“Incentives for Cooperation”

David Kris gave a speech at the Brookings Institute last week, largely intended to make the case for civilian trials. Here’s the main framework of the speech:

Today, however, the consensus that developed in the aftermath of 9/11 shows some signs of unraveling.  In particular, there are some who say that law enforcement can’t – or shouldn’t – be used for counterterrorism.  They appear to believe that we should treat all terrorists exclusively as targets for other parts of the Intelligence Community or the Defense Department.

The argument, as I understand it, is basically the following:

  1. We are at war.
  2. Our enemies in this war are not common criminals.
  3. Therefore we should fight them using military and intelligence methods, not law enforcement methods.

This is a simple and rhetorically powerful argument, and precisely for that reason it may be attractive.

In my view, however, and with all due respect, it is not correct.  And it will, if adopted, make us less safe.  Of course, it’s not that law enforcement is always the right tool for combating terrorism.  But it’s also not the case that it’s never the right tool.  The reality, I think, is that it’s sometimes the right tool.  And whether it’s the right tool in any given case depends on the specific facts of that case.

Here’s my version of the argument:

  1. We’re at war.  The President has said this many times, as has the Attorney General.
  2. In war you must try to win – no other goal is acceptable.
  3. To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

We must, in other words, be relentlessly pragmatic and empirical.  We can’t afford to limit our options artificially, or yield to pre-conceived notions of suitability or “correctness.”  We have to look dispassionately at the facts, and then respond to those facts using whatever methods will best lead us to victory.

Put in more concrete terms, we should use the tool that’s designed best for the problem we face.  When the problem looks like a nail, we need to use a hammer.  But when it looks like a bolt, we need to use a wrench.  Hitting a bolt with a hammer makes a loud noise, and it can be satisfying in some visceral way, but it’s not effective and it’s not smart.  If we want to win, we can’t afford that.

If you take this idea seriously, it complicates strategic planning, because it requires a detailed understanding of our various counterterrorism tools.  If you’re a pragmatist, focused relentlessly on winning, you can’t make policy or operational decisions at 30,000 feet.  You have to come down, and get into the weeds, and understand the details of our counterterrorism tools at the operational level.

And that leads me to this question:  as compared to the viable alternatives, what is the value of law enforcement in this war?  Does it in fact help us win?  Or is it categorically the wrong tool for the job – at best a distraction, and at worst an affirmative impediment?

It really summarizes the Obama Administration’s embrace of man-ego-driven “pragmatism” and wonkiness in all things. The response to outright demagoguery (the “we are at war so we must torture and kill kill kill” perspective), the Obama Administration presents an alternative, purportedly pragmatic formulation that suffers from its own problems.

“We are at war either because of or as evidenced by the fact that the two big men keep saying we are.” Sure, Kris’ speechwriter might just have been trying to rebut the nutters who like to score points by claiming that Obama doesn’t agree with Dick Cheney that This Is War. But note what it does for this entire “pragmatic” argument: it presents the fact–“we are at war” with no examination of either the statement itself or the nuance covered up by it. It avoids questions like, “Against whom are we at war?” “Are we just at war against formal members of al Qaeda, or are we also at war against American losers who read Anwar al-Awlaki on the interToobz and go on to buy a GPS but never actually succeed at contacting anyone from al Qaeda?” “Why are we at war against some terrorism but not other terrorism and, at this point, are we even targeting the most effective and dangerous terrorists?” “What is the objective of this war?” “If we’ve embraced the concept of war, have we also embraced the legal concepts of war?” The Obama Administration has, like the Bush Administration, actually picked and chosen when it wants to claim to be at war and when that’s inconvenient; with a little more examination of the premise itself, we might be able to find a more reasonable way to resolve these inconsistencies. But “pragmatic” claim notwithstanding, this entire thought exercise starts by refusing to examine the foundational premise.

