December 1, 2002
With Responses From
Dec 1, 2002
5 Min read time
Do you feel any safer today than you did those first days after September 11, 2001, when the United States committed to protecting itself against terrorism? Although we may not feel much change, the truth is that we have made tremendous progress, from fighting a military campaign in Afghanistan, to strengthening cooperation with our allies (and even enemies) to stymie terrorist funding, to increasing diplomatic efforts that keep a tenuous worldwide coalition alive. It is not a perfect “war,” a word too broad to describe what it takes to stop terror, but our progress has put a significant dent in undermining the infrastructure, the financing, and the training camps of adversaries committed to violence against innocent civilians.
Where we haven’t been so successful, however, is in guiding law enforcement in the United States to assist instead of hinder counterterrorism efforts. The problem isn’t only, as David Cole so dramatically points out in his article, that we have too easily given up the rights of others in order to stop the enemy. As Cole rightly acknowledges, that philosophy may easily be turned on its head, targeting first those who seem to be outsiders (a term used to describe the nineteen hijackers on September 11) but ultimately harming American citizens. Indeed, that turn has been implemented quickly, as the alleged snipers in the Washington, D.C., area are being indicted under a broad Virginia antiterrorism law passed in the wake of September 11.
Even if we were to assume that some rights (of some people) need to be curtailed in the name of national security, we give too much credit to the government’s current law enforcement campaign to reach even the stage of that proverbial balancing act. It seems, at least with regard to finding and convicting terrorists, that the government’s actions are more desperate than deliberate.
Let’s take, for example, the now-infamous proposal to interview first five thousand but ultimately ten thousand immigrants from Arab states, whom the government hoped might know something about terrorists. If the government actually believed that these interviews would assist in its efforts, a public pronouncement stating so would seem to tip the government’s hand prematurely. Indeed, for a government unwilling to disclose the names of people it is detaining under the theory that the information might assist terrorists, certainly such interviews of men capable of harm (the interviewees, unlike the detainees, were not incarcerated) might prove even more dangerous. The interviews, as most law enforcement agents recognized, proved futile, a waste of resources, and dramatically undermined any cooperation the government had with Arab and Muslim communities.
If the interviews were less than efficacious, what then does it take to catch a terrorist? Fortunately, we have some examples of successful cases that are commonly overlooked in our post–9/11 haste. Successful preemption and prevention of terrorist attacks requires tedious investigation, surveillance, quiet cooperation, and smart lawyering—techniques that do not particularly lend themselves to press conferences. Instead, the government has favored the “big gesture” at the expense of serious strategic thinking about how lawyers fit into the battle against terror.
To illustrate, within a single week in September 2002 the United States arrested six terrorist suspects in Portland, Oregon; John Walker Lindh, the “American Taliban,” was sentenced to twenty years; and Richard Reid, the “shoe bomber,” pled guilty to charges that he trained with al Qaeda and sought to kill Americans. It was, as Attorney General John Ashcroft heralded, a “defining day in America’s war against terrorism.”
Let’s hope not.
As a nation, we would be exceptionally fortunate if the threat were as seemingly naive as John Walker Lindh, who, if his post-plea statements are to be believed, lacked knowledge of the Taliban’s relationship with al Qaeda (and even of the Taliban’s well-known opinions on women). We would also be privileged if terrorists were as incompetent as Richard Reid, who could not light his shoe because his matches were wet.
The government is correct in reminding us that the terrorist threat is continually present and evolving, that future attacks will likely occur, and that every effort should be made to disrupt terrorist groups. Logic, history, and recent events such as the Bali bombing suggest that al Qaeda has not been entirely subdued, despite our efforts in Afghanistan and elsewhere. What is inconsistent, however, is the misrepresentation that the kinds of people we have arrested (let alone the people we have detained) are pivotal in this serious and grave war on terrorism. This is a big war, and thus far we have, at least here in America, mostly captured little fish.
While there are benefits to prosecuting the “little fish,” the reality is that they are inconsequential in the true, long-term battle against terrorism. The government’s enthusiasm to lodge the greatest charges against the weakest links has thwarted it from obtaining critical information from those who actually possess this intelligence. As Seymour Hersh points out in the New Yorker, not a single government official has attempted plea discussions with alleged twentieth hijacker Zacarias Moussaoui, a case that will likely be a difficult one for the government to prove. Richard Reid, on the other hand, pled guilty without any government prodding. The government risks losing valuable information (such as who helped Reid acquire such sophisticated weapons or how Jose Padilla ended up training in Afghanistan) in its pursuit of the easily acquired verdict.
There is a serious ongoing debate regarding how large the terrorist threat is; how many men trained in Afghanistan; and the size and scope of the terrorist presence in the United States. Disrupting terrorist cells is an important component of the government’s overall counterterrorism efforts. Arab and Muslim communities, already significantly antagonized by some law enforcement efforts, will likely suffer the brunt of further investigation and surveillance. But the government’s efforts would surely seem less intrusive if law enforcement enabled serious arrests, arrests that represent the core of the threat, not ones tailored for press conferences.
The truth is that much of what the government trumpets is simply confusing activity masked as progress. Many of these heralded detentions, interviews, arrests, or captures are of characters that make us seem invincible in this war on terror. We should be so lucky. As we should have learned on September 11, we are not.
It is an interesting debate to examine what civil liberties might need to be curtailed in the name of national security. Many, on a bad day, would purchase security at the expense of civil liberties, especially if the rights belonged to someone else. But, we—at least for now—aren’t purchasing anything close to security. We are safer, yes, despite and not because of many of our law enforcement efforts at home.
While we have you...
...we need your help. While reading Civil Liberties after 9/11 by Juliette Kayyem, you might have noticed the absence of paywalls at Boston Review. We are committed to staying free for all our readers. We've also gone one step further and become completely ad-free. This means you will always be able to read us without roadblocks or barriers to entry. It also means that we rely on you, our readers, for support. If you like what you read here, pledge your support to keep it free for everyone by making a tax-deductible donation.