Less Safe, Less Free: Why America Is Losing the War on Terror

A cogent critique of the new "preventive paradigm" in counterterrorism policy by two of the nation's leading legal scholars.

"If we wait for threats to fully materialize, we will have waited too long."—President George W. Bush, defending the National Security Strategy doctrine "preemptive war," Commencement Speech at West Point, June 1, 2002

In Steven Spielberg's science fiction thriller Minority Report, the Justice Department uses psychic visionaries to predict and prevent future crimes. President Bush has no psychic visionaries, but in fighting the war on terrorism his administration has nonetheless adopted a sweeping new "preemptive" strategy, which turns on the ability to predict the future.

At home and abroad, the administration has cut corners on fundamental commitments of the rule of law in the name of preventing future attacks—from "waterboarding" detainees, to disappearing suspects into secret CIA prisons, to attacking Iraq against the wishes of the UN Security Council and most of the world when it posed no imminent threat of attacking us.

In this brilliantly conceived critique, two of the country's preeminent constitutional scholars argue that the great irony is that these sacrifices in the rule of law, adopted in the name of prevention, have in fact made us more susceptible to future terrorist attacks. They conclusively debunk the administration's claim that it is winning the war on terror and offer an alternative strategy in which the rule of law is an asset, not an obstacle, in the struggle to keep us both safe and free.

David Cole is a professor of law at Georgetown University, the legal affairs correspondent for The Nation, and the author, most recently, of the American Book Award-winning Enemy Aliens. He lives in Washington, D.C. Jules Lobel is a professor of law at the University of Pittsburgh and a constitutional lawyer and expert on emergency powers and the laws governing war. He lives in Pittsburgh, Pennsylvania.