“We’re at war and so we must win!” Here’s where unexamined first principles, driven by man-ego, really introduce problems into this formula. Sure, if you’re at war, you want to win it (though it helps to define what winning looks like). But it assumes certain sorts of acts in its definition: “We must crush those Islamic extremists in our bare hands and eat them for breakfast!” (If you’re John Yoo, you must crush the testicles of Islamic extremists’ children…)It assumes an ego victory against our nominal opponent. And that, to some degree, rules out the more logical objective: “We must make our country and our allies safe from preventable terrorist attacks and minimize the damage any one attack can cause.” That’s the difference between focusing on infrastructure and persuasion rather than arresting losers with an internet connection and a fondness for extremist speech, of whatever type. It’s also a perspective that allows you, at the same time, to address other, larger threats, such as that a deep water oil drilling platform will blow up and destroy one of your most important ecosystems. It’s the difference between single-minded myopia and protecting the country against all threats, including international terrorists, domestic terrorists, environmental disaster, and financial disaster using means that are adequate to the relative danger of the threat.

“We must use the best tools available to win this war.” I don’t so much have a problem with using the best tool available, but if doing so is not tied to the most logical objective because you’ve injected unexamined man-ego into the equation, the “best tool” may not in fact be the best tool. Pragmatism is no good if it serves an unexamined goal that may not, in fact, be the “pragmatic” solution to our problem. Obama has said that persuasion needs to be an important goal, but once you’ve declared a fight to the death with your “enemies”–particularly given the expansive definition of enemy–then you radically undercut the effectiveness of persuasion.

All this discussion about unexamined assumptions is just background to this paragraph, which I find to be the most fascinating (in a car wreck way) paragraph in the speech. In the middle of list of advantages civilian trials offer over military commissions, Kris lays out the critical issue of incentives for cooperation.

Incentives for Cooperation.  The criminal justice system has more reliable and more extensive mechanisms to encourage cooperation.  While the military commissions have borrowed a plea and sentencing agreement mechanism from the courts-martial system which could be used for cooperation – Rule 705 – this system has not yet been tested in military commissions and its effectiveness is as yet unclear.  In law of war detention, interrogators can offer detainees improvements in their conditions of confinement, but there is no “sentence” over which to negotiate, and no judge to enforce an agreement.  Detainees may have little incentive to provide information in those circumstances.  On the other hand, in some circumstances law of war detainees may lawfully be held in conditions that many believe are helpful to effective interrogation.

Kris makes an absolutely critical point: everything about the nature of our military commissions system precludes making deals with suspects (though Kris doesn’t get into some of the biggest impediments to cooperation, such as the embrace of inaccurate information if it feeds the man-ego war narrative, and the sheer arbitrary nature of the system). We got Reid and Abdulmutallab and Shahzad to cooperate because they faced worse punishment if they didn’t. But thus far, the most successful way we’ve had to convince military detainees to cooperate is to kidnap and threaten the innocent family members of those detainees, which whether we’re at war or just fighting terrorism is patently illegal. So it’s a slam-dunk that civilian trials offer more tools to get detainees to cooperate, right?

Which is when Kris throws in his last sentence: “On the other hand, in some circumstances law of war detainees may lawfully be held in conditions that many believe are helpful to effective interrogation.” He sounds like a bad DC journalist here, with his “many believe” qualifier to the claim that certain “conditions” used “in some circumstances [with] law of war detainees” “are helpful to effective interrogation.” This feels like another sentence–even more than the “we’re at war sentence”–that Kris’ speech-writer put into this speech for him. It effectively turns the paragraph from, “only civilian detention offers real incentives to get detainees to cooperate” to “plea agreements work like a charm, but we’ve got to keep Appendix M’s abusive techniques around because ‘many believe’ that they can be ‘helpful’ to interrogation.”

We are at war, the big men have told us, so we must win this war. And that means keeping detainee abuse around as a tool because it’s the only thing that can replace the very effective plea bargain in the Kafkaesque detention system we’ve created because we are at war.

28 replies
  1. BoxTurtle says:

    I’ve said it before and I’ll say it again: This is not war, this is pest control.

    You don’t use the marines to kill roaches. You send in a professional roach killer who targets a specific area, knowing full well he’s only going to get MOST of the roaches. So if you don’t clean up what attracts the roaches, they’ll be back.

