Friday, July 4, 2008

U.S Counter-terrorism policy: A Critique


Maryam Sakeenah


A lot has changed since September 11, 2001. In its immediate response to the 9/11 terrorist attack, the USA took up an offensive posture full of the bravado and the rhetoric of 'war.' America announced its 'war' on terrorism, which was going to be relentless. The use of the word 'war' has been extremely misleading, disproportionate to the strength, the means and the nature of the enemy the US perceived itself to be pitted against. It acted as a justification for the ill-planned and unsuited strategies taken up by the US to defeat the enemy. The word 'war' reeks of militarism. Calling the US response strategy a 'war on terror' meant the use of decisive military force against a dissipated, hard to identify and unconventional enemy. According to Philip Heymann, "The danger is that for several reasons, the use of the term 'war' leads us in the wrong direction. The very term suggests a primacy for military force; that is what war has been always about. We are captives of the dictum, 'to a man with a hammer, everything looks like a nail.'" Resultantly, the military has put in all its pride and strength into an asymmetrical, ill-advised struggle against a threat which needs to be tackled more insightfully and wisely, not merely by muscle-power.

The phrase "War on Terror" has been referred to as a false metaphor. Linguist George Lakoff has argued that there cannot literally be a war on terror, since terror is an abstract noun. "Terror cannot be destroyed by weapons or signing a peace treaty. A war on terror has no end." Jason Burke opines: "There are multiple ways of defining terrorism, and all are subjective. Terrorism is after all, a tactic. The term 'war on terrorism' is thus effectively nonsensical." A "war" against terrorism is plainly wrong since terrorist attacks are considered criminal acts like murder and therefore should be investigated by the police with the perpetrators brought to justice and given a fair trial in a court of law.

The US adopted the pre-emptive strategy, as made clear in several speeches and statements by the US President, the adoption of the maniacal 'National Missile Defence' system or the 'Patriot Act' and a host of other legislation legitimizing all ways the regime deemed fit to be used in its righteous crusade against terrorism.

President George W. Bush articulated the goals of the "War on Terrorism" in a speech, in which he said it "The war will not end until every terrorist group of global reach has been found, stopped and defeated." He also called the war "a task that does not end." The idea of a 'perpetual war' floated by the US is justified as the enemy against which the state is at war is a phenomenon, an ideology, a tactic_ an abstract entity no firepower can defeat. For rooting it out, a crusade without end is necessary.

Besides, the terminology here helps keep the nation supportive of the state's methods and means for keeping up the fight_ after all, America is at 'war' with a great evil murderous gang out there. It whips up jingoism and patriotic fervour which wars help create, as a support base for the government's foreign adventures. Public opinion keeps mum.

Former Defense Secretary Rumsfeld reinforces the argument: "I say that victory is persuading the American people and the rest of the world that this is not a quick matter that's going to be over in a month or a year or even five years. It is something that we need to do so that we can continue to live in a world with powerful weapons and with people who are willing to use those powerful weapons. And we can do that as a country. And that would be a victory, in my view"

The government took an aggressive posture, yet all the while, the ignorance at the base of the rhetoric and war planning remained there. Perhaps this is why the counter terrorism strategy devised by the gurus at Washington fell flat. Assessing the precise nature of a terrorist threat requires understanding the motivations and grievances of the terrorist, their mode of operation and their capabilities. The American public, and even the government were pitifully ignorant of all of these on many counts. Those at the helm too were unable to answer some fundamental, crucial questions. They knew little about the socio-political dynamics, the cultural imperatives, the history and background of the peoples and the lands they set out to conquer.

Philip Heymann comments: "Faced with uncertainties, the Bush administration defined the dangers we faced as 'war', demanding and justifying a radical shifting of our domestic and international priorities."

An important feature of this 'radical shift' was the overturning of America's traditional assumptions about democratic freedom and the supremacy of law. The decision making process did not require the sanction of the Congress, or even any Congressional procedure. The policies and strategies were 'Pentagon-centric.'

America's allies were afforded no options as the US decided to dictate its terms with an imperious arrogance: 'you are with us or against us.' You had to go the American Way, or be the enemy. Full Stop. The justification given for the invasion of Iraq (prior to its happening) was to prevent terrorist or other attacks by Iraq on the United States or other nations. This was the pre-emptive doctrine at the base of the war.

However, the war becomes a 'wrong' because the justifications given for US interventionism in the War on Terror do not fulfill any of the criteria of a just war. The pre-emptive war-mongering has undermined international law and the authority of the United Nations. Being clearly in defiance of the UN Charter which, in Article 2, clearly forbids 'the threat or use of force against the territorial integrity or political independence of any state', this can be termed as a war of aggression. What makes it more heinous is that the strategies employed in the war have been underhand and dirty, justified by the logic of 'collateral damage.' These are unequivocally categorized by international law as war crimes. There exist several treaties, primarily the Geneva Conventions providing for the protection of prisoners and victims of war or any armed conflict. For this reason, according to international law, officials and members of the Bush administration are potentially criminally culpable under their command responsibility.


