-Caveat Lector-
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From: [EMAIL PROTECTED]
Date: September 14, 2007 12:00:18 AM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: 6 Years into the "War on Terror," What's the Score? Osama
HUNDREDS, Bush *ZERO*
Why We're Losing the War on Terror
by DAVID COLE & JULES LOBEL
http://www.thenation.com/doc/20070924/cole_lobel
George W. Bush is fond of reminding us that no terrorist attacks
have occurred on domestic soil since 9/11. But has the
Administration's "war on terror" actually made us safer? According
to the July 2007 National Intelligence Estimate, Al Qaeda has fully
reconstituted itself in Pakistan's northern border region.
Terrorist attacks worldwide have grown dramatically in frequency
and lethality since 2001. New terrorist groups, from Al Qaeda in
Mesopotamia to the small groups of young men who bombed subways and
buses in London and Madrid, have multiplied since 9/11.
Meanwhile, despite the Bush Administration's boasts, the total
number of people it has convicted of engaging in a terrorist act
since 9/11 is 1 (Richard Reid, the shoe bomber).
Nonetheless, leading Democratic presidential candidate Hillary
Clinton claims that we are safer. Republican candidate Rudy
Giuliani warns that "the next election is about whether we go back
on defense against terrorism...or are we going to go on offense."
And Democrats largely respond by insisting that they, too, would
"go on offense." Few have asked whether "going on offense" actually
works as a counterterrorism strategy. It doesn't. The Bush strategy
has been a colossal failure, not only in terms of constitutional
principle but in terms of national security. It turns out that in
fighting terrorism, the best defense is not a good offense but a
smarter defense.
"Going on offense," or the "paradigm of prevention," as then-
Attorney General John Ashcroft dubbed it, has touched all of us.
Some, like Canadian Maher Arar, have been rendered to third
countries (in his case, Syria) to be interrogated by security
services known for torture. Others have been subjected to months of
virtually nonstop questioning, sexual abuse, waterboarding and
injections with intravenous fluids until they urinate on
themselves. Still others, like KindHearts, an American charity in
Toledo, Ohio, have had their assets frozen under the USA Patriot
Act and all their records seized without so much as a charge, much
less a finding, of wrongdoing.
In the name of the "preventive paradigm," thousands of Arab and
Muslim immigrants have been singled out, essentially on the basis
of their ethnicity or religion, for special treatment, including
mandatory registration, FBI interviews and preventive detention.
Businesses have been served with more than 100,000 "national
security letters," which permit the FBI to demand records on
customers without a court order or individualized basis for suspicion.
We have all been subjected to unprecedented secrecy about what
elected officials are doing in our name while simultaneously
suffering unprecedented official intrusion into our private lives
by increased video surveillance, warrantless wiretapping and data-
mining. Most tragically, more than 3,700 Americans and more than
70,000 Iraqi civilians have given their lives for the "preventive
paradigm," which was used to justify going to war against a country
that had not attacked us and posed no imminent threat of attack.
The preventive paradigm had its genesis on September 12, 2001. In
Bush at War, Bob Woodward recounts a White House meeting in which
FBI Director Robert Mueller advised that authorities must take care
not to taint evidence in seeking 9/11 accomplices so that they
could eventually be held accountable.
Ashcroft immediately objected, saying, "The chief mission of US law
enforcement...is to stop another attack and apprehend any
accomplices.... If we can't bring them to trial, so be it."
Ever since, the "war on terror" has been characterized by highly
coercive, "forward-looking" pre-emptive measures--warrantless
wiretapping, detention, coercive interrogation, even war--
undertaken not on evidence of past or current wrongdoing but on
speculation about future threats.
In isolation, neither the goal of preventing future attacks nor the
tactic of using coercive measures is novel or troubling. All law
enforcement seeks to prevent crime, and coercion is a necessary
element of state power. However, when the end of prevention and the
means of coercion are combined in the Bush Administration's
preventive paradigm, they produce a troubling form of anticipatory
state violence -- acting before wrongdoing has actually occurred
and often without any good evidence for believing that wrongdoing
will ever occur.
The Bush strategy turns the law's traditional approach to state
coercion on its head. With narrow exceptions, the rule of law
reserves invasions of privacy, detention, punishment and use of
military force for those who have been shown --on the basis of
sound evidence and fair procedures-- to have committed or to be
plotting some wrong. The police can tap phones or search homes, but
only when there is probable cause to believe that a crime has been
committed and that the search is likely to find evidence of the
crime. People can be preventively detained pending trial, but only
when there is both probable cause of past wrongdoing and concrete
evidence that they pose a danger to the community or are likely to
abscond if left at large. And under international law, nations may
use military force unilaterally only in response to an objectively
verifiable attack or threat of imminent attack.