    You don’t firebomb the neighborhood in hopes of getting all of them.

    What attracts these roaches starts in Israel. And until we address that, it doesn’t matter how many exterminators we use. The roaches will breed faster than we can kill them.

    Boxturtle (Admittedly, it’s more fun to hit roaches with a hammer than it is to clean a kitchen)

    • b2020 says:

      “I’ve said it before and I’ll say it again: This is not war, this is pest control.”

      Aah – blattodephobia. Which explains the bed-wetting hysteria that leads to:
      “We need… must have… maintain… can’t change.”

      Poor dears. You are well and truly fucked then, are you not?
      But I said that before.

      On the one hand, Need. More. Guns.

      On the other hand, there you are, in the middle of the night, shaking in front of the mirror, telling yourselves: “We can beat any country without WMD. We can can fight any country with WMD to at worst a tie.” And all because of those untermenschen you could crush under your foot at any time… as long as you have some military-grade jackboots on them, anyway, and as long as it is somebody else’s foot that does teh crushing, preferably by remote control. But there are so *many* of those roaches – I mean, intention versus capability and all, we gotta tkae a hard-eyed realistic stance here, we are talking SIX BILLION and COUNTING!

      A name is important. It is an instrument of teaching. Sometimes, the teaching is accidental – collateral damage. You can see all of life as pest control if you want to – there are certainly moments where what passes for discourse on the intertubes has all the intellectual appeal of battling pestilent memes – but don’t be surprised if everything you touch then takes on the slightly fruity odor of tabun.

      Talk about Knowledge-enabled Mass Destruction. Maybe it is better to close the schools and built more aircraft carriers, after all.

    • drhu22 says:

      I think that’s a very good analogy, except that snakes might be more appropriate than roaches. Still, you don’t raze the neighborhood.

  2. ezdidit says:

    I can only hope that the President is actually intelligent and resourceful, thoughtful and practical – for the sake of national safety. But if this was supposed to be an article of faith among Obamabots like me, he sure has denounced it as a model for governance. I am now left with doubts about his brilliance. And I am disgusted with his policies, unless these are just political cover for better policies that are actually being used.

    I’m really thinking he is operating, and not operating, under personal threat.

  3. PJEvans says:

    Here’s my version of the argument:

    1. We’re at war. The President has said this many times, as has the Attorney General.
    2. In war you must try to win – no other goal is acceptable.
    3. To win the war, we need to use all available tools that are consistent with the law and our values, selecting in any case the tool that is best under the circumstances.

    I’d hope that he can do a better job of arguing than that, because that’s just crap.
    1) ‘Whatever the president says is right’ – so we’ll jump off a cliff because he says to jump off.
    2) When it becomes obvious that you can’t win, then winning is no longer a goal. And you can’t defeat a tactic, which is what terrorism is.
    3) So far all the tools we’ve used are hammers of varying type and weight. We’re clearly looking at a situation where hammers are making it worse. Not using hammers on it is a first step….

  4. BoxTurtle says:

    I am now left with doubts about his brilliance.

    It’s 11 dimensional. At most, normal people can only see four at a time. So his brilliance is dimmed by 2/3 or so.

    Boxturtle (Feingold/Whitehouse 2012)

  5. fatster says:

    Thanks for highlighting this speech, EW. I read it and it made my brain hurt. They cannot figure out how to extricate themselves from the mess that’s been created by ignoring and twisting the law in support of the lies that got us into Iraq and beyond. And they just keep digging.

  6. b2020 says:

    “We’re at war and so we must win!”

    Yeah, it is quite disturbing.
    My argument starts with: “We are full of shit, and we must change.”

    • BoxTurtle says:

      And I want fewer uncertified/temporary teachers in my schools.

      Boxturtle (Military can at least hire pros, local schools sometimes gotta take what’s breathing)

  7. 1der says:

    The thinking, IMO, seems to follow this logic: We’re at war, we have the best generals and planners ever, we have a winning plan if we use the right tools, the tools we have aren’t the best therefore we aren’t winning so we need better tools because we have a winning plan. Or as Chuck Knoblach said – “It’s the ball!”

