Terrorism as a nuisance

(From Tech Central Station)

Harvard Law Professor William J. Stuntz declares that Kerry's comparison between terrorism and organized crime (particularly activities such as gambling and prostitution) is surprisingly apt. And it leads to lessons that may surprise Kerry.

To be sure, people in organized crime were prosecuted for prostitution and gambling, but this is not because that's the worst things they did. They were simply the most prosecutable things they did. Organized crime figures were often jailed after pretext prosecutions to get them off the streets.

Likewise, terrorists are often prosecuted for other crimes, because the terrorism is either hard to prove in advance, or would require compromising intelligence assets. Or both.

And criminal prosecutions are not a promising option. No one is willing to wait for a nuclear weapon to blow away an American city and then prosecute the conspirators who survived the blast. Nor does it make sense to devote massive resources to building cases for small-potatoes crimes that will put away would-be murderers for a year or two, after which they can resume their homicidal careers. Perhaps that is why military and intelligence services have played such a large role in the war on terrorism. Some crime problems are intractable. Seen as a crime problem, terrorism is intractable too. It makes sense to redefine the problem, to look for other tools. This war needs to be fought by the Army and the CIA, not merely the Justice Department. Therein lies the real problem with Kerry's comments. Kerry thinks America's seventy-year-long battle against the Mafia was a success story. He is wrong. Tolerating Mob bosses (which is what we did for most of those seventy years) was very costly. Tolerating terrorism -- or leaving it to police and prosecutors, which amounts to the same thing -- would be a disaster.