Kenneth Anderson (Washington College of Law, American University) has posted The Assumptions Behind the Assumptions in the War on Terror: Risk Assessment as an Example of Foundational Disagreement in Counterterrorism Policy (Wayne Law Review, Vol. 54, No. 1, pp. 505-535, 2008) on SSRN. Here is the abstract:
This article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, as an example of a foundational disagreement that cannot easily be elided. Examining an extreme, indeed crude, recent example of cost benefit analysis applied to the risks of terror and the costs of counterterrorism - John Mueller's widely noticed Overblown - the article suggests that cost benefit analysis, at least applied in this way, runs roughshod over other important values in counterterrorism policy, such as justice, but in addition, makes radical yet unstated assumptions about what cost benefit analysis seeks to compare in establishing counterterrorism policy or estimating the risks and costs of terrorism - unstated assumptions that, in fact, assume the conclusion. The article notes that cost benefit analysis tends to promote a policy-minimalizing "event specific catastrophism" - seeking above all to prevent simply the next, serial terrorist attack, with however no greater strategic vision. Indeed, the article says in conclusion (as Philip Bobbitt has noted) cost benefit analysis is "relentlessly tactical," not strategic; it also tends toward serial 'event specific catastrophism' as its analytic frame; and it is a method of evaluating proposed courses of action, not generating them, and hence promotes a strategically questionable tendency to reaction as a response to terrorism. This article presents these ideas in brief fashion, however, as the first draft in a larger project on cost benefit analysis and counterterrorism, and it does so by reference to a book that is unabashedly crude in its approach to both cost benefit analysis and terrorism/counterterrorism. The critical project will extend beyond this particular article, which is in effective a a first pass at developing a critique. It is also an article that does not extend beyond events of early 2007 (when the original address was given) and should be read in that light.