How do We Know When a Policy has Failed?

In my morning paper yesterday, there was a story presenting Tony Blair's reaction to the escape of 3 suspected terrorists who were under "partial arrest." The Brits were holding them to keep them from traveling overseas to carry out terrorist attacks. In short, the Brits were trying to protect others from terrorist attacks. Blair wants to toughen the British laws for dealing with such terrorists. The predictable response of Civil-liberties campaigners to Blair's call for tougher measures was

"Punishment without trial is a failed policy on both sides of the Atlantic," said Shami Chakrabarti, director of the human-rights group Liberty.

This raises the question as to when can we definitively say that a policy has succeeded or failed?

For anyone to make a warranted claim that a policy has failed, one must articulate what one takes the goals of that policy to be and then demonstrate how the policy has failed to satisfy those goals. Our Civil Libertarian did not do that, and for good reason. He can't. The goal of the British and American anti-terrorist laws, however distasteful they my be, is to prevent terrorist attacks. And, since the 9/11/01 attack in the US and the attacks on the London transport system on 7/7/05, there have been no substantive terrorist attacks in these two countries despite the fact that they are the two countries which, not counting Israel, are most despised by Muslim terrorists. By any concrete measure of success or failure, one would have to conclude that the domestic security policies of the two countries have been successful.

It is always possible, of course, that the absence of terrorist attacks in the US and UK since those in 01 and 05 is not at all due to the special domestic security laws of the two countries. One could make an argument that conventional police work has been sufficient to stop most terrorist attacks. Sometimes it is the incompetence of the terrorist that causes a failed attempt. I give you Richard Reid. who wanted to bring down an airliner with a shoe bomb. He was caught by persons on the airplane after an initial effort to set the bomb off failed and then tried, convicted, and sentenced in an American court of law, not some secret military tribunal in Guantanamo Bay.

It could be that the draconian Homeland Security laws have nipped specific attacks in the bud but officials aren't telling us this because they don't want to provide potential terrorists with information as to how we go about catching them. Or we have not heard about such successes because there haven't been any. This is the Catch 22 that the CIA was in during the Cold War. We heard about its failures but it didn't want to tell us about its successes. One of the reasons why they might not have wanted to tell us about their successes is that they might have been more disturbing than the failures. I have in mind the overthrowing of the Allende government in Chile.

I understand why the US government wanted its Homeland Security apparatus. Terrorists represent a special class of criminal. I presume that some criminals might be reformable but terrorists are not in that class of criminals. Bank robbers know they are criminals. Terrorists believe they are not. They do what they do for reasons that seem to them to be perfectly rational and they see their actions as fully justified. American criminal law is ill-suited to dealing with terrorists.

Suppose that we have two groups of people we believe intend to engage in criminal acts. One group plans to rob a bank. The other intends to blow up the bank and kill everyone in the building housing the bank. One cannot arrest either group without probable cause and, given the application of standard provisions of criminal law, one cannot detain either group for more than a relatively short period of time without charging them with a crime. In advance of their carrying out their plans, the best one could hope for is a conspiracy charge. Sadly, that would surely mean that they would be offered a chance to get out on bail and move forward on their plans.

On a well-scripted TV show, our two sets of criminals would be shown putting their plans in action with, perhaps, our terrorist group planting of C4 all over the bank. At the last second, our heroic cops come in and arrest the bad guys red handed. In reality, while we may be willing to let the odd bank robbery happen because we didn't have enough evidence to arrest and incarcerate the bank robbers before the act, we cannot allow the odd terrorist attack to take place because our ordinary criminal laws are insufficient to stop the attack. And that is the rub. The American system of justice is designed not to protect us from future crimes but to capture and punish those who have committed crimes. By its very nature, conventional criminal law is incapable of dealing with terrorists.