Get your retaliation in first against the terrorists strategy a failure

David Cole and Jules Lobel argue in a new book that the Bush/Blair 'get your retaliation in first against the terrorist' strategy is a failure. Not only does it lead to the breakdown of the rule of law but it makes us all less safe.

"President George W. Bush is fond of reminding us that no terrorist attacks have occurred on domestic soil since 9/11. But has the Administration's "war on terror" actually made us safer? According to the July 2007 National Intelligence Estimate, Al Qaeda has fully reconstituted itself in Pakistan's northern border region. Terrorist attacks worldwide have grown dramatically in frequency and lethality since 2001. New terrorist groups, from Al Qaeda in Mesopotamia to the small groups of young men who bombed subways and buses in London and Madrid, have multiplied since 9/11. Meanwhile, despite the Bush Administration's boasts, the total number of people it has convicted of engaging in a terrorist act since 9/11 is one (Richard Reid, the shoe bomber).

Nonetheless, leading Democratic presidential candidate Hillary Clinton claims that we are safer. Republican candidate Rudy Giuliani warns that "the next election is about whether we go back on defense against terrorism...or are we going to go on offense." And Democrats largely respond by insisting that they, too, would "go on offense." Few have asked whether "going on offense" actually works as a counterterrorism strategy. It doesn't. The Bush strategy has been a colossal failure, not only in terms of constitutional principle but in terms of national security. It turns out that in fighting terrorism, the best defense is not a good offense but a smarter defense...

In isolation, neither the goal of preventing future attacks nor the tactic of using coercive measures is novel or troubling. All law enforcement seeks to prevent crime, and coercion is a necessary element of state power. However, when the end of prevention and the means of coercion are combined in the Administration's preventive paradigm, they produce a troubling form of anticipatory state violence--undertaken before wrongdoing has actually occurred and often without good evidence for believing that wrongdoing will ever occur.

The Bush strategy turns the law's traditional approach to state coercion on its head. With narrow exceptions, the rule of law reserves invasions of privacy, detention, punishment and use of military force for those who have been shown--on the basis of sound evidence and fair procedures--to have committed or to be plotting some wrong. The police can tap phones or search homes, but only when there is probable cause to believe that a crime has been committed and that the search is likely to find evidence of the crime. People can be preventively detained pending trial, but only when there is both probable cause of past wrongdoing and concrete evidence that they pose a danger to the community or are likely to abscond if left at large. And under international law, nations may use military force unilaterally only in response to an objectively verifiable attack or threat of imminent attack...

The preventive paradigm has compromised our spirit, strengthened our enemies and left us less free and less safe. If we are ready to learn from our mistakes, however, there is a better way to defend ourselves--through, rather than despite, a recommitment to the rule of law."