They can take our lives, but can they also take our freedom? The Charlie Hebdo assault in Paris last week is only the latest chapter in a months-long series of attacks, which built in turn on a yearlong escalation of concerns about the extraordinary number of Europeans traveling to Syria and Iraq to join the Islamic State, al Qaeda’s Syrian affiliate, and a host of other jihadi groups. Since the Charlie Hebdo attack, European governments have moved swiftly to roll up terrorist operatives who were already on their radar, with more than a dozen arrests since Thursday, Jan. 15.
In response to this escalating threat, Western countries are looking at an array of new laws and government powers to deal with the problem. In Europe and Australia, proposals to enhance counterterrorism powers are in full bloom. In the United States, similar ideas of lesser scope are quietly circulating behind the scenes, likely to emerge into public view soon enough.
The proposals are varied, but they all increase the power that a government has to act against suspects, decrease the amount of evidence needed to use such power, or both. Among the laws that have been either proposed or enacted:
• Australia has instituted a variety of new government powers to deal with both foreign fighters and terrorism suspects, the most controversial of which are control orders allowing uncharged terrorism suspects’ civil liberties to be severely curtailed and greatly expanded collection of metadata.
• France, in the wake of the Charlie Hebdo attack, is considering new laws that would double down on broad new authorities adopted in September that include restrictions on travel, a ban on publishing material “glorifying” terrorism, online censorship provisions, and the creation of new classes of crimes targeting so-called “lone wolves” by criminalizing a wide range of behavior.
• British Prime Minister David Cameron has pledged that, if re-elected, he will pursue broad new authorities for surveillance of electronic communications, potentially including bans on widely used encrypted messaging platforms.
• The European Parliament is reconsidering a previously shelved proposal requiring airlines to provide information on passengers to national governments, albeit with some talk of added civil liberties protections.
• Other specific measures have been discussed or implemented in Germany, Portugal, Greece, Serbia, Kosovo, Cyprus, and elsewhere as other countries worry that they could become the targets of similar attacks.
In many ways, this is the continuation of a debate that started on Sept. 11, 2001: What price is freedom willing to pay for security? Most Western countries have enshrined individual liberties as a fundamental principle. But they also accept that the government has a role in preventing crime and risk of harm to citizens.
When a tragic, traumatic attack takes place, the balance between these concerns is disrupted. But the 9/11 paradigm of large, complicated terrorist attacks that occur only rarely is giving way to a new dynamic of smaller, simpler plots that take place frequently. The re-evaluation of priorities that took place on Sept. 12, 2001, has become a continuous process of adjustments that are often more reflexive than reflective.
Threshold of evidence
In most Western countries, law enforcement needs substantial evidence in order to make an arrest or launch a raid like the recent one in Belgium. In the United States, for example, a jury can’t convict a criminal unless she is guilty “beyond a reasonable doubt.” But there is a wide spectrum of law enforcement activity that takes place below this threshold. A terrorist can’t be found guilty without first being investigated. To do that, the police or intelligence agency must only demonstrate “probable cause.” But if someone is pulled over while behaving suspiciously, police can search his car based on “reasonable suspicion” of a crime.
Controversial practices like stop-and-frisk go even further, allowing for very loose justifications for what — in the eyes of its supporters — is a very minor intrusion. The magnitude of that intrusion is different for those on the receiving end, which is where the rubber hits the road.
The debate over how the threshold of evidence applies in electronic metadata collection has produced a lot of heat but little fire, in part because the perception of intrusion (maybe you’re in a database somewhere) is very small compared with how it feels to be stopped on the street and frisked.
The insult of a frisking to someone’s dignity outweighs the broader ramifications of the intangible touch of one’s metadata when it is being collected in an anonymous server farm, and many people (or at least many non-Muslims) question whether they should care that a terrorism suspect’s dignity has been wounded.
While most of the new counterterrorism initiatives would reduce the threshold of evidence required to authorize an intrusion, some go further than simply ramping up enforcement. Australia’s control orders are particularly draconian: They allow suspects to be banned from being in specified public places, talking to or associating with specified people, “owning or using certain things,” “carrying out certain activities, including work,” and “accessing certain forms of technology, including the Internet.”
Those subjected to control orders can also be detained for up to 12 hours a day, forced to wear an electronic tracking device, and required to check in with the government. The control orders were already applicable to a very wide range of individuals, including those who had any contact with a terrorist organization or had been convicted of a terrorist crime, and when the order would “substantially assist in preventing a terrorist attack.”
