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Terrorism

War and Fear: Unfortunate Choices

by Richard Allan

Two years ago in Brussels I attended what was an impressively large international conference whose broad topics examined the multiple of issues that are created by acts of terrorism. The topics included the effects of terrorism on transportation, agriculture, communications, cross-border cooperation, and on and on. The vast majority of attendees were European and the conference showcased panelists who were either technocrats or fairly high-level governmental officials. Few of them were Americans.

The night before the conference officially opened, I was invited to dinner at the home of a European ambassador. I could not fathom why the invitation was extended to me, until the verbal attacks against the United States by almost all of the non-American guests began and continued beyond dinner and unabated through the three conference days. At the dinner, the former president of a Scandinavian country asked me why America would, “in the name of international legal sanity,” describe its challenge to combat terrorism as a war on terrorism. Frankly, as I will explain, I had no answer, for I agreed with his assessment. During the conference there was a steady barrage of attacks and complaints from the podium that the Americans had made a tremendous mistake in declaring or creating a war on terrorism with its legal consequences which, in turn, they believed hindered the ongoing attempts to harness and prevent terrorism.

Their viewpoint is predicated on several “givens”: Europeans understand the legal nature of war since they had their homeland physically engulfed by more than one war. That international law forbids a pre-emptive strike unless it is clearly authorized in advance by the UN Security Council. That was not in issue subsequent to 9/11. In addition, notwithstanding our membership in the UN, the U.S. steadfastly maintains, in its National Security Strategy, the right of first strike as part of its war on terror. This, too, was not an issue after 9/11. But once the initial shock of 9/11 subsided, and with the agreement that the al-Qaeda terrorist group clearly used a type of armed attack in Washington and New York City, there can be no argument that the U.S. was not justified in employing an appropriate non-diplomatic response. But assuming that the initial response by the United States after 9/11 was appropriate to the magnitude of al-Qaeda’s attack, should or could the U.S. then take the international legal position that the illegal attack by this particular enemy created a state of war? That is, a war of terrorism as distinguished from, for example, launching a criminal investigation of enormous proportions. The newly elected Prime Minister in London clearly understands the distinction.¹

The Geneva Convention clearly holds that persons who are captured during a war are to be held only until the war ends, and then must be exchanged for one’s own POWs. The present United States administration contemplates its war on terrorism as an ongoing assault against the violence of terrorism in general, wherever it might arise, without any vision of when the war would or could end, or how there could be the execution/formality of a peace treaty at its conclusion, or with whom it might enter any such treaty.²

As part of this Administration’s war on terrorism and despite the fact that a 1978 statute makes it a felony to conduct a warrantless communications surveillance, the president’s legal advisors secretly determined that his wartime powers include an unwritten right to bypass such laws at his own discretion. Compounding this false premise and exacerbating the legal impact in the use of the term war, the accepted international actions of a nation at war does not permit the type of questioning, physical isolation, or suspension of national or international laws for those captured on foreign soil but held by the U.S. at jails in Cuba, Iraq and Pakistan, all in the name of the war on terror. And compounding the problem further, the government, by suspension of prisoners’ legal rights, claimed its action was vital to our own national security. Either those captured are guilty of a crime (local, national or international) or they are prisoners of war. In either case, there are clear historic rules of procedure not to be ignored for a multiple of reasons. But the argument does not stop there and becomes more complex by this Administration’s introduction of a new legal concept: enemy combatant. In February 2007, the U.S. Circuit Court of Appeals for the District of Columbia upheld a key provision of a law the Bush administration pushed through Congress in 2006 stripping federal courts of their ability to hear the detainees’ challenges to their confinement. The federal courts have repeatedly stated that the review of battlefield captures in overseas conflicts is a highly deferential one. The appeals court, adopting the government’s contention, found them to be enemy combatants, confusing the issue of POW status and leaving them without any of the legal rights accorded prisoners of war. The General Counsel of the Department of Defense has stated:

Enemy combatant is a general category that subsumes two sub-categories: lawful and unlawful combatants. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state terrorist group that does not receive the protections of the Third Geneva Convention.

After years of waffling, the Supreme Court finally rejected the Bush administration arguments, reversed course, and agreed in June 2007 to review (this is not a final determination) whether Guantanamo Bay detainees are unlawful combatants and can challenge their indefinite confinement.³

In the long run, presently only being partly recognized –slowly to be sure—is that not only the general public’s use, but the government’s embrace of the term war, while ignoring its legal definition, has created more problems than it has solved other than initially creating an emotional and psychological rallying point to maintain the American people’s support of the U.S. government’s international political agenda.

