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August 11, 2004

Press Contact: Kirston Fortune, UT Law Communications, (512) 471.7330 or Jodi Bart, UT Law Communications, 512-471-7330

Being Clear About Present Dangers



by Philip Bobbitt
Published August 11, 2004, in the New York Times Editorials/Op-Ed section.
Reprinted with the author's permission

London — Within the last week, both the United States and the British governments have come in for criticism about how they alert their publics of impending terrorist attacks. In London, the minister for home affairs, David Blunkett, was accused of keeping the public in the dark over the extent of the terrorist threat to Britain; Tory opponents challenged him to release as much detail as the Bush administration had in the United States. In America, the secretary for homeland security, Tom Ridge, was accused of playing election-year politics by ratcheting up the alert level while praising "the president's leadership in the war against terror." The problem reached such a crisis that it now appears that a substantial intelligence asset was compromised in one official's desperation to convince the news media that yes, there really was information about an imminent attack even though some of it was years old.

There was a time when societies at war were willing to trust their leaders to decide when, from a strategic point of view, information could be safely released. In a way, this trust was responsible for the famous Coventry legend, the false story that Winston Churchill, despite knowing through decoded intercepts that the city of Coventry was about to be bombed, did not warn the residents so that he could preserve the secret that the British were reading encrypted German radio signals.

Different attitudes prevail today, even in Britain, and one must have some sympathy with the governments of both countries. On the one hand, no official wants to neglect giving a warning to the public that might save lives; on the other, such action awards the terrorists a costless if minor victory by terrorizing the population and using government channels to do it. If officials then try to minimize the impact of the warning with suggestions that the public go about its business as usual, they dilute the effectiveness of the announcement and encourage a complacency that they were trying to pierce in the first place.

There is always going to be some threatening chatter among our enemies. There are more than 4,000 Web sites maintained by terrorist groups, and specific targets, like the Centers for Disease Control and Prevention or financial institutions in the United States and Britain, are openly discussed. Since Osama bin Laden's expressed goal is to weaken the West financially, every family that avoids a ballpark or decides not to take a vacation is advancing the aims of terrorists. It may be that people like Tom Ridge and John Ashcroft can take their children to the Statue of Liberty while maintaining the recommended "heightened awareness," but it sounds like a trip to hell to me.

While there are no perfect solutions to this conundrum, we could vastly improve our rules for warning if we stepped back and looked more closely at the strategy of alert systems.

First, let's distinguish between informing, alerting and warning. Informing, in this context, means simply putting into the public domain as much of what we know as we can without compromising intelligence sources and countermeasures. Alerting means contacting public officials and managers of the infrastructure in the private sector when we have a good reason for them to be on the alert. Warning means cautioning the public at large when we have something specific to warn them about and when we can couple that warning with advice on substantially reducing risks.

Now how does that play out in practice?

If the government believes it knows something is coming, but not where or when, it should inform the public about the nature of the threat - general information about Al Qaeda's activities and its expressed intentions. For example, Osama bin Laden has openly discussed his desire to acquire nuclear weapons and has, on at least one occasion, attempted to purchase nuclear materials. If the government thinks something is about to happen and believes it knows either where or when, but not both, it should alert not the public generally, but federal, state and local officials and private operators of the critical national infrastructure (banks, hospitals, energy links and power grids, etc.) that it, for example, believes Al Qaeda has targeted the Statue of Liberty but the attack could come five years from now. If the government believes it knows an attack is coming, and where and when it will occur, it should warn the public directly through the sort of press conference they have been using to announce general changes in the color-coded system.

The rationale for these distinctions arises from the strategic costs imposed on the United States and Britain by terrorists. If we confuse the terms inform, alert and warn, we inadvertently shift the calculus of costs to the terrorists' advantage. For example, if we alert when we should be informing, we unnecessarily increase costs and make the long-term (or the widespread) precautions that are imposed impossible to sustain. If we warn when we should be alerting, we invite the Chicken Little (or perhaps the Boy Who Cried Wolf) costs of making real warning more expensive to achieve. If we merely inform when we should be warning, we lose the trust of our people and make them prey to conspiracy theorists of all kinds, including the calculatedly malevolent.

The terrorists want the maximum effect with the minimum of risk. By confining our costs, we force them to escalate theirs - we force them, that is, to be more specific - and sooner or later we learn how to cross-hatch their threats to track down their operatives.

The general approach of empowering millions of persons by putting them on the lookout is a good one. It was, after all, an alert Border Patrol guard, not anyone in Washington, who foiled the so-called millennium plot to bomb the Los Angeles airport. But the color-coded system is too broad, too indiscriminate; there is a reason it is so easy to ridicule. The underlying problem is not so easy, but it is amenable to more careful thinking.



Philip Bobbitt, a law professor at the University of Texas at Austin, is the author of the forthcoming "The War on Terror.''