David Kris on Criminal Prosecution as a Counterterrorism Tool

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 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 context of terrorism investigations.9