The War on Terror and Measuring the Threat:
I've been enjoying the Opinio Juris blog debate on Ben Wittes's new book, Law and the Long War. I'm almost done with the book, which I have found a really excellent read: As with all of Wittes's work, it is thoughtful, balanced, and independent. But before posting some substantive response to the book, I wanted to flag a dynamic that I think is driving both the book and the blog responses to it: Assessments of the terrorist threat.

  My sense is that each person's assessment of the terrorist threat heavily influences where they come out on what measures the government should take in the war on terror. At bottom, everyone in this debate is a pragmatist. Everyone balances the values of advancing public safety by taking aggressive measures against the value of advancing civil liberties by rejecting those measures.

  The big difference comes in assessing the terrorist threat. Those who favor the most aggressive measures such as torture, detention without review, and lots of surveillance tend to see the terrorist threat as very grave in the short to medium time horizon. They consider terrorism an existential threat to the country, and they conclude that any step that might avoid a successful terrorist attack is a worthwhile step to take.

  At the opposite end, the civil libertarian critics of the Bush Administration tend to see the threat as relatively modest in the short to medium time horizon. Al Qaeda can be dangerous, sure, but they're no more dangerous than lots of other threats the country faces. Al Qaeda is just a few dozen people, and they can't threaten the county in any real way. And even though they want weapons of mass destruction, the chances that they would succeed in a way that causes many thousands or millions of U.S. casualties is actually relatively remote. To believe otherwise is to fall for the Administration's fear-mongering.

  The different assessment of the threat explains why the two sides of the debate often talk past each other. To those who see the threat as grave, it is inconceivable that some would insist on playing by Marquis of Queensbury rules and be more focused on world opinion than the threat to American lives. To those who see the threat as modest, on the other hand, it is inconceivable that some would ignore the rule of law and recklessly injure our standing in the world. Each side tries to optimize social welfare based on its assessment of the threat, and each side thinks the other is shockingly uninterested in that goal.

  Of course, assessments of the threat are often not entirely rational. They follow instead from a set of ideological and psychological views that make people more or less willing to see the threat as grave or modest. But I do think that many of the reactions presuppose a particular threat level, and we could perhaps make some progress on the legal questions if we were able to reach some agreeement on threat assessment.