Eleven suspects have now been formally charged with terrorism offenses in the British jihadist plot, uncovered nearly two weeks ago, to bomb U.S. civilian aircraft in flight over the Atlantic. More charges will almost surely follow, and it may be two years before the accused are tried in court. But important though it is to prosecute the guilty, what matters most is that they failed to execute their attack. Counterterrorism is about saving lives, and its primary emphasis must accordingly be prevention. On that front, the foiled British plot has already taught us several important lessons about how to keep America safe.
The most elementary is: We don’t have enough spies. The British investigation appears to have been advanced immeasurably by the ability of the domestic intelligence service, MI-5, to insinuate a covert agent into the conspiracy. The aggressive use of traditional investigative techniques, like wiretapping and physical surveillance, will always be essential to any strategy aimed at disrupting terror plots before they become serious perils. But these tools will be insufficient without human intelligence — informants with access to top terrorists and their sanctuaries.
For all the billions we have spent restructuring the intelligence community, our most critical need goes largely unmet. In February, the Washington Times reported that the number of American intelligence case agents had dipped below 1,000 globally during the Clinton administration — that is, down to 12 percent of what it had been in the 1980s. Former CIA director George Tenet conceded in a 2004 speech (after nearly a decade on the job) that the clandestine service he had inherited was so diminished that rebuilding it would take until at least 2009.
The British investigation, depending as it did on human intelligence, proves just how reckless we have been. Terrorist cells which practice fundamentalist Islam are insular and disciplined — which is why, for example, Osama bin Laden has managed to evade capture despite being under indictment by the United States since mid-1998 and despite being the world’s most wanted man since 9/11. It takes long, determined labor to infiltrate terrorist ranks. Recruits must convince jihadists that they are not merely steeped in the militant ideology but actually living the militant life; disgruntled insiders who might be persuaded to turn and work with us must get past the fear that barbarous murder is the fate of suspected traitors. This is often the work of years, and there is so far little indication that we are doing it well.
The British investigation also underscores the necessity of the tactics that the Bush administration has used since shortly after 9/11, including the Patriot Act, the NSA’s Terrorist Surveillance Program, and the Terrorist Finance Tracking Program. The British jihadists were thwarted because intelligence agencies worked seamlessly not only with domestic criminal investigators but also with their overseas counterparts — principally the Pakistani and American intelligence services. They chased leads, eyeballed suspects, eavesdropped on conversations, tracked money, and pooled information. Angst over hypothetical privacy violations did not prevent the right hand from knowing what the left hand was doing, with the happy result that a full threat mosaic was assembled before it was too late. Those who fought to preserve the Patriot Act and similar tools should take a bow, while those who bragged of trying to kill them (we’re talking to you, Senator Reid) should be ashamed.
Homeland Security secretary Michael Chertoff aptly observed that “[w]hat helped the British . . . is the ability to be nimble, to be fast, to be flexible, to operate based on fast-moving information. We have to make sure our legal system allows us to do that.” He was doubtless referring in part to the UK’s less demanding standards for obtaining national-security wiretaps, which do not involve court approval. This is common sense, and explains why President Bush’s NSA program, despite the relentless caterwauling against it, remains popular.
A Michigan federal judge’s embarrassingly sloppy attempt last week to find that program unconstitutional would, if upheld, undermine our security by making it vastly more difficult to penetrate the enemy’s wartime communications. And the 1978 FISA law, which mires our intelligence gathering in the technological limitations of a bygone era, badly needs reforming. While not perfect, Sen. Arlen Specter’s proposed overhaul is a substantial step in the right direction, and should be passed when Congress returns from its recess.
We should also ask what we can learn from the British system of preventive detention. Given our dearth of intelligence, the information that puts terror suspects on our radar screen is frequently sketchy. Even when of better quality, it often cannot be used in court (because, for example, it comes from foreign intelligence services which impart it on the condition that it will be held closely). Counterterrorism differs from conventional law enforcement in that failing to act on suspicions can have catastrophic consequences. Yet U.S. law generally requires charges to be filed before suspects can be held. As a result, the government is forced to rely on legal tools unrelated to terrorism — such as material-witness warrants and prosecution for immigration offenses — to protect the country from another 9/11.
But if our national security is indeed imperiled, it is preferable to do what the U.K. does: forthrightly permit a reasonable period of preventive detention, under court supervision, and with legal representation for the detained. To be sure, existing judicial precedents and proper parsing of the U.S. Constitution should enable our government to hold suspects without charge for longer than the customary 48 hours. Investigators would then have more time to determine the authenticity of threats, build viable prosecutions, and explore alternative options (such as deportation). No longer would they immediately confront the terrible choice between either inventing legally plausible reasons to detain a would-be terrorist or leaving him at liberty until there is enough usable evidence to charge him.
The British plot is, above all, a reminder that we are in the early stages of a long war. If we mean to win, we must get serious about knowing our enemy.