both legal principles and empirical evidence.
And to their credit, Blum and Heymann analyze each policy area separately in terms of the law and the known facts. In the first third of their book, they address broadly thematic questions: Should we view efforts against al Qaeda as a war or a matter of criminal law enforcement? What should be the particular responsibilities of government laws? What role should international law play? In a second section, they turn to the “sharp end of the stick”—detention, interrogation, and targeted killings. And a final section addresses non-coercive tools such as negotiation and moral suasion. Their claim to draw on both criminal law and law-of-law principles really applies only to the middle section. Thankfully, they otherwise do not try and make round holes fit square pegs.
As befits the divergent backgrounds of the authors, there is some threshold uncertainty as to the object of their advice. On the one hand, the chapter on government layering speaks to the very particular set-up of the American executive. On the other hand, the chapter on negotiating with terrorists reads as a commentary on tactics for the Middle East rather than counsel tailored for American efforts against al Qaeda. Perhaps it would have been better had the authors tailored the book for its likely U.S. audience more by drawing out applicable conclusions in, inter alia, the chapter on negotiations. After all, terrorism is a tactic that is picked up, used and potentially abandoned by a wide variety of local and transnational organizations. Just as there is no one way to fight fires—be they forest fires, industrial fires, or the Great Chicago Fire of 1871—so there is no one way to address terrorism.
Within each policy domain, however, Blum and Heymann have sensible and informative things to say. For neophytes to policy debates in national security, their text will be tremendously useful. In the chapter on targeted assassination, they furnish a concise and effective thumbnail of how Israeli and American counterterrorism policies have developed. Their analysis of torture and cruel, inhuman, and degrading treatment is superlative. In effect it is a careful response to their Harvard colleague Alan Dershowitz’s argument that because torture happens, it might as well be allowed and regulated. Blum and Heymann properly reject unrealistic hypotheticals as starting points for thinking about torture in favor of a more systemic approach to evaluating the marginal gains from coercive interrogation as against non-coercive alternatives. They might have made more of existing empirical research that fails to demonstrate any marginal informational gains from torture’s use. But by not doing so perhaps they will reach those readers whose prior is (the incorrect factual assumption) that torture works.
Where Blum and Heymann disappoint is in the substance of some of their proposals. It is not so much that I disagree with any particular proposal—although I certainly find some more congenial than others. It is that some proposals are offered without enough precision to allow the reader to fairly judge how they would work in practice and whether she would agree with them.
For example, Blum and Heymann propose that targeted killings be limited to those who “are actively and directly involved in terrorist activities.” But what is a “terrorist activity”? Is it one that necessarily implicates violence? One that enables violence in the short- or medium-term? How would they resolve the case of Anwar al-Aulaki, the American national now allegedly resident in Yemen, who has been targeted for assassination by Predator drone attack? What facts would be dispositive in determining whether al-Aulaki could lawfully be targeted? Whether one takes a more liberal or more pro-security position than Blum and Heymann, it would still be useful to know exactly what they think.
Another example: they have a cogent and well-reasoned argument against proposals for a new preventive detention regime. But their alternative proposal, which is embedded in the current criminal justice framework, leaves open critical questions about when pre-trial delay would be excessive. Saying that the delay must be “reasonable,” as they do, leaves a lot open. This makes it hard for the fair-minded reader on the left or right to determine whether she supports the authors’ position.
Perhaps this point, however, should not be belabored. The national debate on security and counterterrorism is both impoverished and empirically slovenly. Picking nits in Blum and Heymann’s solutions is to miss the point. By approaching hard policy and legal questions with clarity, dispassion, and a clear moral compass, Blum and Heymann add reason and light to a befuddled and emotional public debate. For this alone they deserve much credit and applause.
Aziz Huq is an Assistant Professor of Law at the University of Chicago and is co-author, with Frederick A.O. Schwarz Jr., of Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press).
The barns were unpainted. I wondered why Canadian farmers would allow their barns to degrade from exposure to the elements. The answer, I discovered, was government. At the time, Canada taxed painted buildings, so farmers left their structures exposed to avoid the penalty. These things make quite an impression on a child.
Yes, but what if it's the wrong impression?
My fact-checking suggests it is. Large unpainted barns were often erected in Southern Canada in the late 19th Century --- and far from degrading, some of them were surely on the Armeys' route North when Dad took Dick fishing in 1950.
The Canadian government had nothing to do with the décor of those barns.
