Six Years After 9/11, Why We're Losing the War on Terror

By David Cole and Jules Lobel, The Nation. Posted September 11, 2007.

President 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 one (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 Administration's preventive paradigm, they produce a troubling form of anticipatory state violence -- undertaken before wrongdoing has actually occurred and often without 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.

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