Terrorism, Freedom, and Security: Winning Without War.

• Author: Lee, Ronald D.
• Position: Brief Article - Book Review

TERRORISM, FREEDOM, AND SECURITY: WINNING WITHOUT WAR. By Phillip B. Heymann. Cambridge: The MIT Press. 2003. Pp. xii, 211. Cloth, $24.95; paper, $14.95.

In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can--and in his view should--respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ("DOJ") and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. (1)

Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor of the United States engaging in a "war" on terrorism. Heymann views this mental model and the policies it spawns or is said to justify as, at best, incomplete, and, at worst, ineffective in preventing terrorist attacks and harmful to democracy in the United States (pp. 19-36). Second, Heymann advocates the paramount importance of intelligence to identify and disrupt terrorists' plans and to prevent terrorists from attacking their targets (p. 61). Heymann observes that the United States needs both "tactical intelligence" to stop specific terrorist plans and "strategic intelligence" to understand the goals, organization, resources, and skills of terrorist organizations (p. 62).

At the same time, however, a heightened reliance on accurate and timely intelligence comes with risks. Heymann is concerned about the creation and consequences of an "intelligence state" in the United States. Here is the crux of the problem for both the government and the governed: we need precise, detailed, and accurate intelligence more than ever, but the agencies that comprise the United States Intelligence Community ("USIC") can cause harm to the fabric of civic society because of their information-gathering capabilities (p. 135).

In this Review's Part I, we assess the idea of a "war" on terrorism as policy tool and metaphor. We also examine Heymann's alternative instruments, including diplomacy, intelligence, control over terrorist finances, and law enforcement. As a related topic, we consider the safeguards that Heymann develops for preventing the rise of an American intelligence state. This Part concludes with an exploration of how Heymann's rejection of the metaphor of a war on terrorism is amplified and extended by social psychology research regarding "framing effects" as well as by a classic study of the Cuban missile crisis.

This Review's Part II looks at two additional aspects of Heymann's vision of future uses of intelligence to thwart terrorism. In Section II.A, we describe the contours of data mining, a technique of intelligence analysis that Heymann advocates. Although Heymann notes that data mining is likely to have an adverse effect on privacy, he does not develop detailed safeguards in response. A Pentagon study panel, the Technology and Privacy Advisory Committee ("TAPAC"), has, however, developed a recommended framework for governmental use of data mining techniques. We find that the TAPAC recommendations generally provide a solid baseline for confronting the privacy implications of this technique, but we call for further work on data quality issues in governmental database management as well as further assessment of the necessary judicial role in data mining.

In this Review's Section II.B, we turn to an important policy discussion related to data mining: How can the USIC better disseminate and collaborate on intelligence? A central aspect of this policy debate has been proposals to build a new intelligence network. In the new network, intelligence will not be "stovepiped," which refers to the practice of intelligence agencies holding onto the immediate results of their work. In contrast, the new network will greatly broaden access to raw intelligence--both within the USIC and beyond. We sketch the proposed form of the new intelligence network and analyze four important legal and policy questions that it raises.

1. SECURITY WITHOUT WAR AND THE INTELLIGENCE STATE

   Heymann's premise is twofold. First, war as a metaphor and as a justification for post-9/11 U.S. policy measures has been counterproductive and is making the world a more dangerous place for the United States. Second, security for the United States ultimately depends on careful and discriminating choices among alternative instruments, including diplomacy, intelligence, control over terrorist finances, and law enforcement. In this Part of the Review, we analyze Heymann's two premises and his thought experiment considering the "intelligence state," a potential dystopia resulting from the struggle to keep America safe.

   1. The Flawed War Metaphor and the Military's Limited Role

      For Heymann, the idea of a "war" on terrorism is a flawed metaphor that encourages use of the wrong tactics and mistakenly implies that incursions into democratic values are both above question and temporary in duration. As Heymann states: "Talk of 'war' as if that substitutes for a recognition of the complexity of the situation and the richness of our goals and the variety of our alternatives is simply folly" (p. 170). The United States faces multiple possible threats, ranging from limited violence to a continuing campaign of violence, to spectacular attempts to kill Americans, to the use of weapons of mass destruction (p. 22). The United States also faces a series of different enemies, who are not likely to be eliminated or even diminished by deployment of traditional military forces (p. 22).

      To be sure, the military can help at times. For example, it is essential in a situation, such as Afghanistan, where the U.S. goal is to destroy a regime that allows refuge to terrorist organizations, such as Al Qaeda (p. 22). Heymann expresses a firm conviction that the United States "must prevent Al Qaeda from finding a home in any nation" (p. 23). Yet, the threat to the United States will not always be from a hostile nation that provides a haven to a group planning attacks on the United States. At other times, the threat resembles something more "like the problem of drug-dealing" (p. 24). Heymann notes: "Attacking harboring nations will still be important, but it will prove inadequate in light of the sobering fact that terrorist groups, like organized crime groups, have been able to work around the world without the tolerance, let alone support, of the government where they are located" (p. 24).

      Thus, one way in which the concept of a "war" against terrorism falls short is that the U.S. response generally will not consist of attempts to vanquish one or more traditional nation-states. Heymann also observes that unlike the situation during a traditional war, the United States has considerable uncertainty about the motivations, organizations, resources, and plans of terrorists--and sometimes even their identities (pp. 27, 67).

      While skeptical of any overreliance on tactics linked to the concept of war, Heymann acknowledges the grave danger that the United States faces through the potential availability to terrorists of nuclear and other weapons of mass destruction. At the top of his list, indeed, of what changed on 9/11 is that "the ruthlessness and devastation of the attacks convinced us that terrorists targeting the United States would in fact use weapons of mass destruction, including nuclear and biological weapons, if they could obtain and deliver them" (p. 7). This point undercuts the reassuring impact of Heymann's earlier comment: "[W]e face ... a very prolonged series of contests with opponents that do not have the powers ... to defeat our armies, or destroy our powerful economy, or threaten to occupy our territory--the dangerous characteristics we have traditionally associated with war" (p. 161). At any rate, even for this most dire of threats, Heymann argues, "military or war-like measures" remain of limited usefulness in preventing nuclear terrorism (p. 24). As he notes:

      Our gravest dangers from nuclear terrorists may well flow from the fact that enriched uranium or even nuclear weapons may be illegally sold or poorly guarded in, say, Russia or Pakistan. Then the language of 'war' would serve us poorly; for what we need is a structure of incentives and prohibitions in cooperation with these countries. (p. 24; footnote omitted) A further problem with the concept of a war on terrorism, according to Heymann, is that this idea will encourage use of antiterrorism techniques that threaten core values of a democratic society. As noted above, in contrast to more traditional wars of U.S. history, terrorism in its different forms does not pose a temporary threat. Actions that impinge on civil liberties are, as a consequence, likely to last for decades and might end by changing the nature of American democracy and reducing the protections provided by the United States Constitution. Hence, one should not accept an approach that Kathleen Sullivan disapprovingly terms the "black hole" theory of constitutional rights in wartime. (2) Under this approach, rejected by both Sullivan and Heymann, constitutionally guaranteed civil liberties disappear into a "black hole" during a war, and then reemerge once the nation is at peace (p. 161).

      Democratic liberties cannot merely be pushed aside until the threat from terrorism abates. As Heymann writes: "Because the danger is enduring, we must develop ways of adjusting that leave much of what we value in place while we deal with a prolonged period of danger from relatively small groups--only some of which will seek or need state support" (p. 162). Here, Heymann might have engaged in further comparisons with events during the cold war--the most recent "war" fought by means other than military force in which the United States was engaged and which ended with the collapse of the...