Fighting terrorism with law enforcement

Updated
THE LAW OF POLITICS 2248195
THE LAW OF POLITICS 2248195

The federal response to the Boston Marathon bombings is already debunking one of the most persistent myths about counter-terrorism policy—the idea that terrorism should not be confronted with the tools of law-enforcement.

Given the swift and coordinated response of the FBI, ATF, and Boston Police Department this week, it may seem odd that there is any question on this issue. American debates over applying law enforcement to terrorism are often conducted in theory, however, not tested in fact.

That is partly because there have been very few terrorist attacks inside the U.S. since September 11. According to the Global Terrorism Database, terror fatalities per year have mostly held in the single digits.

Unlike the foiled Times Square bomb plot, or Richard Reid’s 2001 attempt to use a shoe bomb on an American Airlines flight—passengers overpowered him while the plane detoured to Boston—the marathon attack sparked an urgent manhunt.

The task is typically better handled by law enforcement. The military and CIA, for their part, are also legally restricted in how they can operate on the homefront. (Hypothetically, were the trail to lead back to foreign enemies—such as one of the “nations, organizations, or persons” responsible for the September 11 attack, as defined by the 2001 Authorization of Force—then the U.S. could also debate an appropriate military response.)

If this division of labor sounds elemental, or too obvious to recount, that’s a measure of progress. It’s easy to forget that when President Obama first took office, the basic use of law enforcement against terrorism was politically controversial—and such a climate could return.

Take former Vice President Dick Cheney, who greeted the new President by attacking him for essentially preferring cops to soldiers.

“This is a war, not a law enforcement problem,” Cheney said in 2009. He accused the Obama administration of going “back to the law enforcement mode,” and thus “very much giving up that center of attention and focus that’s required, and that concept of military threat.”

The critique was widely echoed in political and media circles.

Cheney and Obama even squared off with dueling speeches about law and terror in 2009. (The Washington Post  says “Presidential scholars could not recall another moment when consecutive administrations intersected so early and public[ly].”) Of course, that debate was about more than letting the police do their jobs.

Bush administration officials were also trying to defend a set of counter terror programs that were facing a profound legal and policy reassessment, from the results of the Iraq war to the use of water boarding on detainees. Arguing that the use of law enforcement was a failure, or a “softer” way to fight terror, was one way to go on offense and distract from those critiques.

The notion of a binary choice between “war and law enforcement” looks naïve after a horrific attack like the Boston bombings.

On the ground, the first responders and local police were the first line of defense and intelligence, followed by federal law enforcement, with our foreign intelligence and military forces on call. This looks like a terror attack, and virtually no one is criticizing the U.S. response for going into “law enforcement mode,” to quote the former Vice President, because that would just be illogical.

Fighting terrorism with law enforcement

Updated