Terrorism and the Mob
Harvard Law Professor William Stuntz thinks John Kerry was right before he was wrong:
By now, everyone in America knows that John Kerry has compared fighting terrorism to prosecuting organized crime figures for gambling and prostitution. The comparison has attracted a lot of criticism. Actually, it’s a pretty good analogy — but it leads to a different lesson than Kerry believes.
Prosecutors would like to nail would-be mass murderers for planning to blow up buildings or spread nerve gas or otherwise slaughter innocent men and women. But that is even harder than prosecuting Mafia bosses for racketeering. Proving that Mohamed Atta is guilty of mass murder is easy — but he’s already dead. Proving it ahead of time, before September 11, proving it beyond a reasonable doubt, proving it without disclosing sources the government will need in other investigations — those things are nearly impossible. That is why, when the Justice Department prosecutes would-be terrorists, it usually prosecutes them for something other than terrorism: immigration fraud, lying to government agents, money laundering, and the like. At least in this respect, Al Qaida is like the Mob. Pretext prosecutions are a practical necessity. But hardly a solution. Pretext prosecutions are bad public relations — they make the defendants seem sympathetic, like people who are being hounded by the government for penny-ante crimes. They are often expensive — proving crime bosses guilty of gambling or prostitution was easier than proving racketeering, but it wasn’t a walk in the park. So too, proving money-laundering might be easier than proving attempted mass murder, but it is far from a slam dunk. Finally, pretext crimes rarely generate long sentences. If you want to put someone away for the rest of his life, a prostitution or mail fraud charge is a poor way to do it.
All of which explains why the criminal justice system was never able to kill off the Mafia. Competition from drug gangs, state-sponsored lotteries, the decline of industrial unions, creative use of other regulatory tools by officials like then-Mayor Rudy Giuliani — these and other trends killed off old-style organized crime. The criminal justice system didn’t, because it couldn’t. Proving the relevant crimes was too expensive.
If we wait long enough, Islamic terrorism will meet the same fate as the Mafia. Long-term political and social forces in the Muslim world will push toward secular democracy, not religious dictatorship. Eventually, terrorism will be “a nuisance,” just as Kerry said. But that will take awhile, just as it took awhile for market forces to wear down the Mafia. We can’t just wait; we have to do something to speed that happy day along. 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.
While Stuntz overstates his case–Kerry doesn’t advocate foregoing the military and intelligence options entirely–he’s right that Kerry’s mindset is the wrong one for fighting terrorism. While President Bush has not been nearly as aggressive in the use of force as I would prefer, he is at least taking a proactive approach. Kerry gives no indication that he believes that terrorism is a particularly big problem. One senses from his campaign that, if the polls didn’t tell him that national security was the biggest issue, he would be campaigning as if it were 2000. He would clearly have preferred to have waged the campaign on job creation and expanding Social Security benefits than on how best to defeat terrorism.
Kerry believes that it would all be over if we would just go out and arrest Osama bin Laden. Organized crime didn’t go away when we arrested Al Capone or even John Gotti. And, as Stuntz points out, al Qaeda is a whole lot more dangerous than La Costa Nostra.