Lawfare David Kris on Criminal Prosecution as a Counterterrorism .

origins and development of the Justice Departments National Security Division (NSD), which I led from March 2009 until March 2011.6 Knowing a little about NSD is significant because NSD is a key section of how the area came to a consensus, at least until recently, about the appropriate role of law enforcement as a counterterrorism tool.

Part II sketches a conceptual model for thought around the use of law enforcement in the current conflict, and more broadly as a counterterrorism tool. The estimate here is to identify the right questions, and the proper way of approach the policy debate in which we are now occupied as a country. Identifying the proper questions is hard but important.

Part III answers the questions posed in Part II. It briefly describes some of the empirical evidence about how law enforcement has been exploited to fight terrorism, and, in particular, how it has been exploited to disrupt plots, incapacitate terrorists, and gather intelligence. This serves as the basic, affirmative case for retaining law enforcement as one of our counterterrorism tools. Part III also explores some of thearguments against using law enforcement for counterterrorism, and explains why (in my view) those arguments are wrong. Part III closes with a discussion of pragmatism and perception, and the use of values in counterterrorism.

Part IV offers a comparison between civilian law enforcement, detention under the law of war,7 and prosecution in a militarycommission. We want such a comparison to work wise decisions about public policy as good as decisions about the tendency of private cases. The main end of Part IV is to excuse the major pros and cons of each system.8

Finally, Part V discusses how law enforcement can be made more pliable and more efficient as a counterterrorism tool. In particular, it addresses how the public-safety exception to Miranda should give in the setting of terrorism investigations.9

This article argues that we should stay to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each instance the particular tool that is most efficient under the circumstances, consistent with our laws and values. The word proceeds in five main parts.

Part I reviews the late account of our national counterterrorism strategy, focusing in detail on the