When it comes to homeland security, we've been seduced for more than a decade by a "preemptive" mandate that directs us to catch terrorists before they strike next. Where law enforcement once investigated crimes to determine who was responsible and how they could be prosecuted, it now also gathers intelligence to prevent potential future crimes.
This mandate, however, has been characterized by a distinct absence of actual terrorist plots. Instead, we've seen an increasingly familiar pattern — the most recent case in the last few weeks involved four young Southern Californians who were arrested in a case built largely by a well-paid informant. The young men allegedly were on their way to join Al Qaeda. One of them was already abroad. The others had booked flights through Mexico to Afghanistan and, according to the government, played proxy holy war at a paintball course and exchanged macho emails.
Would they have become truly dangerous to America? Maybe. But in the past, these stings have mostly put behind bars a lot of impressionable young men — rather iffy bad guys — who were often urged toward jihad by the intelligence operation targeting them.
Along the way, constitutional protections such as the presumption of innocence and the right to a fair trial have been put at risk. Everyone is a potential suspect, and everyone is under surveillance.
As President Obama embarks on his second term, among the key questions he faces is how he will continue to wage the war on terror. Many of these questions have been focused overseas — on the withdrawal of troops from Afghanistan, on drone warfare and what to do with the U.S. detention center at Guantanamo Bay in Cuba.
But domestically we're not debating the overreach of our counter-terrorism efforts, which involve primarily the FBI but also state and local law enforcement. Among the kinds of things deemed suspect by the L.A. Police Department, for example, are people who take photos "with no apparent aesthetic value" or who carry on "long conversations on pay or cellular phones."
The unprecedented expansion of intelligence gathering comes with a host of enhanced surveillance and investigative tools that erode civil liberties but offers little evidence that we are safer from another terrorist attack. Many of these measures were first introduced under President George W. Bush through legislation such as the Patriot Act. Under Obama, they appear increasingly entrenched in our national security landscape.
These amplified investigative powers were originally part of an emergency response to the 9/11 attacks. The FBI, as the agency responsible for counter-terrorism in the U.S., shouldered the brunt of recriminations over missed cues that might have forestalled the attacks, and its director, Robert S. Mueller III, found himself battling calls for the FBI to be broken up into two agencies: one tasked with traditional law enforcement and the other focused on intelligence gathering. To stave off the loss of half his institutional footprint, Mueller assured Congress that the bureau could be a model of law enforcement and intelligence gathering.
The implications of this now-institutionalized model have not troubled most Americans, probably because "intelligence-led policing" has focused on a beleaguered and relatively powerless minority, Muslim Americans. But it is already being deployed against ever-expanding categories of "suspect" citizens.
Under Obama we have seen the offices of longtime antiwar protesters in Chicago and Minneapolis raided on suspicion of providing "material support" to Palestinian and Colombian terrorist groups; in New Jersey, animal rights activists were convicted under a new law that makes any "interference" with an animal-related company a potential crime of terrorism; and in Oregon and Washington, environmental activists were similarly convicted as terrorists for arsons they had committed to protest public lands policies and wilderness development.
A chief repository of domestic intelligence data are the nation's more than 70 "fusion centers." Staffed by local, state and federal officials but largely funded by the Department of Homeland Security, these centers have been described by Homeland Security Secretary Janet Napolitano as among the "centerpieces of our counter-terrorism strategy." But a Senate report published in October found that the intelligence produced by these centers was "often shoddy, rarely timely" and "more often than not unrelated to terrorism." The investigation identified "no reporting which uncovered a terrorist threat, nor could it identify a contribution such fusion center reporting made to disrupt an active terrorist plot."
The template of the government's major "homegrown" plots, where informants largely invent the plot, agree to supply the weapons and encourage the inflammatory rhetoric that elevates the crime to the level of terrorism, continue to be cited under the Obama administration as evidence that we are winning the war on terror. But in the few instances where an actual attack was attempted — from the 2001 "shoe bomber," Richard Reid, to the 2010 Times Square bomber, Faisal Shahzad — the plots have apparently surprised the law enforcement intelligence apparatus, and the attackers have been caught because of their own ineptness and the prompt actions of civilians.
That the preemptive paradigm is largely intact suggests we are still haunted by the failures of 9/11. It may be politically expedient for the president to err on the side of national security against civil liberties for fear of being seen as soft on terrorism, but he should consider his legacy. Bush is the president who launched the war on terror. Will Obama go down in history as the one who made it permanent?