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Law Enforcement As a Counterterrorism Tool 01_A_DAVID KRIS ARTICLE V17 FINAL (6-14-11).DOC (DO NOT DELETE) 6/15/2011 12:01 PM Law Enforcement as a Counterterrorism Tool David S. Kris* In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba.1 Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States.2 President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:3 [This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s * Assistant Attorney General for National Security at the U.S. Department of Justice from March 2009 to March 2011. This article was written and submitted for publication when Mr. Kris was Assistant Attorney General. The views expressed herein do not necessarily reflect the views of the U.S. Government. Brad Wiegmann and Rosemary Nidiry provided superb assistance on this project. Some of the points made in this article expand on remarks made by Mr. Kris in a speech at the Brookings Institution in June 2010. The prepared remarks are available on both the Department of Justice’s website, http://www. justice.gov/nsd/opa/pr/speeches/2010/nsd-speech-100611.html, and on Brookings’ website, http://www.brookings.edu/events/ 2010/0611_law_enforcement.aspx. Video of the speech is available on C-SPAN’s website, http://www.c-spanvideo.org/ program/294017-1. 1. See The Ike Skelton National Defense Authorization Act for Fiscal Year 2011, H.R. 6523, 111th Cong. §1032, enacted as Pub. L. No. 111-383 (Jan. 7, 2011). During the spring of 2011, other bills with similar provisions were pending in Congress. For example, Sections 1039 and 1046 of H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, which was passed by the House of Representatives on May 26, 2011, would prohibit Defense Department appropriated funds for 2012 from being used to “transfer or release an individual detained at Guantanamo . to or within the United States,” and require trial by military commission for certain terrorists if they are “subject to trial . by a military commission.” 2. See, e.g., David B. Rivkin, Jr., & Lee A. Casey, Editorial, The Wrong Way To Stop Civilian Terror Trials, WALL ST. J., Dec. 21, 2010, at A17 (noting that the apparent purpose of the defense authorization provision is to prevent the prosecution of Guantánamo Bay detainees in federal court). 3. Statement by the President on H.R. 6523, 111th Cong. (Jan. 7, 2011). 1 01_A_DAVID KRIS ARTICLE V17 FINAL (6-14-11).DOC (DO NOT DELETE) 6/15/2011 12:01 PM 2 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:1 counterterrorism efforts and has the potential to harm our national security.4 The Congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released.5 This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts. Part I reviews the recent history of our national counterterrorism strategy, focusing in particular on the origins and evolution of the Justice Department’s National Security Division (NSD), which I led from March 2009 until March 2011.6 Knowing a little about NSD is important because NSD is a key part of how the country came to a consensus, at least until recently, about the appropriate role of law enforcement as a counterterrorism tool. Part II sketches a conceptual framework for thinking about the role of law enforcement in the current conflict, and more generally as a counterterrorism tool. The idea here is to identify the right questions, and the right way of approaching the policy debate in which we are now engaged as a country. Identifying the right questions is difficult but important. Part III answers the questions posed in Part II. It briefly describes some of the empirical evidence about how law enforcement has been used to 4. Id. 5. See, e.g., Benjamin Weiser, Top Terror Prosecutor Is a Critic of Civilian Trials, N.Y. TIMES, Feb. 19, 2011, available at http://www.nytimes.com/2010/02/20/nyregion/20 prosecutor.html (quoting Andrew McCarthy, formerly an Assistant U.S. Attorney, as saying, “A war is a war. A war is not a crime, and you don’t bring your enemies to a courthouse.”). However, McCarthy has supported enhancements to the criminal justice system designed to make it more effective against some terrorists in the post-9/11 era. See, e.g., Material Support to Counterterrorism, NATIONAL REVIEW ONLINE, Dec. 14, 2004, available at http://www. nationalreview.com/articles/213131/material-support-counter terrorism/andrew-c-mccarthy). On the other side of the debate, the ACLU has argued: “If the government has enough credible evidence against a detainee, it should prosecute him in a federal court, which are [sic] well positioned to accommodate the government’s legitimate national security interests without compromising the fundamental rights of defendants. Where there is not, detainees should be repatriated to their home countries or, if there is a risk of torture or abuse, transferred to countries where human rights will be respected.” See www.closegitmo.com. 6. The National Security Division, http://www.justice.gov/nsd/index.html. 01_A_DAVID KRIS ARTICLE V17 FINAL (6-14-11).DOC (DO NOT DELETE ) 6/15/2011 12:01 PM 2011] LAW ENFORCEMENT AS A COUNTERTERRORISM TOOL 3 combat terrorism, and, in particular, how it has been used to disrupt plots, incapacitate terrorists, and gather intelligence. This serves as the basic, affirmative case for retaining law enforcement as one of our counterterrorism tools. Part III also explores some of the arguments against using law enforcement for counterterrorism, and explains why (in my view) those arguments are wrong. Part III closes with a discussion of pragmatism and perception, and the role of values in counterterrorism. Part IV offers a comparison between civilian law enforcement, detention under the law of war,7 and prosecution in a military commission. We need such a comparison to make smart decisions about public policy as well as decisions about the disposition of individual cases. The chief goal of Part IV is to explain the major pros and cons of each system.8 Finally, Part V discusses how law enforcement can be made more flexible and more effective as a counterterrorism tool. In particular, it addresses how the public-safety exception to Miranda should apply in the 9 context of terrorism investigations. I. THE RECENT HISTORY OF LAW ENFORCEMENT AS A COUNTERTERRORISM TOOL We often hear that before 9/11, the United States took a “law enforcement approach” to counterterrorism.10 There is some truth in that, but I think it oversimplifies the situation. In fact, the 9/11 Commission 7. Law of war detention as used in this paper refers to detention pursuant to the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), as informed by law of war principles. The procedural discussion on law of war detention focuses on any such detention that has been held to be subject to habeas corpus. 8. There are two appendices to this article: Appendix 1 is a description of some of the significant cooperation and intelligence activities of terrorist groups that the U.S. government has obtained from terrorism suspects via the criminal justice system. Appendix 2 is a chart comparing the criminal justice system and the reformed system of military commissions and law of war detention. 9. Miranda v. Arizona, 384 U.S. 436, 479 (1966); see New York v. Quarles, 467 U.S. 649, 655-56 (1984) (finding a public safety exception to the requirement of Miranda warnings where law enforcement is acting to protect the public and that the availability of that exception does not depend on the motivation of the individual officers involved). 10. See, e.g., Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary 111th Cong. (June 17, 2009) (statement of Sen. Jeff Sessions), available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3913&wit_id=515 (expressing concern that Department of Justice “would operate under [a] pre-9/11, criminal law mindset when fighting terrorists”); Andrew C. McCarthy, Kerry’s Exaggerated Terror Problem, NAT’L REV. ONLINE (Mar. 30, 2004), http://old.national.review. com/comment/mccarthy200403300858.asp (“In the eight years from 1993 to 2001, when terrorism was regarded as a law enforcement issue, we managed to prosecute about 40 terrorists in trials that generally took six months or more, and terrorist attacks nevertheless continued apace.
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