By David B. Rivkin, Jr. and Lee A. Casey [Posted from The Wall Street Journal May 26, 2010]

Sixty-eight senators have sent a letter to President Obama urging U.S. ratification of the Ottawa Convention. The 10-year-old treaty, banning the production and use of land mines, has been accepted by over 150 countries, including most of our allies.

The U.S., however, should not join this august club. Land mines remain a critical part of America's 21st century security architecture.

The demilitarized zone (DMZ) between North and South Korea contains massive minefields. They guard against surprise attacks by numerically superior North Korean infantry who are poised 20 miles from the outskirts of Seoul.

Deterring nuclear-armed and consistently erratic North Korea (its most recent provocation was sinking a South Korean warship) is a challenge requiring all the tools in the U.S. military arsenal. Ratifying the Ottawa Convention means dismantling the DMZ minefields. That means an American president might face the unpalatable choice of watching South Korea (and the U.S. forces stationed there) overrun—or using nuclear weapons.

Although the U.S. has chosen not to deploy land mines in post 9/11 wars, they can save the lives of American soldiers. Our bases in Iraq and Afghanistan have regularly come under insurgent attacks, including on the morning of Oct. 3, 2009, when hundreds of Taliban penetrated the defense perimeter of Combat Outpost Keating, an isolated U.S. camp in northeastern Afghanistan. Outnumbered six to one, the G.I.s fought a desperate action with small arms. U.S. aircraft arrived, but only after eight Americans (of 53) were killed. Had the camp been surrounded with a minefield, the results would have been very different.

Outside Korea, land mines on a grand scale may no longer be an essential part of the U.S. arsenal. But ratifying the Ottawa Convention transforms a policy choice into a legal obligation that, notably, neither Russia nor China (or Iran, North Korea and several other rogue states) have accepted. Unilateral disarmament here is neither smart arms control nor good foreign policy.

Land mines do present important humanitarian concerns. Once deployed, they can remain active for decades, and civilians are regularly injured or killed by these weapons long after a conflict has ended. This is a particularly acute problem in the developing world, where many belligerents never bothered to mark or clear the affected areas.

But the newest generation of American "smart" mines can be remotely armed and disarmed, or programmed to blow themselves up after a given time. These weapons are no more or less inhumane than other types of military hardware.

While some smart mines can be expected to malfunction and remain armed, the same is true of all unexploded ordinance, including aircraft-delivered bombs and artillery rounds. Properly used, land mines are not only an effective weapons system, but their limited range can produce far less unintended damage to civilians than, for example, a heavy artillery barrage or aerial bombing.

The treaty, however, would ban all land mines, stupid or smart. In truth, most of its proponents are more interested in reworking the entire legal regime governing warfare than they are in making any particular type of weapon more humane.

Traditionally, the laws of war accommodated military imperatives, imposing only the most basic of restraints. This was in recognition that a more restrictive code would not likely check nations engaged in a life or death struggle. As the realities of war have receded for most developed countries, progressives have worked to transform the norms applicable to armed conflict into something akin to a code governing domestic police functions.

The Ottawa Convention is part and parcel of this process, and the only real justification for U.S. accession to this treaty is a bow to international political correctness. That is what the Senate letter meant by urging the president to reconsider the U.S. position as consistent with his "commitment to reaffirm U.S. leadership in solving global problems."

That type of symbolism is just not a good enough reason to give up a weapon that can protect American forces and assist them in accomplishing their missions.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

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The following was transcribed from the January 5, 2010 Hardball with Chris Matthews program.

Chris Matthews: In an effort to increase security, obviously, the Transportation Security Administration (that's the TSA; the people that check us at the airport) has increased screening measures for airline passengers coming from 14 countries around the world there. They’re all highlighted there [Algeria, Nigeria, Libya, Cuba, Sudan, Somalia, Yemen, Saudi Arabia, Syria, Iraq, Iran, Lebanon, Afghanistan, Pakistan]. I have Alejandro Beutel there with the Muslim Public Affairs Council. He says this is the wrong way to go about safety. David Rivkin, a former Reagan and Justice Department official who’s been with us, disagrees. Let me start with you, David: Why is it smart to go to these 14 countries— Afghanistan, Algeria—includes Cuba, by the way—Iran, some on the state terrorism list. All these countries, mostly Islamic countries except for Cuba, I guess—and what they’re doing in these cases are extra pat-downs, basically extra check of your carry-on luggage, it’s sort of what they do –I travel all the time, gentlemen—it’s what they do when you get on that SSS list, when they pull you aside and they say ‘Okay, we’re going check out everything, we’re going to wand you, we’re going to check your luggage by hand.’ They do that to you if you break one of the rules or the buzzer goes off too many times. Is that the right or wrong way to go?

