Karen J. Greenberg is the executive director of the New York University Center on Law and Security
Crossposted from TomDispatch
In the seven weeks since the killing of Osama bin Laden, pundits and experts of many stripes have concluded that his death represents a marker of genuine significance in the story of America’s encounter with terrorism. Peter Bergen, a bin Laden expert, was typically blunt the day after the death when he wrote, "Killing bin Laden is the end of the war on terror. We can just sort of announce that right now."
Yet you wouldn’t know it in Washington where, if anything, the Obama administration and Congress have interpreted the killing of al-Qaeda’s leader as a virtual license to double down on every “front” in the war on terror. Secretary of State Hillary Clinton was no less blunt than Bergen, but with quite a different endpoint in mind. “Even as we mark this milestone,” she said on the day Bergen’s comments were published, “we should not forget that the battle to stop al-Qaeda and its syndicate of terror will not end with the death of bin Laden. Indeed, we must take this opportunity to renew our resolve and redouble our efforts.”
National Security Adviser John Brennan concurred. “This is a strategic blow to al-Qaeda,” he commented in a White House press briefing. “It is a necessary but not necessarily sufficient blow to lead to its demise. But we are determined to destroy it." Similarly, at his confirmation hearings to become Secretary of Defense, CIA Director Leon Panetta called for Washington to expand its shadow wars. "We’ve got to keep the pressure up,” he told the senators.
As if to underscore the policy implications of this commitment to “redoubling our efforts,” drone aircraft were dispatched on escalating post-bin-Laden assassination runs from Yemen (including a May 6th failed attempt on American al-Qaeda follower Anwar al-Awlaki) to Pakistan. There, on May 23rd, a drone failed to take out Taliban leader Mullah Omar, while, on June 2nd, an attempt to kill Ilyas Kashmiri, a militant associated with the 2008 terrorist attack on Mumbai, India, may (or may not) have failed. And those were only the most publicized of escalating drone attacks, while reports of a major “intensification” of the drone campaign in Yemen are pouring in.
In the meantime, President Obama used the bin Laden moment to push through and sign into law a four-year renewal of the Patriot Act, despite bipartisan resistance in Congress and the reservations of civil liberties groups. They had stalled its passage earlier in the year, hoping to curtail some of its particularly onerous sections, including the “lone wolf” provision that allows surveillance of non-US citizens in America, even if they have no ties to foreign powers, and the notorious Section 215, which grants the FBI authority to obtain library and business records in the name of national security.
One thing could not be doubted. The administration was visibly using the bin Laden moment to renew George W. Bush’s Global War on Terror (even if without that moniker). And let’s not forget about the leaders of Congress, who promptly accelerated their efforts to ensure that the apparatus for the war that 9/11 started would never die. Congressman Howard McKeon (R-CA), chairman of the House Armed Services Committee, was typical. On May 9th, he introduced legislation meant to embed in law the principle of indefinite detention without trial for suspected terrorists until “the end of hostilities.” What this would mean, in reality, is the perpetuation ad infinitum of that Bush-era creation, our prison complex at Guantanamo (not to speak of our second Guantanamo at Bagram Air Base in Afghanistan).
In other words, Washington now seems to be engaged in a wholesale post-bin Laden ratification of business as usual, but this time on steroids.
Perhaps after all these years the nation’s leadership was simply unprepared for bin Laden’s death and hasn’t been able to imagine switching directions readily, or perhaps the war on terror has simply become a way of life. Certainly, the Obama administration has a record of translating potentially propitious moments for change into strategic paralysis.
Remember, for instance, the president’s day-one-in-the-Oval-Office pledge to close Guantanamo within a year? Six months later, the administration had doubled down on the idea of the indefinite detention of terror suspects and so effectively made Obama’s promise meaningless. It’s a pattern that’s repeated itself when it comes to the Afghan War, the trial in New York City of 9/11 “mastermind” Khalid Sheik Mohammed, and other crucial matters.
But think about it for a moment: Should the postmortem to bin Laden be just a continuation of the same-old-same-old? Shouldn’t there be a national pause for reflection as the tenth anniversary of 9/11 approaches? Wouldn’t it make sense to stop and rethink policy in the light of his death and of a visibly tumultuous new moment in the Greater Middle East with its various uprisings and brewing civil wars?