After 9/11 things began to look curiously like the uncanny world of 'Nineteen Eighty Four' predicted by George Orwell, where 'War was Peace', and 'Ignorance was Strength.' Big Brother was always watching.

The war took a huge toll on civil liberties within and without America. At home, particular groups were subjected to exceptional steps of investigation. The focus was exclusively on immigrants from Muslim countries, which increased their sense of alienation. This had a major impact on the sense of shared community, which determines much of an individual's security and sense of well-being in the place of his residence. Immigration and civil laws were heavily altered through the 'Patriot Act'. The media and official rhetoric worked hard to keep the fear level at home on an all-time high through propaganda and exaggeration so that the public accepted the radical shift as a patriotic necessity.

The Bush Administration restricted civil liberties and created a culture of fear. The USA Patriot Act legislation was introduced shortly after 9/11, which significantly expanded U.S. law enforcement power. President Bush also proposed 'Total Information Awareness', a federal program to collect and process massive amounts of data to identify behaviors consistent with terrorist threats. The Orwellian world of Big Brother watching every move finally materialized as mass surveillance destroying civil liberties and intruding into private spaces was massively carried out. Many fear that the government is systematically removing civil liberties from the population and engaging in racial profiling. This approach has increased public hostility to dissenting voices by encouraging the view that whoever dissents is 'unpatriotic' and treasonous for disagreeing with government policies, which, as the media convinces us, are 'in the best interests of the nation.'


In order to step up defences against further terrorist attacks, the US government began to devise ways to detain people 'where there was a real possibility of involvement with terrorism.' However, ironically, this possibility in most cases of detained individuals, was either absent altogether or very low indeed.

This said, shortly after 9/11 the President issued a 'military order' permitting the secretary of defense to direct indefinite detention of any alien (foreign national), who has been found to support international terrorism of any sort. This was followed by an extension of the detention powers even to US citizens.

This raises deep concerns about freedom within the United States. The State has granted exclusive powers to the Executive to detain citizens for indefinite periods, which is clearly unconstitutional, as any such major changes in domestic laws have to go through the due legal process through the legislature. It must also be noted that the new detention laws explicitly deny the right of judicial review of evidence on the basis of which an individual can be detained. This clearly means that detention under US counter-terrorism laws required no burden of proof and that there is absolutely no requirement of presenting public evidence for crime before detention.

This gaping loophole has led to widespread misuse of the law, which has even ordered indefinite detention at undisclosed locations of aliens guilty of unauthorized stay within the US. Philip Heymann writes, "There are about 20 million aliens within the US at any given time, most of whom are at least technically in violation of one or the other of the many visa regulations. This fact is now being used as a device for holding suspects_ most hardly linked to terrorism in any way_ for purposes of interrogation or incapacitation." Taking on from here, the government is also empowered to detain people as 'witnesses' or 'prospective witnesses' before a jury.

The appalling truth, however, is that despite years of detention, the investigating authorities have utterly failed to produce any tangible evidence about involvement in terrorism, except for a minuscule percentage. The evidence found, however, in most cases, only proved that a number of detainees were being held without having any past record of links to terrorism, on the basis of mere suspicion. Heymann comments: "Subjecting this vastly larger class to detention makes a fundamental change in the relation of American citizens, resident aliens and visitors to those governing the United States. This change has been made without offering any explanation. However, even with an explanation, any such change should be made by legislation, not by the Executive. This has only been tolerated by Americans because it is limited to a specific group. To which most Americans do not belong."

According to the Presidential Order, the trial of detainees is supposed to take place before a military tribunal. This requires no public display of evidence which in normal cases, US courts demand as of necessity. The military tribunal is formed by the Defense Secretary, and does not involve trial before a judge or jury. The proceedings are not made public and the proofs presented need not satisfy traditional rules of evidence. Identity of witnesses remains hidden and convictions are made without the requirement of unanimity of opinion. Penalties according to the discretion of the tribunal can be awarded, including the death penalty. Importantly, there can be no judicial review of the sentence by a civilian court of law.

One wonders why the laws had to be meddled with when civilian courts of law and an effective justice system within the United States exists. The only reason explaining the creation of special courts with a different set of rules and unmitigated powers is to be able to convict with lesser or a different sort of evidence. The stringent requirements of standardized judicial proceedings need not apply to hinder counter-terrorism measures.

Those detained outside the territory of the United States at Guantanamo are termed as 'enemy combatants', who do not have the same rights as those of prisoners of war granted by the Geneva Conventions. The same is also true for anyone held by the use of immigration laws. The Bush administration maintains that there can be absolutely no judicial review of those non-citizens held at locations outside of the US. American citizens detained within the US, however, have the right to a barely minimum form of judicial review. However, none of these have the right to seek access to a lawyer. The families of detainees are in most cases unaware of their internment location, and have no access to them at all. The period of detention is unspecified and indefinite. This makes clear that the US government is unwilling to even give the most basic judicial protection to those held on terrorism charges. It is a blind justice.