The reasons the barns were unpainted were culture and esthetics.
A childhood misimpression casts a long shadow. At some point, Armey might have run across a different explanation. But this one fits his politics so perfectly. And now he passes that misinformation on.
Misperceptions can be useful. In the early '90s, the economics professor cast his lot with Conservative Republicans at exactly the right time, beating the drums in the House of Representatives against Bill Clinton's efforts to reduce the deficit the old-fashioned way --- by raising taxes. Later, when his side was in charge, he was one of the Republican leaders who delighted in cutting taxes and growing the federal budget.
But consistency was never Armey's strongest suit. His view of the Clinton sex scandal: "If I were in the President's place, I would not have gotten a chance to resign. I would be lying in a pool of my own blood, hearing Mrs. Armey standing over me saying, 'How do I reload this damn thing?'" This quip backfired --- it inspired some of his former students to recall episodes of sexual harassment by Professor Armey. (There is now a second Mrs. Armey.)
In 2003, after eight years as Speaker of the House, Armey resigned and joined the Washington law firm now known as DLA Piper as a senior policy advisor, or, in plain English, as a lobbyist. The job paid well --- a reported $750,000 a year. But lobbyists are not in the public eye, so he also became co-chairman of Citizens for A Sound Economy, which, the following year, became FreedomWorks. The cause grew rapidly, and, by 2008, FreedomWorks was paying Armey a salary of $550,000.
The philosophy of FreedomWorks is straightforward: “Lower Taxes. Less Government. More Freedom.” Lobbyists have more pliable philosophies. So while FreedomWorks loathes national health care --- in his book, Armey and his collaborator, Matt Kibbe, write that “the government should be concerned with protecting my liberty, not my liver” --- DLA Piper represented drug companies that, at least initially, supported health care reform. FreedomWorks opposed TARP; Armey's firm represented General Motors, Lehman Brothers and Merrill Lynch.
Conservative bloggers noted these conflicts and attacked. Armey said he was the victim of a conspiracy --- 'I wouldn't be surprised if it [the criticism] stemmed from information put out by allies of the Obama administration” --- but in August of 2009, he resigned from DLA Piper. "I hated to walk away from that kind of money," he said. “How many times in your life, or anybody's life, do they have an opportunity to earn that kind of money when they are 69 years old?"
These days money is not his problem. The Tea Party movement is. Not its numbers --- by Armey's count, the movement is hotter than Lady Gaga. And not its message --- that is now Republican doctrine.
The problem is that Armey and Fox and the right wing bloggers have been screaming “Take back America” for so long that I don't see how they fail to incite some event that sets “real” America against illegals, deviants, liberals and, mostly and especially, the President.
It gets worse. In the courts, the Tea Party is losing, The Administration vs. Arizona. Overturning Proposition 8. A New York lesbian on the Supreme Court. With every decision that “they” lose, you can picture their rage spiking.
At some point, this kind of volatility has its catalytic moment. At a Tea Party event, someone will turn on an idiot protestor. Or a Tea Party member will decide to right some wrong. A gun will go off. And there, along with blood and death, will be the media's useless and overdue finger-pointing.
On August 28 --- the anniversary of Martin Luther King's March on Washington --- Glenn Beck is leading a march on Washington of his own. This is worrisome. Since January 19th, 2009, Beck attacked the Tides Foundation on his show 29 times; in July, one of his fans was arrested after a shootout with the California Highway Patrol. His plan: “to start a revolution" by attacking the American Civil Liberties Union and the Tides Foundation. So Beck has called for marchers at his rally to sign an oath of non-violence. Bring your gun if you must --- it's your Constitutional right --- but don't pull the trigger.
This is the key point: Glenn Beck must make sure he cannot be held responsible for any violence.
Ditto Dick Armey.
That is why, I think, Armey uses the final 65 pages of his 245-page book to make it clear that FreedomWorks is not a leader of the Tea Party movement. Nobody is. It's local. Grassroots. FreedomWorks is around simply to support those groups and give them tips on organizing their events and meetings. Talking points, rallies, slogans --- all that comes, spontaneously, from patriots whose names we wouldn't recognize.
These pages are not terribly illuminating. They are very likely untrue. But to talk about them in journalistic or literary terms is to miss their purpose. “Give Us Liberty” may bear a publisher's imprint --- surprise: the publisher is Rupert Murdoch --- but it is not a book.
Dick Armey has, cleverly, published his legal defense.