Federalist Society LiveBlog: The War-On-Terror Government

November 11th, 2011

International: The War-on-Terror Government
3:15 p.m. – 5:00 p.m.
Grand Ballroom – Overflow: Chinese Room

  • Hon. Stewart A. Baker, Partner, Steptoe & Johnson LLP and former Assistant U.S. Secretary for Policy
    U.S. Department of Homeland Security
  • Dr. Veronique de Rugy, Senior Research Fellow, Mercatus Center, George Mason University
  • Mr. Julian Sáchez, The Cato Institute
  • Mr. Benjamin Wittes, Senior Fellow and Research Director in Public Law, The Brookings Institution
  • Moderator: Prof. Nathan A. Sales, George Mason University School of Law

Julian Sanchez

There are ways to increase security without decreasing privacy–such as installing reinforced cockpit doors on airplanes.

Veronique de Rugy

Risk of terrorism very small compared to attention it receives, and funding it receives. 155,000 died of lung cancer in 2001, same year as 9/11. The way Homeland Security spending is done is unlikely to bring a lot of security, or at least the desired security for the money spent. Politics of homeland security v. economics of homeland security. Knee-jerk reactions to news of the day. Also, there is overstatement about types of risk that we face. The way we respond to homeland security is illustrative of the way things work in Washington–spending. Washington measures success not by seeing how successful policies are, but based on how much money is spent.
Lack of risk-benefit/cost management analysis is problem.
Economists think about tradeoffs, return on investments, etc. Tradeoffs drive our decisions. Resources are scarce, and we need to allocate in best possible way. THe most effective use of homeland security resources is for detecting terrorists and minimizing damages if an attack was to occur and be successful. Spending to protect particular target is inefficient bc there are unlimited amounts of targets. Homeland security is only as strong as weakest link.

Ben WIttes

More likely to drown in bathtub than to die in terrorist attack. Statistically safer to fly on airplane than not to fly on airplane. This is a seductive argument, and plausibly advanced to suggest we are not investing right in counter-terrorism. One analytic flaw. When you stop smoking cigarettes don’t get together to figure out how to kill you. When we reduce car accidents, the cars dont all figure out how to make their breaks fail more effectively. When countries do not successfully address terrorism effectively–Pakistan–that is, by recognizing that terrorists are dangerous to society, it is not enough to say terrorism isn’t that bad compared to other harms.
The War-on-Terror government is less a question of policy and more a philosophical government that has to do with whether the government can wage war against you, individually. The broad pattern of the last few years–in the habeas litigation in federal court, and the drone program–there has been a marked trend toward individualization of war-fare. Government no longer invading Iraq and exercising large-scale military actions; they are backing off that. Rather, engaging in highly targeted military actions, sometimes by military, sometimes by covert actions, targeting individuals.
The authorizing power for detention is the same document that authorizes the war in the first place–AUMF. When courts consider whether one person can be detained under AUMF, they asked whether AUMF fits to one person. Do we want the government to have the power to wage wars against individuals? We are past that point. How do we want the government to do that? As technology increases ability to attack society, and increases ability of society to attack someone without touching someone else, this question becomes important.


How do you monetize privacy and civil liberty costs? How do you balance those against expected benefits of attack?

de Rugy: (dodging question) Spying on all Americans is the wrong way to go about it. This is why we need to think of things like tradeoffs. Is it possible to put in place policy measures that stop *all* of the bad guys? Hence, it is more important to focus on who are most likely and most willing to do it. More likely to happen abroad than in US.