These bedrock legal requirements are a hindrance to "going on
offense." Accordingly, the Administration has asserted sweeping
executive discretion, eschewed questions of guilt or innocence and
substituted secrecy and speculation for accountability and
verifiable fact. Where the rule of law demands fair and open
procedures, the preventive paradigm employs truncated processes
often conducted in secret, denying the accused a meaningful
opportunity to respond. The need for pre-emptive action is said to
justify secrecy and shortcuts, whatever the cost to innocents.
Where the rule of law demands that people be held liable only for
their own actions, the Administration has frequently employed guilt
by association and ethnic profiling to target suspected future
wrongdoers. And where the rule of law absolutely prohibits torture
and disappearances, the preventive paradigm views these tactics as
lesser evils to defuse the proverbial ticking time bomb.
All other things being equal, preventing a terrorist act is, of
course, preferable to responding after the fact -- all the more so
when the threats include weapons of mass destruction and our
adversaries are difficult to detect, willing to kill themselves and
seemingly unconstrained by any recognizable considerations of law,
morality or human dignity. But there are plenty of preventive
counterterrorism measures that conform to the rule of law, such as
increased protections at borders and around vulnerable targets,
institutional reforms designed to encourage better information
sharing, even military force and military detention when employed
in self-defense.
The real problems arise when the state uses highly coercive
measures --depriving people of their life, liberty or property, or
going to war-- based on speculation, without adhering to the laws
long seen as critical to regulating and legitimizing such force.
Even if one were to accept the "ends justify the means" rationales
advanced for the preventive paradigm, the paradigm fails its own
test: There is little or no evidence that the Administration's
coercive pre-emptive measures have made us safer, and substantial
evidence that they have in fact exacerbated the dangers we face.
Consider the costliest example: the war in Iraq. Precisely because
the preventive doctrine turns on speculation about non-imminent
events, it permitted the Administration to turn its focus from Al
Qaeda, the organization that attacked us on 9/11, to Iraq, a nation
that did not. The Iraq War has by virtually all accounts made the
United States, the Iraqi people, many of our allies and for that
matter much of the world more vulnerable to terrorists. By
targeting Iraq, the Bush Administration not only siphoned off much-
needed resources from the struggle against Al Qaeda but also
created a golden opportunity for Al Qaeda to inspire and recruit
others to attack US and allied targets. And our invasion of Iraq
has turned it into the world's premier terrorist training ground.
The preventive paradigm has been no more effective in other aspects
of the "war on terror." According to US figures, international
terrorist attacks increased by 300 percent between 2003 and 2004.
In 2005 alone, there were 360 suicide bombings, resulting in 3,000
deaths, compared with an annual average of only about 90 such
attacks over the five preceding years. That hardly constitutes
progress.
But what about the fact that, other than the anthrax mailings in
2001, there has not been another terrorist attack in the United
States since 9/11? The real question, of course, is whether the
Administration's coercive preventive measures can be credited for
that. There were eight years between the first and second attacks
on the World Trade Center.
And when one looks at what the preventive paradigm has come up with
in terms of concrete results, it's an astonishingly thin file. At
Guantánamo, for example, once said to house "the worst of the
worst," the Pentagon's Combatant Status Review Tribunals' own
findings categorized only 8 percent of some 500 detainees held
there in 2006 as fighters for Al Qaeda or the Taliban. More than
half of the 775 Guantánamo detainees have now been released,
suggesting they may not have been "the worst of the worst" after all.
As for terror cells at home, the FBI admitted in February 2005 that
it had yet to identify a single Al Qaeda sleeper cell in the United
States. And it hasn't found any since -- unless you count the
Florida group arrested in 2006, whose principal step toward an
alleged plot to blow up the Sears Tower was to order combat boots
and whose only Al Qaeda "connection" was to a federal informant
pretending to be Al Qaeda.
