Of Note: To Deny and Deceive: The Limits of Counterdeception—an Addendum

Three days after September 11, 2001, the United States Congress issued an urgently anticipated strategic response to the devastation of the al Qaeda terrorist attacks, authorizing the Bush Administration to use "all necessary and appropriate force" in what would soon become America's War on Terror.

In the years since the passage of this resolution, however, the administration's interpretation of its mandate has sparked a number of legal and political debates about the breadth of executive privilege, the scope and limits of civil liberties, and the extent to which the United States should bind itself to international treaties banning coercive practices deemed torturous.

Each of these issues offers an important and still-timely context in which to think about many of the topics that appear in this issue of the SAIS Review. In the preceding article, for example, James J. Wirtz outlines the challenges to spying that are posed by non-state actors (like terrorist groups) that "hide in plain sight" of U.S. intelligence gatherers. The most obvious example of a group's recent success with this tactic is, of course, al Qaeda, whose members were able to enter the United States, learn to fly aircrafts, and eventually highjack three commercial planes. True, the actions of some of the hijackers did raise red flags within certain intelligence circles, but the threat was not deemed imminent enough (and the bureaucratic structure of the intelligence community not coordinated enough) to investigate the issue further.

Wirtz's central point is that small non-state actors are able to undermine powerful states by turning the strengths of these states into weaknesses—strengths like a commitment to an open society, to the protection of civil liberties, and to the existence of accessible information technology within state borders. For Wirtz and others, like Barton Whaley, one solution to this problem is the practice of counterdeception, which uses information technology to identify abnormal behavioral patterns within populations. The goal is to distinguish so-called "legitimate actors" from other nefarious individuals or groups—"those just masquerading as average people."

To be sure, the United States would do well to embrace the solutions that Wirtz puts forward. Spying, or covert intelligence gathering, is no doubt a much-needed cornerstone of recent U.S. efforts at counter-terrorism. And yet, from warrant-less wiretapping to the long-term detainment of U.S. citizens and foreign nationals, the Bush Administration has found itself under growing pressure to publicly define the legal parameters of the tactics it uses to gather intelligence. Among the more pressing questions still being debated by legal scholars and members of the intelligence community: To what extent do counter-terrorism efforts require the use of racial or religious profiling to be effective? At what point do such efforts violate constitutional protections of civil liberties? What interrogation techniques constitute torture? Can such techniques ever yield reliable information? Finally, what about constitutional protections available to suspected terrorists who are not U.S. nationals but reside within U.S. borders?

Such questions are worth iterating in this issue of the SAIS Review because they shape much of the legal context in which today's spies work. Casting wide surveillance nets into civilian populations requires a great deal of confidence in the government's ability to protect people against unnecessary and inappropriate spying—arguably, greater confidence than the current administration has inspired. Ultimately, protecting the nation against the Orwellian implications that Wirtz himself warns against requires not just counterdeception. It also requires robust debates and policy that reflect the limits of counterdeception. In the end, the safety of the nation and the preservation of its freedom demand no less.