Why has an administration that prides itself on thinking before doing pushed on without a moment’s reflection? Why shouldn’t the president establish a commission filled with at least a few new faces (and so a few new thoughts) to assess what a war on terror might even mean today? And why not insist that, until the findings of such a commission come in, there will be no new expenditures, legislation, or policy decisions to continue -- let alone further expand -- that war, its detention policies, or for that matter the Patriot Act?
Were the President to establish such a commission, here are five symbolic steps it might recommend -- hardly the only ones, but a start -- that could help set the U.S. on another path and put the war on terror behind us:
1. Concede that there is no more tangible endpoint for the war on terror than the death of bin Laden: Rather than trying to banish the term “war on terror” (as the Obama administration did in 2009), let’s face it squarely. Practically speaking, at the moment as for the past near-decade, it is little but a catch-all phrase for “endless war.”
Our commission would have to face a basic question: If we are not to commit to war without end, what could the “cessation of hostilities” possibly mean when it comes to American terror policy? Any attempt at a definition would have to grapple with the real meaning of bin Laden’s death. After all, it may be the only tangible victory we’ll ever have. What a moment, then, to announce that the war on terror has now passed out of its “war” phase and entered a phase of risk management.
At present, Congress is considering an expansion of the Authorization to Use Military Force (AUMF) that it passed on September 14, 2001, and that allowed “the use of force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of 9/11. The current version builds upon the previous open-ended war model and actually expands the number of possible targets for the use of force to those who “have engaged in hostilities or have directly supported hostilities in aid of a nation, organization or person” that is engaged in hostilities against the U.S. or its coalition partners.
Nor does it have an end date. How long this overly broad, overly vague policy would remain in effect remains unknown. It would be far better if current and pending revisions of the AUMF were more honest in acknowledging that the counterterrorism policy it promotes is slated to last indefinitely, much like the “wars” on drugs and organized crime. This would, at least, put in front of lawmakers the appropriate question: Are you willing to authorize military force as your perpetual state of risk management against an ever-expanding list of enemies? Perhaps, in the context of an endless state of war (and the expenses that would go with it), Congress might prove more circumspect about granting such broad powers to the president.
2. Release John Walker Lindh: This would be a symbolic act of compassion, a way to turn our attention back to the first moments of the Bush administration’s disastrous Global War on Terror, and perhaps help along the process of heading Washington in new directions. Lindh, you may remember, was the young man captured and turned over to U.S. forces by Afghan allies in the early weeks of the invasion of Afghanistan.
An American who had spent time with the Taliban and was ready to fight for them (but not against the United States), he was the first person against whom the Bush administration, in one of their favored phrases, “took off the gloves.” He was mistreated and abused while wounded. Later, faced with the prospect of never emerging from jail, he provided information to the authorities in exchange for a 20-year sentence in a plea deal.
Even George W. Bush described him as a “poor boy” who had been “misled,” an upper-middle-class American kid whose teenage identity issues sent him deep into the fundamentalist part of the Muslim world, though with no indication on his part of any interest in jihad, nor the slightest idea that the United States would invade Afghanistan and he would find himself on the other side of the lines from his own countrymen.
Lindh’s mistreatment in Afghanistan and subsequent sentencing here were essentially acts of symbolic revenge for the tragic death of CIA agent Mike Spann, the first official American casualty in what was already being called the Global War on Terror. His sentence was also meant as a warning to others who might consider his path.
As it happened, the judge in charge of the case acknowledged that there was absolutely no evidence Lindh had been involved in Spann’s murder. Bewilderingly enough, he nonetheless allowed the prosecutor to tie Lindh inexorably to Spann's murder through the emotional testimony of Spann's father at sentencing.
The U.S. government was sending a message. If this country would punish one of its own in such a fashion without evidence of a crime or even of theoretical allegiance to the idea of jihad against the West, what wouldn’t it do to its foreign enemies?
In prison, Lindh has since committed himself to the quiet life of a scholar of Islam. Many who have followed this case think that, at age 30, he should be returned to his family.
Lindh’s release would be a signal that the United States was ready to return to an era of calm justice and that the war on terror, with all its excesses, was truly coming to an end.
3. Create a rehabilitation program for releasing Guantanamo detainees currently assigned to indefinite detention: In the same spirit, it’s time to signal that, along with the war on terror, the paroxysm of fears that led us to detain individuals who had not committed crimes, but were otherwise deemed harmful, has come to an end. The Obama administration’s most recent directive on Guantanamo follows its long-hinted-at intention to hold approximately four-dozen Guantanamo detainees in indefinite detention for a variety of reasons. Bottom line: although there is insufficient evidence to convict them, administration officials have determined that each of them could pose a danger to this country, if released.