The law was expanded shortly before the December 2014 Sydney hostage siege to include targeting people who might support or facilitate a terrorist act or support or facilitate “hostile activity” abroad. But the perpetrator of the siege, Man Haron Monis, could easily have been incarcerated without the new powers. He was free on bail despite being charged as an accessory to murder.
Critics argue that the changes to the law represent a dramatic shift in the proportionality of probable risk to government enforcement. For instance, simply making a statement in support of a terrorist group might subject an individual to the functional equivalent of house arrest, even if the person is never found guilty of a crime. The changes were instituted in response to the growing number of foreign fighters traveling from Australia to join the Islamic State and other jihadi groups, as well as incidents on the home front, including one plot that was thwarted under the previous law.
Such arguably disproportionate law enforcement responses sit uneasily with the founding principles of most Western democracies. Even worse, such compromises are increasingly, and predictably, the Western response to provocation by extremist groups. Whether in terms of civil liberties, foreign policy, or counterterrorism budgets, extremists almost always rely on such responses to advance their agendas.
Action and reaction
The reason these new authorities are even on the table is the perception of the threat. The bigger the perceived threat, the more the needle moves toward defining proportionality based on perceived risk rather than on a fixed standard of evidence. This was seen most dramatically after the 9/11 attacks. Since then, public opinion has slowly started to tip back toward liberty over security. But the rise of the Islamic State, the recent spree of small but lethal attacks, and institutional inertia have formed a powerful firewall against any rollback of government powers.
Naturally, a powerful insurgency that has claimed thousands of lives, spreading violence and killing innocents on the streets of Western cities, is bound to provoke a powerful response. But the different responses to the narco-insurgency in Mexico and the jihadi insurgencies in Iraq, Syria, and Yemen are telling.
While this disparity occurs for many different reasons (which Jessica Stern and I discuss at considerably more length in the forthcoming book ISIS: The State of Terror), much can be attributed to the fact that the Islamic State and al Qaeda literally demand our attention, while the Mexican cartels would rather go about their business without interference from Western policymakers. Extremists with colorful villains, regular video releases, and an outsized social media presence, unsurprisingly, get more attention from both the media and government officials. While this, too, is somewhat natural and understandable, it also points to a flaw in most Western governments’ approach to terrorism.
Extremism is not the only problem that suffers from an abundance of quick fixes aimed at quieting unhappy headlines, but it enjoys a particular distinction. Extremists thrive on our responses, whether by spreading their message to a wider audience, polarizing communities they seeks to target, or prompting us to spend disproportionate economic and civil resources on fighting them. This is the explicit, repeatedly published strategy of al Qaeda. And extremists must enjoy watching us act out this script.
Most extremist movements — for instance, white nationalists — must rely on mythologized versions of a government crackdown to recruit and motivate adherents. Carving out special authorities for jihadism gives its recruiters the real thing and can elevate the status of the movement for current and potential adherents, ironically elevating a sense of threat and personal risk that can help move some toward violent action.
The special status we accord to jihadis is particularly problematic when it is not consistent with how governments treat morally comparable issues around the world, whether cartels, Iranian militias destabilizing Iraq, or the Syrian regime’s ongoing slaughter of its citizens on an industrial scale.
None of this is to minimize the impact or importance of terrorism and the terrible toll on its many victims. Extremism and terrorism require a response, for many reasons. But while each problem the world faces — from urban crime to spree shooting to disease to climate change — requires its own unique set of policy responses, those responses should be tuned as accurately as possible to the proportion of the problem, rather than its optics.
When our responses are as predictable to our enemies as clockwork and when they exact a price from the freedom of our own citizens, we should ask hard questions about the bridges we are buying. Many people are willing to endorse tough tactics because of their toughness without particular regard to whether a consensus exists on their effectiveness. This can be seen most vividly in the American debate over torture, where tough-talking rhetoricians often attempt to steamroll any and all questions about efficacy or ethics. Making moral compromises is a dangerous business under any circumstances and all the more so when the profit from those compromises is unclear at best.
For politicians seeking job security, visibly tough policies may be more attractive than those that are simply effective. Tough policies are not necessarily ineffective, of course, but policies designed to address identifiable problems are more likely to succeed than those designed to send a message.
The new laws and proposed laws in response to the related problems of foreign fighters and homegrown lone wolves are certainly less extreme than torture, but they still need to be tested. Trading liberty for security is, as Benjamin Franklin famously noted, a dicey proposition to start with. If you’re going to even consider the trade, you had better be sure you will get the security you crave.
