Obama's Defensive Security Won't Work

By John Yoo, The Philadelphia Inquirer

Umar Farouk Abdulmutallab's Christmas Day attempt to destroy Northwest Airlines Flight 253 revealed one inconvenient truth: Playing defense in the war on terrorism is a losing strategy. The nation's best hope for victory is for President Obama and his advisers to learn offense.

Though Homeland Security Secretary Janet Napolitano retracted her "the system worked" statement within a day of making it, the embarrassing gaffe symbolizes the administration's error-prone terrorism strategy.

I'm not suggesting that this aborted plot justifies firing Napolitano anymore than Richard Reid's attempt to set off a shoe bomb on a flight eight years ago would have merited firing then-Homeland Security Adviser Tom Ridge. The dirty secret is that no security system is perfect. The question is, how many resources to spend, and whether we are willing to accept false alarms as the price for tougher border and airport controls. But Abdulmutallab's smooth entry may not have resulted just from probabilities, but from soft, politically correct policies.

Why, for example, are passengers from nations with lax security or heavy terrorist activity, especially those from the Middle East or Africa, not subjected to special scrutiny? Is it for fear of causing "offense" to international public opinion? Has the Obama administration retarded the integration of information by our intelligence agencies out of a touchiness for civil liberties? Some of the administration's political appointees had attacked the Bush administration's terrorist policies on exactly such grounds.

In addition, the Obama administration refuses to exploit the capture of Abdulmutallab, like a football team that recovers a fumble and then gives the ball right back. It reflexively decided to treat the al-Qaeda bomber as a criminal defendant rather than an enemy combatant under the laws of war. Though Abdulmutallab started to provide information, the administration provided him with a lawyer and read him his Miranda rights, whereupon he predictably shut up. The administration has decided that the public relations benefits of treating the terrorist as a criminal suspect somehow outweigh the need for immediate intelligence on al-Qaeda's network, its operations, and its attack plans.

Some justify Obama's treatment of Abdulmutallab by pointing to George W. Bush's decision to send shoe-bomber Reid and Zacarias Moussaoui (the 20th 9/11 hijacker) to federal court. But those mistakes - neither trial revealed any intelligence, and the latter's was a circus - should warn the administration against single-minded reliance on the law enforcement system.

Sacrificing effective security policies in the name of appeasing elite opinion is fast becoming this administration's leitmotif:

It announced the closing of Guantanamo Bay, without any practical alternative for the long-term detention of hard-core al-Qaeda terrorists.

It is rushing to release even more Gitmo detainees abroad - yet one former detainee, now in Yemen, has taken responsibility for Abdulmutallab's attack.

It ended all enhanced interrogations of terrorists, the most successful tool for gaining information on al-Qaeda's operations and plans.

It moved the trial of Khalid Sheikh Mohammed and other al-Qaeda leaders from congressionally approved military tribunals to federal court in New York, where they will have the same rights as an American citizen accused of a garden-variety crime.

So far, these moves have impressed no one. Neither Iran nor North Korean - nor their nuclear-weapons scientists. Not the European nations that have yet to rush to our aid in Afghanistan. Not the Russians, who squeezed the administration into giving up the missile defense shield in Eastern Europe.

Solutions to this state of affairs just may not reside in the Obama administration's civil-libertarian DNA. But here's how it should react to the Christmas Day attack:

Boost, rather than shy away from, the profiling of air passengers and those who cross the borders.

Amplify the use of data-mining techniques that pool together all available data, domestic and foreign, commercial or private, and lower the trigger for more intensive review of data patterns for potential terrorists.

Accelerate the integration of the intelligence agencies and law enforcement, force them to share more information faster, and replace the FBI's counterterrorism functions with a truly separate, independent counterintelligence agency.

Continue to detain al-Qaeda operatives as military prisoners and even interrogate them without lawyers or Miranda warnings.

In return for the softening of U.S. antiterrorism policy, al-Qaeda has redoubled its efforts to attack the United States. If Obama and his advisers don't have the stomach to take the steps needed to bolster domestic security, then they can take one last lesson from their predecessors: Go on offense.

The Bush administration took the fight to al-Qaeda abroad, and while it didn't succeed in killing or capturing Osama bin Laden, it kept al-Qaeda on the move and unable to concentrate on attacking the United States. It drew al-Qaeda's attention, resources, and personnel to Afghanistan and Iraq, where our military could meet them on the battlefield and away from defenseless civilian targets in the United States.

Obama's decision to surge 30,000 troops to Afghanistan is a good first step, but more such unilateral exercises of executive power - in the face of an increasingly hostile Congress - will have to finish the job abroad to ensure our security at home.

John Yoo, a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute, served in the Bush Justice Department. He is the author of the forthcoming book "Crisis and Command."