Boston Bombing: Preventing the Next Attack Would Require "Intolerable" Government Powers

Earlier this week freshman Congressman Tom Cotton (R-Ariz.) took to the house floor expressing his doubts about the efficacy of the Obama Administration's counterterrorism policies, which he believes are the reason for "five jihadists reaching their targets in the United States … the Boston Marathon bomber, the underwear bomber, the Times Square Bomber, the Fort Hood shooter, and in my own state — the Little Rock recruiting office shooter." The congressman then points out that in the seven years after 9/11 under Bush, no such domestic attacks occurred. With Obama broadly following the Bush counterterrorism policies this difference cannot be explained by policy choice. It is also not due to incompetence in the Obama Administration, as Cotton suggests, but rather an evolving threat which cannot be properly dealt with under the current national security legal architecture. 

The matter of how much counterterrorism policies have evolved since 9/11 is a topic of discussion among legal experts including former assistant attorney general and current Harvard Laws Professor Jack Goldsmith. On the increasingly popular Lawfare Blog, Goldsmith explains that current counterterrorism policies are in fact "the further entrenchment, and legitimation, of the basic counterterrorism policies that Obama continued, with tweaks, from the late Bush administration," with the exception of the use of drones and the treatment of threats not covered by the September 2001 Authorization for Use of Military Force Against Terrorists (AUMF). 

The latter of these "tweaks" is the most important when it comes to dealing with the increasingly frequent threats of homegrown terrorism. As Robert Chesney has documented, the post-9/11 legal architecture for counterterrorism, which was so effective in the first decade after 9/11, is collapsing due to two changes in the national security landscape: the ending of the overt phase of the war in Afghanistan, and more importantly, the diffusion, fragmentation, and increasing franchising of the Al-Qaeda organization. These changes "make it far more difficult (though not impossible) to establish the relevance of the law of armed conflict to U.S. counterterrorism activities, and they raise exceedingly difficult questions regarding just whom these activities lawfully may be directed against."

As Wired.com reported, "finding homegrown bombers in advance would require an invasion of American’s privacy by the government that citizens would likely find intolerable." Director of National Intelligence James Clapper emphasized this difficulty in the new phase of the War on Terror, saying that even in this tragedy "The rules were abided by," and "The dots were connected."

In an example of the frustration expressed by some lawmakers, Sen. Lindsay Graham (R-S.C.) told CNN "The ball was dropped. We’re at war with radical Islamists and we need to up our game." While it might be the case that mistakes were made by the homeland security apparatus in the days and months leading up to the Boston bombing, effectively preventing such attacks in the future would almost certainly require a new round of national security legislation likely to further impede on Americans' civil liberties.