The national temperament has changed. But has the security environment?
NRPLUS MEMBER ARTICLE N o one who is under 18 was alive on September 11, 2001, the annual remembrance of which we will mark on Wednesday. The 9/11 jihadist atrocities are, at most, a dim memory to the generation of Americans who are now coming of age, who will be our leaders in the bat of an eye.
The page has been turned. As President Trump is wont to say, we’ll see what happens.
What is now happening is a turn to a pre-9/11 security footing. Notice, I said a turn, not a return. It remains to be seen whether, in reality, we have gotten to the point where our threat environment is what it was thought to be before the onslaught; yet, the country has determined to conduct itself as if that were the case.
It’s a bold experiment. I doubt that it will work, though I’d love to be wrong.
Signs of the change were all around us this week, at home and half a world away. In Virginia, a federal judge invalidated the Terrorist Screening Database, a watch list secretly compiled by the government, which subjects those listed to heightened security vetting before they are permitted to board commercial aircraft. In Kabul, the Trump administration’s envoy struck an agreement in principle to reduce the number of American troops in Afghanistan, with an eye toward a withdrawal that would purportedly “end” what the president describes as our “endless” war — U.S. forces having invaded the country in those tense days, 18 years ago.
Most striking about these developments is that they are a product not of evolving legal standards or conditions on the ground. They result from a changing national temperament.
That is neither a good nor a bad thing necessarily. It is a natural thing.
The regrettable legacy of 9/11 and its ambiguous aftermath is the intrusion of the courts into the national-security realm. Judges, whom we insulate from politics, have no constitutional responsibility for national defense. It is supposed to be left to the elected officials accountable to the people whose lives are at stake.
There is wisdom in making national-security decisions political rather than legal. The law strives for rigorous logic, a one-size-fits-all balancing of public-safety concerns against individual rights. Over time, judges reliably expand both the ambit of these rights and the categories of entitled individuals — to include even non-Americans who bear no responsibilities of citizenship, and even enemies who make war on Americans.
Politics, by contrast, strives for social cohesion through compromise. It is not bound by logic but by public perception — in security matters, the perception of a threat’s severity and of the reasonableness of responsive measures. Security measures should be ratcheted up in a time of high alert, particularly in wartime; but they should ebb as our sense of vulnerability wanes, as priorities other than our protection seem more urgent.
Right now, we are in the ebbing phase. For nearly two decades, we’ve longed for that. But is it here because it’s time, or because we long for it?
Judge Anthony Trenga’s watch-list decision (Elhady v. Kable) is a case in point. Our ostentatious airport-security procedures ensure that even those too young to remember 9/11 are only too aware that civilian airliners can be weaponized to horrific effect. Precautions have to be taken regarding who boards them; intelligence has to be gathered and acted on, with the threats weeded out. No sensible person disagrees with that. But this does not end the matter. It just tees up the hard choices that have to be made — the ones people prefer not to make . . . unless the threats seem so real and so immediate that they must be confronted.
Intelligence-based security can be effective only if the government can collect and analyze it in secret. Otherwise, we will get scant cooperation from key sources of threat information, from foreign intelligence services to people who’ve been admonished to say something if they see something. Yet we remain error-prone humans acting on imperfect information. A suspicion that a person could be a threat, however reasonable, will necessarily be wrong in some cases. Some innocent people inevitably will be harassed. On the other hand, if suspected people are given notice of, and a meaningful opportunity to challenge, their placement on the list, the list will no longer be secret. And if it is not secret, it will no longer be effective.
It is Congress that is supposed to wrestle with these tough line-drawing exercises. Legislative power is adaptable. It can adjust our precautions as the threat environment changes. It can adopt metrics that increase or decrease screening, while providing for searching oversight. It can ensure that the FBI and other executive security agencies are making decisions based on proper factors, that there are sensible standards for inclusion in the database, and that the inclusion of individual Americans is periodically reevaluated such that they are removed unless there is a good reason for their continued listing.
The executive is responsible for safeguarding the nation, so it will naturally err on the side of heightened security measures. The courts are a bulwark against government abuse, so judges naturally err on the side of individual rights. That’s why Congress is so essential. Lawmakers are supposed to account for these competing interests. But Congress does not do much legislating anymore. It delegates, leaving members more TV time to complain about how bad things are. While many of us are not fans of having judges draw the lines, someone has to do it. When the politically accountable officials duck, courts must fill the void.
The government tried to persuade Judge Trenga that it responsibly vets the database. The Justice Department insisted that the FBI and its partner agencies could be trusted to manage the list; the court should stay its hand, since this was a national-security matter. Plus, the claimants lacked standing: They were unable to say whether they are actually on the list, and merely speculated that they’d be harmed in the future. Moreover, the government maintained that any harm was merely inconvenience: No one was being prohibited from flying and no one has a reasonable expectation of hassle-free international travel; national-security concerns must take precedence, notwithstanding the plaintiffs’ horror stories about temporary detention, stigmatization, and professional damage.
These arguments would have carried the day in 2002, and probably for a number of years after that. But in 2019, the FBI’s claims of trustworthiness are not apt to be taken at face value. Courts are not likely to indulge the government’s Catch-22 standing arguments (“They can’t prove what we won’t tell them”). And, most significantly, what may seem like trifling inconveniences when people believe the next terrorist attack is imminent become major concerns — and now, legally cognizable damage — when 9/11 is a fading memory, and when the precautions taken to prevent its repetition have ushered in a sense of security, a perception that the threats have been exaggerated.
Meanwhile, in Afghanistan, the Taliban have greeted the announcement of a near-term U.S. withdrawal not with reciprocal toasts to peace in our time, but with a series of terrorist attacks. The latest (at least as this is written) was on Thursday, killing an American soldier along with a Romanian soldier from our allied forces, as well as eight others.
See, what our government frames as “peace” talks the Taliban are portraying as surrender. They are attacking because they want Afghans to believe they are driving the superpower out in humiliating defeat, just as their mujahideen forebearers drove out the Red Army, hastening the Soviet empire’s collapse.
This week, we learned that former defense secretary James Mattis quit Donald Trump’s administration because, he told the president, he refused to be the Pentagon chief who lost to ISIS in Syria. So far, Secretary of State Mike Pompeo has declined to sign off on the “peace” deal negotiated by the administration’s emissary, Zalmay Khalilzad. Obviously, he doesn’t want to be remembered as the foreign-policy chief for an American government that lost to the Taliban.
In the negotiations, the Taliban are insisting that the Trump administration refer to them as the Islamic Emirate of Afghanistan. That was what their regime was called when it imposed sharia governance on the country from 1996 through late 2001. Those were the years when they gave safe harbor to al-Qaeda, which proceeded to execute mass-murder attacks on American diplomatic, military, political, and economic targets. These culminated, 18 years ago, in 9/11.
As this week reminds us, the Taliban still fights shoulder-to-shoulder with al-Qaeda to kill Americans. When our troops vacate Afghanistan, the Islamic Emirate will be reestablished, the U.S.-backed government will be dismantled, Afghans who allied with the United States will be purged, and al-Qaeda will set up shop again. It will enjoy a status similar to that of Hezbollah in Lebanon: a quasi-government armed force whose main focus is the global jihad.
Its main target is still America.
In 2019, you can declare you’re in a pre-9/11 world. Just like you can declare a war is over because you got tired of fighting. Just like you can declare the aviation precautions are overkill because you’d like them to be. Doesn’t make it so.