Under U.S. law, detention without trial poses constitutional problems, which is why Guantanamo detainees were granted habeas corpus rights by the Supreme Court. Similarly, under the laws of war, the detention of prisoners is only justified while hostilities are ongoing. If there really is no "war" on terror, it is hard to justify holding detainees indefinitely without a fair adjudication of their rights in a court of law.
Why not, then, consider creating an American version of the de-radicalization or rehabilitation programs that flourish elsewhere in the world -- notably, for example in Indonesia -- as a prelude to release for those where the evidence for a trial is absent? A rehabilitation program might steer individuals towards non-violent behavior, whatever their ideological leanings; it might re-educate them on the subject of Islam; it might introduce notions of rights and liberties. Religious leaders, psychologists, and counterterrorism officials could fashion such a program jointly as they do elsewhere in the world. President Obama surprisingly inserted the word “rehabilitation” in his March 2011 directive on the future of Guantánamo (“Executive Order -- Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force”). Why not use this milestone moment in the war on terror to follow up in a concrete fashion?
4. Revisit the issue of prosecuting those responsible for America’s offshore torture policies in the Bush years: The Obama administration made a decision not to investigate or prosecute the creators of the torture policy that defined the Bush administration’s interrogation tactics in its war on terror. They did so, its officials claimed, in an effort to focus on the overwhelming issues the new presidency had to confront. They were visibly eager to avoid stoking a bitter partisan battle that they feared might further divide the country.
They banked instead on the idea that the lawyers and politicians responsible for that torture policy and the “black sites” and “extraordinary renditions” that went with it would quietly fade into the woodwork. This has obviously not been the case. On the contrary, in recent months former officials and members of the Bush administration have openly re-embraced those policies. In the aftermath of bin Laden’s death, as if on cue, they immediately flooded the newspapers and air waves with unsupportable claims that torture had led Washington to the al-Qaeda leader and should be a crucial part of the American arsenal in the future.
Forget for a moment that torture has still not been shown to have extracted valuable information (not otherwise available) from terror suspects. We know, in fact, that on a number of occasions it led investigators down the wrong path. More importantly, it was a symptom of the war-on-terror frenzy that gripped this country and led it down the wrong path.
We now have all the proof we need that pretending torture never happened, legally speaking, only helps keep us embroiled in that “war” and the emotions it evokes. If the war on terror is ever to end, then tolerance for the support of torture has to end as well. Nothing would accomplish this better than the actual prosecution of the American crimes of that era -- or at the very least, the investigation and official condemnation of those who sidestepped the constitution and diminished the moral standing of the country at home and abroad.
5. Restore permanently to the Department of Justice responsibility for trying terrorists from around the globe: Since the fall of 2001, the Justice Department has been largely deprived of its portfolio for trying terrorists captured outside the United States. With the exception perhaps of cases involving terror attacks on military targets, there is no reason Justice should not prosecute such cases, as in the 1990s it successfully prosecuted the conspirators who first attacked the World Trade Center, as it did in the African embassy bombings cases, and as it has recently done in Chicago in the case of Tahawwur Hussain Rana, who was convicted of providing material support to the terrorist group Lashkar-e-Taiba. (He was acquitted of conspiracy charges in the Mumbai bombing.) Since 9/11, the ability of judges, prosecutors, and defense attorneys to understand terrorism cases and try them responsibly has, if anything, increased immeasurably, while the military commissions system instituted by the Bush administration at Guantanamo and kept in place by President Obama has crashed disastrously and repeatedly on the shoals of politics, misinformation, and faulty procedure.
Whatever a commission might do when it came to bringing the war on terror officially to an end, this is the moment -- with the death of bin Laden, the Arab uprisings, and the 10th anniversary of 9/11 -- to do it and to begin to seek ways to defend America even while guiding us back to our true self: a country with respect for the law, restraint when it comes to the use of force, and rights for all.
Karen J. Greenberg is the executive director of the New York University Center on Law and Security, author of The Least Worst Place: Guantanamo’s First One Hundred Days, editor of The Torture Debate in America, and a frequent contributor to TomDispatch.com. Research for this piece was contributed by Susan Quatrone, Gil Shefer, Camilla McFarland, and Dominic Saglibene from the NYU Center on Law and Security. To listen to Timothy MacBain’s latest TomCast audio interview in which Greenberg discusses how fear of terrorism increases presidential power, click here, or download it to your iPod here.
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