Thinking that the international furor over the use of the term war had somewhat evaporated in the recent past, I learned to my surprise, at a conference at the EastWest Institute in New York City in June of 2007, that the Europeans were still complaining that the American use of the term war is a hindrance to international cooperation in its interdiction and prosecution of terrorism. Not only that, but it appears that with all the continued, and sometimes escalating, hype in the U.S. government’s use of language to describe what it deems it has learned regarding terrorism, how it is attempting to interdict acts of violence, what other governments are or are not doing has created, one might claim, an intentional desire to generate fear within the general population beyond what would be a balanced and reasonable approach in the tone and language in describing an event revealed and scrutinized.

The use of fear as a weapon, beyond its exploitation initially by the terrorist, since time immemorial, has become an intentional weapon which exists in multiple forms. We can all remember the very vivid pictures of hijacking of American airplanes, the parading of hostages and the gruesome murder of an American sailor dumped on the tarmac from the rear of a parked hijacked plane. The second type of fear is created by our own government when it announces in exaggerated terms, to its own citizens, that other nations are neither enforcing their own laws regarding the proliferation of terrorist activities or are so lenient that terrorists have a haven which could be used to affect the welfare of American citizens at home and abroad. And last, what must be cited is the fear generated when our own government creates bouncing color codes for danger levels, announces investigations as if there was imminent danger, and continually uses language that can only heighten individual and collective fear. “We live in dangerous times…. the potential for nuclear terrorism. The specter of a mushroom cloud over a city or the casualties and chaos from explosion of a radioactive dispersal device…..” U.S. Assistant Secretary of State John C. Rood, USINFO.State.gov, June 22, 2007. “It just goes to show the war on these extremists goes on,” President Bush said two days after the attempted car bombings in London and Glasgow. “You never know where they might strike.”⁴

We are a nation incessantly bombarded and torn by the words and images of war & fear. My apprehension is that our sensibilities have become increasingly anesthetized instead of heightened by the continuous attacks on our receptiveness to events. Although it maybe unfair to contrast the general population’s open and impassioned national debate for and against immigration reform, we, as a nation have an endemic aversion to facing and discussing, in a rational way, the serious national issues of extended security and their very important and overarching consequences unless and until a cataclysmic event captures our personal attention. Our aversion as a nation to face these issues has created our present conundrum which places us in a dangerous and extended lull in a balanced enhancement of our security. On the one hand, there are those who demand that those who oversee our safety provide immediate, expeditious and readily understood answers to our well being. Objecting to that carte blanche approach are those who more often than not, without any counter proposal, oppose most legislation to extend the county’s security tools as moving toward unacceptable rules that will overwhelm our individual rights. The results are that we either rush to security legislation without careful consideration or appropriate analysis or the process stalls and nothing is accomplished. But in both scenarios, we increase the fear ratio in a war with a decreasing number of national and international allies.

Notes

1. “When terrorists tried to blow up civilians in London and Glasgow, Gordon Brown, the new British prime minister, responded in his own distinctive way. What had just been narrowly averted, he said, was not a new jihadist act of war but instead a criminal act. As if to underscore the point, Brown instructed his ministers that the phrase “war on terror” was no longer to be used and, indeed, that officials were no longer even to employ the word “Muslim” in connection with the terrorism crisis. In remarks to reporters, Brown’s new home secretary, Jacqui Smith, articulated the basic message. ‘Let us be clear,’ she said, ‘Terrorists are criminals, whose victims come from all walks of life, communities and religions.’” David Rieff, New York Times, July 22, 2007.

In examining the operations of the NYPD and the LAPD, Judith Miller wrote in the City Journal, Summer 2007, in an article entitled: On the Front Line in the War on Terrorism ‘Despite their differences, both the NYPD and the LAPD agree that a key way to crush incipient terrorisst cells and thwart terrorism is to use local laws and follow locally generated leads, which, after all, is what good police departments do best. (emphasis added) Relying on this low-key approach.... the LAPD has arrested some 200 American citizens and foreigners with suspected ties to terrorist groups since September 11.”

2. “The war on terrorism will last for 20 to 30 years and be fought beyond Afghanistan and Iraq, the head of the U.S. Joint Chiefs of Staff said, as a second U.S. general called for more troops to fight the Taliban” Michael Heath, July 19,2007, Bloomberg.com.

3. The U.S. Court of Appeals for the District of Columbia Circuit in July 2007, rejected the Bush administration’s plan to limit what judges and the detainees’ attorneys can review when considering whether the Combatant Status Review Tribunals acted appropriately.When Guantanamo Bay detainees challenge their status as “enemy combatants,” judges must review all the evidence, not just what the military chooses, “Counsel for a detainee has a ‘need to know’ the classified information relating to his client’s case,” the appeals court ruled. It went on to hold that the government may withhold certain highly sensitive information from defense counsel, but not from the court.

4. For an excellent article discussing the “stirring up (of) terror night mares at politically opportune times” is Frank Rich’s article in the New York Times, page 11, August 12,2007.