David Rivkin: It’s a reasonable way to go. Let’s agree that profiling, leave aside political correctness, is a way of marshalling scarce resources to manage a large threat. The real question: Is this the right way to profile? Let’s agree that coming from these countries is a reasonable proxy for the enhanced probability they might be a terrorist. I frankly think we need to look at other factors: we need to look at age, we need to look at gender—

CM: What does that tell you?

DR: Well, young males are disproportionate—again, we shouldn’t be blinded by this—there are some women terrorist bombers, but by and large they are males—

CM: Okay then, let me ask you this question: The people that attacked us on 9/11—Hard, horrific evidence—they were checked, they were called back out of line again because they set off the metal detectors. They’re carrying box cutters! They were still allowed to get on the planes. They still killed the 3,000 people. So, what good does it do to pull a person out of line and do one of these pat-downs if all it’s going to do is slow somebody down for ten minutes?

DR: Nothing if it’s ineffective by itself, but if you combine it with other measures—you have to work the process from beginning to end. Selecting people, checking people, and making sure they don’t get through if they are carrying some suspicious objects. You need to do all of them; it’s not either/or.

CM: What do we do? These are countries, not ethnic groups, being identified. These are countries, and by the way just to remind everybody: 9/11? 15 Saudis, one Egyptian, one Lebanese and two from the Emirates countries, the UAE. So they come from certain countries so far. They could be coming from Denmark tomorrow. We don’t know, but their countries of origin correspond to the countries on this list. Your thoughts?

Alejandro Beutel: Exactly. Well, my colleague mentioned before that we need to have a layered defense, and that’s correct. But the sort of ethnic and religious profiling that’s taking place—

CM: Where is that taking place?

AB: Right now with the latest TSA standards, by selecting these 14 countries, that’s just basically telegraphing our strategy. If we decide to profile from these countries, then terrorists are just going to recruit elsewhere. Profiling’s not going to help against Richard Reid, it’s not going to help against Jose Padilla, it’s not going help against any of the UK bombers that took place in the 2006 plot—

CM: Why not?

AB: Because these are people who don’t fit profiles. A 2005 study by the Library of Congress found that there is no such thing as a reliable terrorist profile, especially based on ethnic background.

CM: But this is by country—country of origin.

AB: Yes. I understand that, but again though, even based on country of origin terrorists can—

CM: Okay, so if you can only check certain people, because you can’t check everybody, who should you check? Have you ever been to LA airport, LAX, in the morning, 6:00 when there’s a billion people there?

AB: Yes, Absolutely. Yes.

CM: Or around here at Reagan where there’s a billion people there on a Saturday morning, you can’t check everybody through exhaustive checks or people will never get on a plane, so how do you single out the people you check? That’s a question I want answered.

AB: Well, let’s go back to what President Obama was saying earlier in his statement about the review: What we need to do is make sure that our intelligence actually connects the dot.

CM: But in terms of checking people when they get on airplanes, which people should be checked most thoroughly?

AB: Well actually what you need to do in terms of a smart defense is make sure that, in the layers themselves, you need to check people beforehand by having the proper intelligence—

CB: But how do you check when they get on airplanes? I’m asking a simple question. Give me an answer.

AB: I’m getting to it, because it’s a nuanced issue. So you have Stage One beforehand and then once you get to the airport itself, what you do is you look at certain behaviors that they are doing—behavioral profiling—if they’re doing something that’s strange, if you’re asking basic questions about ‘Where are you going to be going?’

CM: Wait a minute. Who asks these questions? I go to an airport and they don’t ask any questions.

AB: Behavioral profiling, for instance at Logan Airport in Boston, they’re doing something right now where they have a pilot program where it’s a part of airport security itself. One of the last rings of defense is that they look for things that are possible suspicious behaviors. It doesn’t look at ethnicity or race or religion, but looks at the actual behaviors themselves—things that might be dead giveaways to someone who might have something suspicious.

