In August 2006, the United Kingdom arrested two dozen suspects in what was described as a plot to blow up passenger airplanes flying from London’s Heathrow Airport to US and Canadian destinations. They were held without criminal charges for up to twenty-eight days, under a preventive detention law that had been expanded following the July 7, 2005, London subway and bus suicide bombings.1 Attorney General Alberto Gonzales promptly announced that he would send a Justice Department team to study the United Kingdom’s approach to antiterrorism. After all, the Brits had foiled the plot; we had not. Gonzales seemed especially interested in the power to lock up suspects without charges for up to twenty-eight days.
One month later, the Senate Subcommittee on Homeland Security held a hearing entitled “Catching Terrorists: The British System Versus the US System,” featuring Judge Richard Posner and Professor John Yoo, two of the country’s most prominent conservative legal scholars. Posner and Yoo, like Attorney General Gonzales, were particularly taken with Great Britain’s ability to detain suspects for twenty-eight days without charges—although Yoo pointed out that the Bush administration’s “enemy combatant” authority permitted indefinite detention without charges. Both Posner and Yoo stressed the limitations of the American law enforcement model in combating terrorism, and urged instead an aggressive preventive approach, including the use of military force. Subcommittee chairman Senator Judd Gregg welcomed these views, and eagerly joined in criticizing the FBI for its “reactive” law enforcement mindset.
The senators also invited the former British counterterrorism official Tom Parker to testify. While his tone was diplomatic, his message was in fact quite at odds with the conventional wisdom in the room. Parker insisted that the most important thing about the British approach was its determination to treat terrorism as crime— not as an extraordinary military threat. And he argued that the success of Scotland Yard turned in large measure not on intervening preemptively, but on patiently keeping individuals under surveillance as long as possible before arrest, in order to gather valuable intelligence about the operation and develop a strong case that would support criminal prosecution.
Parker noted that the British had initially tried a more military and preemptive approach in the 1970s in Northern Ireland—sending in troops, interning large numbers of suspects without trial, and employing coercive interrogation tactics to gather intelligence. But those methods failed. They only inspired support for the Irish Republican Army and united the Irish Catholic population against the British. The principal lesson we should learn, insisted the only British citizen in the room, was not the poverty of the law enforcement model in response to terrorism, but the absolute necessity of that model. Needless to say, this was not the message that advocates of the Bush administration’s “preventive paradigm” wanted to hear.
At the time of the Senate hearing, I was living in London, having arrived shortly after the Heathrow terror suspects had been arrested. I was spending a semester at University College London’s School of Public Policy, located about a…
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