In this respect, it’s useful to remember that in many of the recent jihadi attacks in the West, the perpetrators were already known to law enforcement and intelligence services. The Canadian lone wolves had each attempted to go to Syria to join the Islamic State. The hostage-taker in Sydney had a lengthy rap sheet and was known for violence. The gunmen in Paris were well known to intelligence services. The investigation that led to the arrests in Belgium this week began before the Charlie Hebdo attack. Another arrest this week, of an American supporter of the Islamic State who wanted to bomb the U.S. Capitol, was accomplished using tactics that have been in place for years.
We’re stopping more attacks than succeed, and it is increasingly rare to hear that a successful attacker was unknown to authorities. As former National Security Agency analyst John Schindler writes, Paris was not an intelligence failure, or at least not an intelligence-collection failure. Intelligence was available. Instead, it was a failure of interpretation. The Kouachi brothers who attacked Charlie Hebdo were not invisible to authorities — they simply were determined to be a lesser priority than other, noisier suspects. In the Sydney siege and the October lone-wolf attacks in Canada, the suspects were known to police and intelligence agencies. There are few (if any) reliable approaches to predicting which radical or disturbed loners will become violent and which will not.
Many of the proposed new laws pertain to increased intelligence authorities. But human beings lie at the end of the intelligence chain, making judgment calls about priorities. A flood of new intelligence will not necessarily make such calls any easier. Instead, they may increase the pool of suspects to even more unmanageable heights, resulting in more noise and the need for many more judgment calls — which we will then second-guess when one of them invariably goes wrong.
In some of these cases, such as that of the Kouachis, additional investigation might or might not have led to an arrest before the attack could take place. Even with more intelligence, some perpetrators will succeed in carrying out missions. In Quebec, even if the Islamic State-supporting hit-and-run driver had been subjected to 24/7 monitoring, there is little reason to think that a surveillance team would or could have intervened quickly enough to keep him from running over two soldiers in a parking lot. In Belgium this week, police were able to stop a large-scale plot before it happened, but they could not stop the lone actor who killed four at the Jewish Museum in Brussels in May 2014, despite the fact that the perpetrator in that case was, again, known to authorities.
The pragmatic argument for expanding surveillance seems self-justifying on its face. When we find out that a terrorism suspect tweeted in support of the Islamic State, as the Ohio man accused of plotting to attack the U.S. Capitol did, it’s easy to see how surveillance can lead to the prevention of an attack. What we don’t see are the thousands of others tweeting similar material who never carry out an attack — or even consider it. Expanded surveillance might well capture the desired target, but it puts that needle into a much larger haystack.
Given how many recent terrorism cases involved people who had already been identified as potential threats by authorities, it’s important to ask what proactive benefit intelligence and law enforcement agencies receive from dramatically expanding the fire hose of intelligence inputs. There is a retroactive benefit, to some extent, in that it’s easier to investigate those who commit terrorist acts if data has already been collected. But the retroactive process is arguably already pretty efficient. It usually takes days, not months, to uncover a terrorist’s back story.
If our ability to assess the intelligence we already possess is inadequate to conclusively identify people with violent intentions, a wider net is not the answer. It will almost certainly expand the number of targets in the system at a much higher rate than it expands the number of actual threats detected. This means more work for less reward and more noise obscuring the movements of those who genuinely intend to do harm.
If new laws lower the threshold of evidence to take action against a suspect at the exact same time that they expand the number of marginal suspects in the system, that is a recipe for trouble, with costs that are economic (each of these steps costs money), pragmatic (in terms of making it more difficult to assess targets), and ethical (given the dramatically increased likelihood of more severe steps being taken against more people who are less likely to present a threat).
There is plenty of room for new and updated laws and tools to address the unique problems of the current international security situation, particularly as it involves citizens taking part in foreign conflicts and the burgeoning issue of how extremists use technology to achieve their goals (many current laws and policies for electronic communication were designed with telephones in mind).
But these initiatives should start from a broad understanding of the problems and try to identify the narrowest platforms for solutions. We should not capitulate to the terrorists’ most important demand — that we make them the world’s No. 1 fear and priority.
Stop throwing the kitchen sink at whatever issue tops the news on any given day. The supply of headlines is infinite. Our supply of civil liberties is not.
This piece was originally published by Foreign Policy Magazine.