    And if all isn’t going according to plan? No one could have predicted:

    The Guardian, Friday 6 September 2002
    “Millennium Challenge was the biggest war game of all time. It had been planned for two years and involved integrated operations by the army, navy, air force and marines. The exercises were part real…”
    “In fact, this war game was won by Saddam Hussein, or at least by the retired marine playing the Iraqi dictator’s part, Lieutenant General Paul Van Riper. In the first few days of the exercise, using surprise and unorthodox tactics, the wily 64-year-old Vietnam veteran sank most of the US expeditionary fleet in the Persian Gulf, bringing the US assault to a halt.”

    We just call a “do over!”: “What happened next will be familiar to anyone who ever played soldiers in the playground. Faced with an abrupt and embarrassing end to the most expensive and sophisticated military exercise in US history, the Pentagon top brass simply pretended the whole thing had not happened. They ordered their dead troops back to life and “refloated” the sunken fleet. Then they instructed the enemy forces to look the other way as their marines performed amphibious landings. Eventually, Van Riper got so fed up with all this cheating that he refused to play any more. Instead, he sat on the sidelines making abrasive remarks until the three-week war game – grandiosely entitled Millennium Challenge – staggered to a star-spangled conclusion on August 15, with a US “victory”.” http://www.guardian.co.uk/world/2002/sep/06/usa.iraq

    The Best and Brightest. Hope & Change is not a brand name.

    • fatster says:

      Bravo! You remembered that incident (I had forgotten), and brought it back to life in all its full-blown irony. Thanks.

    • skdadl says:

      As fatster says, a wonderful story. If General Van Riper did not come off as the good guy in that story, I would remark on the irony of his name if just one letter were doubled, but instead I’ll join him on the sidelines making abrasive remarks at the brass.

      • fatster says:

        Maybe you could learn to do that guy thing of putting your hand in your armpit, moving your elbow up and down vigorously and making that horrible noise.

        • skdadl says:

          fatster! I’m a li’l ole lady sitting on the north shore of Lake Ontario. I can’t imagine what you’re talking about. (I’m practisin’, though. It’s freaking the kitties a bit.)

  8. bobschacht says:

    Thanks for this, and for examining the unexamined assumptions.

    With you, I challenge the blind acceptance of the “We are at war” meme. But I’d like to add one more aspect to the mix: Blindly accepting the “we are at war” meme avoids questioning the cost, and avoids evaluating other tactics that may be more cost effective. Our security is not enhanced by bankrupting ourselves in massive gestures in futility. For example, in Afghanistan, our “ally” Karzai is professing doubt in public that we can defeat the Taliban, and I think he’s probably right. The “war” in southern Afghanistan is not going well, and McCrystal is publicly stating that it will take “longer” to achieve our goals. Meanwhile, we have a budget crisis at home, as we borrow more money from our children to pay for this war of choice. Its all catywompus.

    Accepting the “we are at war” meme uncritically leads to catywompus thinking. And this is not news. Luke 14:31
    “31 Or what king, going out to wage war
    against another king, will not sit down
    first and consider whether he is able with
    ten thousand to oppose the one who
    comes against him with twenty thousand?
    32 If he cannot, then, while the other is
    still far away, he sends a delegation and
    asks for the terms of peace.”

    Now, Republicans, even the Christianists among them, would rebel at this Jesus-logic. “You can’t negotiate with terrorists!” would be their cry. So instead, they would gladly bankrupt us and mortgage our children’s future– because when they say “We have to cut spending” what they mean, of course, is that we have to cut spending on social programs, rather than cutting spending on futile military exercises overseas.

    Bob in AZ

    • skdadl says:


      My new word for the weekend. Now you’ve got me looking up derivations. The most common source I’m finding is for all our variations on the cater- words, like catercorner (cadycorner, kittycorner), an anglicization of the French quatre coins (four corners). Sounds possible.

  9. MadDog says:

    After I had originally read his speech, one of the most troubling additional aspects that came to mind, was how much of this speech by David Kris represented the Obama administration’s thoughts and policies of having to retroactively attempt to construct a substantive legal edifice for the past Bush/Cheney regime’s actions, and using the only tools left available of second-hand chewing gum and used dental floss.