The Justice Department claims on its website www.lifeandliberty.gov
to have charged more than 400 people in "terrorism-related" cases,
but its own Inspector General has criticized those figures as
inflated. The vast majority of the cases involved not terrorism
but minor nonviolent offenses such as immigration fraud, credit-
card fraud or lying to an FBI agent. The New York Times and the
Washington Post found that only 39 of the convictions were for a
terrorism crime. And virtually all of those were for "material
support" to groups labeled terrorist -- a crime that requires no
proof. While prosecutors have obtained a handful of convictions
for conspiracy to engage in terrorism, several of those convictions
rest on extremely broad statutes that don't require proof of any
specific plan or act, or on questionable entrapment tactics by
government informants.
Many of the Administration's most highly touted "terrorism" cases
have disintegrated after the Justice Department's initial self-
congratulatory press conference announcing the indictment, most
notably those against Capt. James Yee, a Muslim chaplain at
Guantánamo initially accused of being a spy; Sami Al-Arian, a
computer science professor acquitted on charges of conspiracy to
kill Americans; Muhammad Salah and Abdelhaleem Ashqar, acquitted in
Chicago of aiding Hamas; Sami al-Hussayen, a Saudi student
acquitted by an Idaho jury of charges that he had aided terrorism
by posting links on his website to other sites containing jihadist
rhetoric; and Yaser Hamdi, the US citizen held for years as an
enemy combatant but released from military custody when the
government faced the prospect of having to prove that he was an
enemy combatant. The Administration recently managed to convict
José Padilla, the other US citizen held as an enemy combatant, not
for any of the terrorist plots against the United States that it
once accused him of hatching but for attending an Al Qaeda training
camp and conspiring to support Muslim rebels in Chechnya and Bosnia
before 9/11.
Overall, the government's success rate in cases alleging terrorist
charges since 9/11 is only 29 percent, compared with a 92 percent
conviction rate for felonies. This is an astounding statistic,
because presumably federal juries are not predisposed to sympathize
with Arab or Muslim defendants accused of terrorism. But when one
prosecutes prematurely, failure is often the result.
The government's "preventive" immigration initiatives have come up
even more empty-handed. After 9/11 the Bush Administration called
in 80,000 foreign nationals for fingerprinting, photographing and
"special registration" simply because they came from predominantly
Arab or Muslim countries; sought out another 8,000 young men from
the same countries for FBI interviews; and placed more than 5,000
foreign nationals here in preventive detention. Yet as of
September 2007, not one of these people stands convicted of a
terrorist crime. The government's record, in what is surely the
largest campaign of ethnic profiling since the Japanese internment
of World War II, is 0 for 93,000.
These statistics offer solid evidence to support the overwhelming
consensus that Foreign Policy found when it polled more than 100
foreign policy experts --evenly dispersed along the political
spectrum-- and found that 91 percent felt that the world is
becoming more dangerous for the United States, and that 84 percent
said we are not winning the "war on terror."
It is certainly possible that some of these preventive measures
deterred would-be terrorists from attacking us or helped to uncover
and foil terrorist plots before they could come to fruition. But if
real plots had been foiled and real terrorists identified, one
would expect some criminal convictions to follow. When FBI agents
successfully foiled a plot by Sheik Omar Abdel Rahman (popularly
known as "the blind sheik") and others to bomb bridges and tunnels
around Manhattan in the 1990s, it also convicted the plotters and
sent them to prison for life.
In October 2005 Bush claimed that the United States and its allies
had foiled ten terrorist plots. But he couldn't point to a single
convicted terrorist. Consider just one of Bush's ten "success"
stories, the one about which he provided the most details: an
alleged Al Qaeda plot to fly an airplane into the Library Tower, a
skyscraper in Los Angeles. The perpetrators, described only as
Southeast Asians, were said to have been captured in early 2002 in
Asia. As far as we know, however, no one has ever been charged or
tried for this alleged terror plot. Intelligence officials told the
Washington Post that there was "deep disagreement within the
intelligence community about...whether it was ever much more than
talk." A senior FBI official said, "To take that and make it into a
disrupted plot is just ludicrous." American officials claim to have
learned about some of the plot's details by interrogating captured
Al Qaeda leader Khalid Shaikh Mohammed, but he was captured in
2003, long after the perpetrators had been arrested. As the Los
Angeles Times put it, "By the time anybody knew about it, the
threat--if there had been one--had passed, federal counter-
terrorism officials said." These facts --all omitted in Bush's
retelling-- suggest that such claims of success need to be viewed
skeptically.
if the Bush strategy were merely ineffectual, that would be bad
enough. But it's worse than that; the President's policy has
actually made us significantly less secure. While the
Administration has concentrated on swaggeringly aggressive coercive
initiatives of dubious effect, it has neglected less dramatic but
more effective preventive initiatives. In December 2005 the
bipartisan 9/11 Commission gave the Administration failing or near-
failing grades on many of the most basic domestic security
measures, including assessing critical infrastructure
vulnerabilities, securing weapons of mass destruction, screening
airline passengers and cargo, sharing information between law
enforcement and intelligence agencies, insuring that first
responders have adequate communications and supporting secular
education in Muslim countries.
