The authors of the book, Less Safe, Less Free: Why America is Losing the War on Terror, are two constitutional scholars; David Cole (Georgetown University Law Center) and Jules Lobel (University of Pittsburgh). They argue that the “war on terror” has not actually made us safer. The problem, they argue, is rooted in the “preventive paradigm” adopted by the Bush administration in the wake of 9/11. That paradigm resorts to the use of aggressive coercive government measures without any evidence of wrongdoing by the individual in captivity; but rather on the basis of speculation about possible future threats. The authors argue that

“the preventive paradigm has netted few real terrorists and disrupted few real plots. What’s worse, it has backfired, as measures such as coercive interrogation, disappearances into secret CIA prisons, indefinite detention without trial at Guantanamo, and preventive war have sparked unprecedented levels of anti-Americanism worldwide, thereby increasing the likelihood that we will be attacked again.”

“While the ‘preventive paradigm’ can point to few gains in our security, it has come at great cost to our ideals. In the name of preemptive security, the administration has undertaken torture, indefinite detention without trial, extraordinary renditions, disappearances into CIA ‘black sites,’ warrantless wiretapping of American citizens, and an illegal and disastrous war in Iraq.”

“These measures constitute the core of the ‘preventive paradigm,’ and have compromised the most basic commitments of the rule of law. And by doing so they have actually impeded our efforts to bring known terrorists to trial, limited our long-term options for security, sparked anti-American resentment and terrorist recruitment, and undermined relations even with our closest allies.”

“one can be ‘preventive’ without using harsh measures such as preventive detention, coercive interrogation and preventive war. The rule of law permits a nation to do much to protect itself while staying true to principles of justice and equality. Measures such as safeguarding nuclear stockpiles around the world, outfitting first responders, protecting vulnerable infrastructure and screening cargo and passengers more carefully have the potential to offer substantial protection, without the sacrifices in principle that the Bush administration’s approach has entailed – and without the backlash that has followed.” (TruthOut, 2007)

In an address at a Terrorism & Justice Conference in 2008, Professor Cole stated:

“In the first two years after 9-11, the government locked up by its own count over 5,000 foreign nationals in preventive detention anti-terrorism measures. These are people locked up, not to hold them responsible for things they have done in the past, not based on objective evidence of past wrongdoing, but out of a concern that they might commit a terrorist act in the future. So they are locked up to prevent that possibility from occurring. The preventive paradigm also includes what President Bush calls “alternative interrogation tactics,” but what the rest of the world knows as torture. The argument that has been made to justify coercive interrogation or torture is inevitably based on the fear of an imminent terrorist attack.

“How many of those 5,000 today stand convicted of a terrorist offense? Zero. Or consider the 8,000 young men that the FBI sought to interview after 9-11, simply because they were recent immigrants from predominantly Arab or Muslim countries. .How many of those 8,000 stand convicted of a terrorist offense today? Zero. Despite massive infiltration, surveillance, ethnic and religious profiling, and harassment of the Arab and Muslim communities, the government has not yet found a single Al Qaeda cell in the United States. Meanwhile at Guantanamo, there have been 775 people locked up whom the government initially identified as the worst of the worst. We now know that more than 500 have been released suggesting perhaps they were not the worst of the worst. The military’s own tribunals have identified only eight percent of these people as fighters for either Al Qaeda or the Taliban.”

“If we are to be safe in the twenty-first century, we need to be smart about counterterrorism, not just act tough… We need to treat the rule of law as an asset, not an obstacle, if we are to avoid creating a problem even bigger than the one we faced on 9/11.”

He closed his remarks with a quote that reflects on the proper understanding of the relationship between national security and the rule of law.

“The quote comes from a person who has a great deal more experience with this issue than do Americans. This person is Justice Aharon Barak, who until recently was the President of Israel’s Supreme Court, which has presided over more issues involving the conflict between human rights and national security than any other court in the history of mankind. Justice Barak wrote in a decision on the use of coercive interrogation tactics, far less violent than water boarding, declaring them impermissible in interrogating Palestinian terror suspects. He wrote

“a democracy must sometimes fight terror with one hand tied behind its back. Even so a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.”
(David Cole. Less Safe, Less Free: A Progress Report on the War on Terror, Journal of the Institute of Justice & International Studies Feb, 2008)