There is no record of details of arrests made submitted to the legal institutions. The administration only reports arrests to intelligence departments. Interestingly, however, the intelligence committees complain that they are not given adequate information regarding detainees and the legal proceedings.

Adam Clymer wrote in the New York Times, "The Bush administration has put a much tighter lid than recent presidents on government proceedings and the public release of information, exhibiting a penchant for secrecy that has been striking historians, legal experts and law makers of both parties." According to Senator Patrick Lahey, "I've never known an administration that is more difficult to get information from."

Another major issue of concern connected with this is the strategy of coercive interrogation through sophisticated technology. The government has authorized coercive interrogation methods publicly for non US citizens detained outside the US. For this purpose, the State has sent foreign terror suspects to locations outside the US where coercive interrogation (even involving torture in most cases) can be carried out. The US government has sent foreign suspects to 'allied' countries where torture is a routine practice. The US government, for reasons unexplained, holds an undisclosed number of detainees (presumably over 2000) at undisclosed locations.

There has been some debate over the issue of legalizing some forms of torture for investigation within the United States as well, which has up till now been a signatory to several treaties prohibiting torture. Although the US accepts torture to be illegal, yet it allows its intelligence agencies to use it in 'dire circumstances when no other means are available for extracting necessary information to urgently defuse an emergency threatening human lives.' The fact remains, however, that the Geneva Conventions signed and ratified by the US prohibit torture of prisoners of war even if obtaining information can save lives.

The evidence that torture had in fact been used in US prisons has steadily built up revulsion in the public mind regarding the USA's counter terror strategy and its unscrupulous conduct. This, however, has been delayed because its victims have only been a much-maligned 'alien' group of Arab-Muslims Americans do not identify with. US Courts have, finally, looked into the matter and have ordered accounting for detainees held without judicial review. Courts have also ordered that deportation hearings must be made public and families of detainees given information of it. The American Bar Association has condemned changes made to immigration laws to legalize the 'incommunicado detention of immigrants in undisclosed locations.' Recently, in the middle of this month (June 2008), the US Supreme Court ruled that detainees on terror charges must be given the right to seek access to lawyers and that their trials must be conducted by mainstream civil courts. This is a heartening development, although it has met with whimpers of disapproval from the White House.

The loss of civil liberties and undermining of the supremacy of law in post 9/11 USA has done great damage to America's democratic tradition. The US Senate stated: "Unjustified investigations of political expression and dissent can have a debilitating effect upon our political system. When people see that this can happen, they become wary of associating with groups that disagree with the government and more wary of what they say and write. The impact is to undermine the effectiveness of popular self-government. If the people are inhibited in expressing their views, a nation's government becomes increasingly divorced from the will of its citizens."

Steven C Welsh writes: "Regarding Abu Ghraib there are, of course, the questions of criminal culpability, and how far up the chain of command it is imposed, as well as questions of command responsibility and accountability for problems that resulted, as U.S. Secretary of Defense Donald Rumsfeld acknowledged, "on my watch." At the same time, under the Geneva Convention it is the United States as a nation which must confront its responsibility for the actions of the men and women representing it in Abu Ghraib prison.

Beyond the sheer inhumanity of the atrocities, with respect to the Geneva Conventions, there also has been on the part of the perpetrators and their command structure, an apparent ignorance, a lack of basic knowledge, of the Geneva Conventions and related U.S. military regulations. Given the explicit requirements of the Geneva Convention to instill its principles in essentially all military personnel, as well as the general population of the United States, one might be led to ask just how well the United States has honored that mandate."


Abu Ghraib came and went. Yet it has left ugly, deep scars reaffirming the image of the US as a state not befitting of its gigantic role in world politics. With leadership comes responsibility. Abu Ghraib taught us that the saviours were no better than the 'terrorists' they fought. Perhaps uglier still, behaving in grotesque ways behind the façade of a superior civilization.

The law of command responsibility as well as unequivocal evidence clearly establishes the complicity and connivance of some of the bigwigs in the highest echelons of US policy making. The gaping black hole of moral depravity at the heart of the War on Terror stands exposed.

It has also brought in its wake some painful realizations_ of the fragility of international law to stay the oppressor's hand, when the oppressor happens to be a heavyweight on the world scene. The audacity with which the conduct of US policy flies in the face of Geneva Conventions and Human Rights legislation poses some serious questions about the efficacy of law.

The exposure of rampant, inhuman prison abuse under the nose of the world's greatest democracy at pains to usher in a 'New World Order' has exposed America's feet of clay. It takes away all bases of moral leadership from under its feet, and breaks the myth of a 'superior civilization', fed on which the world lets the fiction of good guys heroically saving the world from the evil guys_ brown-skinned, Arabic speaking_ go on duping them.

The adoption of the Utilitarian amoral ethic by America has taken its toll. It negates the fact that morality has to be the basis for conducting politics. The criterion for legislation no more remains the universal human ethic but 'utility' and 'interest': "the best is that which is useful." Nothing holds_ but, 'What We say, goes', as the American President so honestly observed. Morally unjustifiable warfare becomes necessity for making the Superpower 'stronger, safer, better', in order to be the fittest one around in the forest.