We spend more in a day in Iraq than we do annually on some of the
most important defensive initiatives here at home.
The preventive paradigm has also made it more difficult to bring
terrorists to justice, just as FBI Director Mueller warned on
September 12. When the Administration chooses to disappear suspects
into secret prisons and use waterboarding to encourage them to
talk, it forfeits any possibility of bringing the suspects to
justice for their alleged crimes, because evidence obtained
coercively at a "black site" would never be admissible in a fair
and legitimate trial. That's the real reason no one has yet been
brought to trial at Guantánamo. There is debate about whether
torture ever results in reliable intelligence -- but there can be
no debate that it radically curtails the government's ability to
bring a terrorist to justice.
Assuming that the principal terrorist threat still comes from Al
Qaeda or, more broadly, a violence-prone fundamentalist strain of
Islam, and that the "enemies" in this struggle are a relatively
small number of Arab and Muslim men, it is all the more critical
that we develop close, positive ties with Arab and Muslim
communities here and abroad. By alienating those whose help we need
most, the preventive paradigm has had exactly the opposite effect.
At the same time, we have given Al Qaeda the best propaganda it
could ever have hoped for. Then-Defense Secretary Donald Rumsfeld
identified the critical question in an October 2003 internal
Pentagon memo: "Are we capturing, killing or deterring and
dissuading more terrorists every day than the madrassas and the
radical clerics are recruiting, training and deploying against us?"
While there is no precise metric for answering Rumsfeld's question,
there can be little doubt that our "preventive" tactics have been a
boon to terrorist recruitment throughout the world.
More broadly still, our actions have radically undermined our
standing in the world. The damage to US prestige was perhaps most
dramatically revealed when, after the report of CIA black sites
surfaced in November 2005, Russia, among several other countries,
promptly issued a press release claiming that it had nothing to do
with the sites. When Russia feels the need to distance itself from
the United States out of concern that its human rights image might
be tarnished by association, we have fallen far.
In short, we have gone from being the object of the world's
sympathy immediately after 9/11 to being the country most likely to
be hated. Anti-Americanism is at an all-time high. In some
countries, Osama bin Laden has a higher approval rating than the
United States. And much of the anti-Americanism is tied to the
perception that the United States has pursued its "war on terror"
in an arrogant, unilateral fashion, defying the very values we once
championed.
The Bush Administration just doesn't get it.
Its National Defense Strategy, published by the Pentagon, warns
that "our strength as a nation state will continue to be challenged
by those who employ a strategy of the weak using international
fora, judicial processes, and terrorism." The proposition that
judicial processes and international accountability--the very
essence of the rule of law--are to be dismissed as a strategy of
the weak, aligned with terrorism itself, makes clear that the
Administration has come to view the rule of law as an obstacle, not
an asset, in its effort to protect us from terrorist attack.
Our long-term security turns not on "going on offense" by locking
up thousands of "suspected terrorists" who turn out to have no
connection to terrorism; nor on forcing suspects to bark like dogs,
urinate and defecate on themselves, and endure sexual humiliation;
nor on attacking countries that have not threatened to attack us.
Security rests not on exceptionalism and double standards but on a
commitment to fairness, justice and the rule of law. The rule of
law in no way precludes a state from defending itself from
terrorists but requires that it do so within constraints. And
properly understood, those constraints are assets, not obstacles.
Aharon Barak, who recently retired as president of Israel's Supreme
Court, said it best in a case forbidding the use of "moderate
physical pressure" in interrogating Palestinian terror suspects: "A
democracy must sometimes fight terror with one hand tied behind its
back. Even so, a democracy has the upper hand. The rule of law and
the liberty of an individual constitute important components in its
understanding of security. At the end of the day, they strengthen
its spirit and this strength allows it to overcome its difficulties."
The preventive paradigm has compromised our spirit, strengthened
our enemies and left us less free and less safe.
If we are ready to learn from our mistakes, however, there is a
better way to defend ourselves--through, rather than despite, a
recommitment to the rule of law.
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