    The retroactive and patchwork nature of their arguments and logic is of course obvious, but even more obvious is the foundational nature of the “elephant in the room”.

    That “elephant” is:

    “We’ve got a bunch of people captured, imprisoned and tortured by the previous regime, and little or no evidence. How do we avoid dealing with that lack of real evidence while at the same time burying these prisoners out of public view forever so that nobody figures out how big a clusterfuck this really is?”

    This has never been about “the law”, but instead about “covering up” so as to willfully avoid having to acknowledge our mistakes and the errors of our ways.

      • MadDog says:

        Yeah, but… *g*

        Perhaps I retain my naive innocence in hoping that had there not been these “past” thingies to bury, there would be none who would dare construct such absurd arguments for papal executive infallibility.

        • fatster says:

          I share that with you, MadDog. I, too, have been hoping they got so deep into that hole that they can’t get out and so just keep on digging–as a matter of habit. But, bmaz is correct, I think. Once they got into that hole they discovered all the powerful treasures left by their predecessors, and they like that power far too much. Reminiscent of The Ring and what it does to the wearer. Unfortunately, we got no bearer to go get it and throw the damned thing into the fire of Mt. Doom.

    • skdadl says:

      The retroactive and patchwork nature of their arguments and logic is of course obvious, but even more obvious is the foundational nature of the “elephant in the room”.

      That “elephant” is:

      “We’ve got a bunch of people captured, imprisoned and tortured by the previous regime, and little or no evidence. How do we avoid dealing with that lack of real evidence while at the same time burying these prisoners out of public view forever so that nobody figures out how big a clusterfuck this really is?”

      This has never been about “the law”, but instead about “covering up” so as to willfully avoid having to acknowledge our mistakes and the errors of our ways.

      Taking into account bmaz’s commentary as well, that is just so wonderfully well put, MadDog.

  10. Frank33 says:

    David Kris heads the “National Security Division”. This is just the same thing as Jamie Gorelick’s “wall”. Law Enforcement is replaced by secret police and spies. Anything about Al Qaeda has the highest security classification. IThe best way to stop these criminals to to reveal everything about them. And they are common criminals whose finances are also kept secret by the intelligence community.

    This is a pattern creating extra legal government institutions. We have “Homeland Security” to spy on “leftists” and whistleblowers. It is Gorelick’s “Wall” extended to the whole government and directed especially against whistleblowers. We have “Civilian Trials” replaced by “Military Commissions”. But there is no such thing as a “civilian” trial, at least in the Constitution. It is a Court Trial with protections against a police state. Even Dennis Blair of DNI tried to create his own network of spies to spy on the CIA.

    Al Qaeda Does Not Exist.

  11. Frank33 says:

    Everybody knows about Najibullah Zazi, the guy from Colorado who went to New York, David Headley in Chicago, both of these guys have pleaded guilty and they’re awaiting sentencing, and now most recently we’ve had Faisal Shahzad from Times Square.

    Headley wa a double agent working for the DEA and the Pakistan ISI. Kris does not mention that. This might even be Breaking News. The Mumbai Attacks were guided by ISI, Pakistan’s secret police.

    Headley has mentioned serving officers of Pakistan army — Major Sameer Ali, Major Iqbal and Major Haroon — as those who collaborated with the Lashkar terrorists. Major Sameer and Major Iqbal figured in the dossier India gave to Pakistani foreign secretary Salman Bashir.

    NIA’s sessions with Headley tally with what he is learnt to have told the FBI, including the crucial bit about Hafiz Saeed being in the loop through the plot. Whether the disclosures that undercut its denial will lead Pakistan to step up its cooperation with the 26/11 probe remains to be seen.

    Home minister P Chidambaram is to demand voice samples of seven Lashkar commanders including Zakiur Rahman Lakhvi, Zarar Shah, Abu Al Qama and others when he meets his Pakistani counterpart Rehman Malik during his visit to Islamabad for the conference of home ministers from SAARC region. Pakistan has so far refused to give voice samples which could help investigators ascertain the identity of those who instructed the 26/11 attackers as they went about their deadly assignment.

