The NYC/​Denver terrorism investigation has Andy McCarthy all riled up.


In this article at National Review, McCarthy says that the risks associated with terrorism require a domestic preventive detention regime where investigators can go to a court with something less than probable cause and detain individuals without charge until they can gather the evidence for an indictment.


This is a pretty bold proposition, given the fact that he lays out in this post on The Corner the power that investigators already have to detain material witnesses while gathering evidence. Not to mention the power to detain allegedly dangerous individuals picked up on relatively minor charges such as lying to federal agents, the current disposition of the NYC/​Denver suspects.


Then McCarthy comes full circle in this post, claiming that if this is the fault of a “law enforcement” mindset in counterterrorism, it may be time to consider a domestic intelligence agency akin to Britain’s MI-5. He also blasts the use of non‐​coercive interrogation “that the Left insists are just as reliable in a ticking‐​bomb situation as the CIA’s coercive methods.”


There are several problems with this take on domestic counterterrorism.


The first is that the decision to involve a New York imam in the investigation, a step that compromised the operation and forced investigators to make early arrests before all of the co‐​conspirators could be identified, was made by an intelligence organization, the NYPD’s Intelligence Division. This is not the cops of the Counterterrorism Bureau, the law enforcement officers that work with the FBI in the Joint Terrorism Task Force, but a separate intelligence department run by a former CIA official who is openly hostile to the Bureau. The same type of folks that McCarthy wants to put in charge of domestic counterterrorism.


Second, McCarthy’s plug for coercive interrogation is the path advocated in the early years of the Bush administration. This has the deleterious effect (beyond statutory bans on torture and constitutional rights prohibiting the same) of making anything you get from the “third degree” inadmissible in court. To get around this you would have to ask courts to generate a doctrine that allows for evidence collected as a result of coercive interrogation to be admitted in spite of clear constitutional violations. I don’t see any way that this does not seep into general law enforcement, where any potential future crime justifies beating information or confessions out of suspects. This is rolling back civil liberties a hundred years or so.


Third, a domestic prevention regime is destined to run into the problems that the British encountered in Northern Ireland. IRA detainees that were subjected to “special interrogation techniques” and held without charge staged a hunger strike to protest being treated as criminals instead of detainees; their jailers had taken away their civilian clothes and made them wear prison uniforms. As former FBI Agent and counterterrorism expert Mike German says in his book, Thinking Like a Terrorist:

The reasons for the hunger strike reveal much about the IRA and about terrorists in general. They didn’t strike over the anti‐​Catholic discrimination that led to the civil rights movement. They didn’t strike over the RUC’s police abuse or the stationing of British troops in Northern Ireland. They didn’t strike over being arrested without charges, interned, and tortured. They didn’t strike over indefinite detentions or even over Bloody Sunday. They knew all those things helped their cause. They went on hunger strike because the British government was going to make them look like criminals.

If you fear Islamic terrorists, let investigators do their job and find the people who would harm the public. This is a problem that will be solved over decades of diligent investigation, sitting on wiretaps, infiltrating cells, and prosecuting dangerous people. Distorting the domestic criminal justice system out of hysteria over potential attacks will make martyrs out of detainees and torture victims and encourage a broader spectrum of people to violence.