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Why We're Losing the War on Terror | The Nation

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Why We're Losing the War on Terror

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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.

This article is adapted from David Cole and Jules Lobel's new book, Less Safe, Less Free: Why America Is Losing the War on Terror (New Press).

About the Author

Jules Lobel
Jules Lobel is vice president of the Center for Constitutional Rights.
David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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Even if one were to accept as a moral or ethical matter 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 about ninety 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 that 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 entire 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 thirty-nine 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 that the defendant ever intended to further a terrorist act. 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.

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