  12. Mary says:

    Bc of a some odd circumstances, I’m reading this just as I’m watching Judgment at Nuremberg.

    Kris has been a big disappointment – imo on the level of Koh and I guess bmaz would maybe look to Jeh Johnsen as another big disappointment.

    What I will give Kris credit for, though, is that he really has laid out (without claiming them as his own, “The argument, as I understand it,” & “Here’s my version of the argument”) the specifics of Obama Admin arguments, with all their soft underbellies exposed.

    When someone like Kris says, “We’re at war. The President has said this many times, as has the Attorney General.” he’s not, like a Yoo or a Bybee, saying it with the lack of civics understanding that it is not the President and AG who say we are at war, but with the very directed point that within the President’s and AG’s DOJ, their determination is either adopted by their minions or those minions resign.

    As I was reading this, I was listening at the same time, halfway, to the first witness on the stand in the Nuremberg movie, talking about Judges in Nazi Germany and what happened with them, as they began to enforce their dictator’s rules, to *hand over the administration of justice to a dicatorship.* And, the witness noted, the judges – they either resigned, or they “adapted.” That’s the adaptation that Kris (and it disturbs me more than most of the others, bc I was more impressed with him than others) is acknowledging with his speech. *We* are the DOJ, *we* are no longer lawyers with independent judgment and counsel, but rather we are appendages of the President and AG.

    *We,* the DOJ, are either their hammer or their “wrench” and our job is no longer to be involved in any way with the administration of justice, but rather “winning” their “wars” for them, no matter who they declare war on, or to what purpose. Lawyers who never require that term be defined – Kris knows better.

    The hammer and the wrench, I read that while listening to the witness in the movie, being cross examined on sexual sterilization of the politically oppressed and wrong ethnicity and race. And watch while an endorsement of sexual sterilization is read from an opinion of O.W. Holmes, in Buck v. Bell, on eugenic sterilizations, a case where only one justice dissented. When the war was made on “imbeciles” and the only focus was on winning the war.

    Kris makes it very clear, and Mad Dog @16 summarizes it well, that the Bush Obama DOJ does not see it’s role as having anything to do with justice or law. It’s role is to be a Hammer or a Wrench (or Sock puppet) all, as necessary, not to achieve the administration of justice, but to enable the “President” and “AG” to “win” their unilaterally declared “wars” on an amorphous category of self-declared “enemies”

    Kris very consciously frames the big failing of of the Bush-Obama argument,
    In war you must try to win – no other goal is acceptable.”

    Actually, under the laws of war, there are acts that are unacceptable. Under the Code of Professional Conduct for lawyers, there are acts that are unacceptable. Under the religious precepts of almost all religions, there are acts that are unacceptable. Without question, in the administration of justice, there are acts that are unacceptable.

    When the lawyers of the Administration look at detainees gathered from around the world and subjected to depravities and their only thought is, “should we get a hammer or a wrench” to finish them off, then we’ve lost whatever war Kris thought existed.

    The only appropriate “goal” of war is a lasting peace. That’s what underlies Bob’s biblical quote @11, but it’s something that is so central that its ommission from Kris’ argument synopsis is huge. When the goal of the war isn’t to put in place a lasting peace in its aftermath, but instead is to do anything to anyone to gain any goal, then you have established a war that, definitionally, can never be won.

    Peace never comes without justice.

    But, as the reporter I was just watching in the movie has said,
    “The American Public just isn’t interested anymore”

    It’s people like Kris that spearhead that lack of interest and I think that’s the biggest shame of it all. Those to whom so much were given by grace have so carelessly used those gifts to such unjust ends.

    No wonder America doesn’t care anymore – this is all that being one of the brightest and the best means in America. How do you look fate in the eye and say that this, what we have become, is deserving of “winning” much less of peace.

    Turning off all of it – internet and movie – for now. It’s just too depressing.

  13. fatster says:

    If confirmed, Kagan will have to recuse herself on several cases, including Arar.

    Kagan confirmation would affect major tobacco case


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