CM: Like what?

AB: For instance, if someone’s going to be doing something where they’re going to be a little bit fidgety, or they’re not answering questions straight—

CM: But there are no questions put to you.

AB: In some cases, though, there will be questions put to individuals at the last minute.

CM: I’m all for that, but how do you decide who to ask the questions of?

AB: It’s not just about questions either, though. It’s also making sure to read the body language, again there are multiple things—

CM: Ok, give me a procedure to defend America, quickly. What would be your procedure to defend this country? His [Rivkin’s] procedures at least start with this country of origin.

DR: I’m not against the nuanced profiling.

CM: What would be your approach?

AB: My approach would be a layered defense starting with smart intelligence making sure that we share the information, then from there making sure that once we get closer to the airport we have behavioral assessments that don’t rely on certain profiles that are not going to be effective.

CM: Like country of origin?

AB: Like country of origin, ethnicity—

CM: Okay, I just don’t know how you would go about it. You said they ask questions, they don’t ask any questions right now.

DR: No. We need this kind of profiling. I’m not against nuanced behavioral profiling. We don’t have resources for it. But let me point out, the ultimate criticism is profiling is ineffective. Let me tell you, if we push Al-Qaeda to stop recruiting the people they’ve been recruiting and start looking for Scandinavians—

CM: Yea, they will.

DR: They will, but they would trickle down. This is what you do in warfare. You push your enemy to operate in less than optimal ways. I would bet you they’re not going to be able to recruit enough Scandinavians, and profiling is just the starting point. You are supposed to look at other things. It’s not a panacea, but to deny that it’s useful as a foundational stone is just silly.

AB: No. It only displaces the problem and all it takes is one or two people to do these things. That’s all it takes.

DR: No it doesn’t displace. Why does it displace?

CM: Let me ask you a general question. Let’s get away from race and all this and get to the simple question. Let’s get to nationality. If you’re looking for provisional IRA people back ten years ago, wouldn’t you start with the Irish?

DR: Of course.

CM: I mean, is that unreasonable? Is that prejudicial? Let me ask you that. Is that prejudicial, to look for the IRA among the Irish? Is that prejudicial to you?

AB: No, because—

CM: Because they recruit the IRA among the Irish.

AB: But the thing is that it’s very specific. There’s a difference between the IRA, which was an ethnic-based group, very specific—

CM: Don’t you recruit Islamic terrorists among Islamic people?

AB: How can you tell who’s a Muslim?

CM: But this list is starting by nation-states. Like you would start with Ireland, if a guy’s got a passport from Northern Ireland, you might say—

AB: But Chris, how can you tell who is a Muslim?

CM: You can’t tell!

AB: Exactly, and that’s part of the thing. You cannot—

CM: But you can begin to. Let’s get back to my question. A thousand people get on the plane. You can only check ten. Which ten do you check? That’s what we’re saying.

DR: Not the old little grandma, that’s for sure.

CM: Do you check Joan Rivers?

AB: No, but you can’t necessarily tell who’s a Muslim.

CM: Ok, this is the problem, and here’s where I get a little heated because I think everybody likes to push aside the issue. You have limited resources. I don’t think we’ve paid the TSA people enough. I think we’ve seen some New York cops—retired cops with street instinct—standing around those airports, who have a sense of these questions. By the way, you can’t interrogate passengers. You can’t ask them all these questions right now.

DR: Let me explain one thing. My colleague doesn’t want profiling, let’s be candid, because he’s afraid it would lead to broader stigmatization of a community. This is not what this country is about.

CM: Yea. I would hate it if automatically I was a trivialized person every time I went to an airport. I wouldn’t like it, either.

DR: What we are talking about is allocation of scarce resources, not stigmatizing people.

CM: I’ll tell you one thing: Everyone from those countries knows why this is going on, and it’s not because of prejudiced people. It’s because common sense tells you. By the way, if Americans kept attacking Arab countries, we’d be checked.

DR: Of course. Profiling is common sense.

CM: I hate to say it, but this conversation’s going to get more heated as time goes on. If we get hit again, this won’t be a calm conversation. Thank you both for coming. Please come again.

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