THE ATTACKS OF SEPT, 11, 2001, have thrust the United States into a new position in international law and politics. Most nation-states, America included, are accustomed to fighting adversaries with defined borders and armed forces. It is easy to define the enemy when it is another nation-state. Transnational terrorism, however, presents a new type of enemy – one without borders or homogeneous ethnicity. How to fight such an enemy, one that has already shown itself capable of attacking America from within, has proved to be a difficult challenge.
In response, the United States has embarked on heretofore uncharted territory. It has set up secret prisons across the world where the CIA is able to interrogate suspected terrorists with techniques tantamount to torture. ‘ In addition, it has sought to prevent those detained in these prisons from revealing in federal court the “alternative interrogation methods” to which they were subjected.2 The United States has abducted individuals suspected of terrorist activity and transferred them for interrogation to countries where it is widely believed they will be tortured.5 It has held several hundred people without charging them or granting them access to legal counsel in a detention camp in Guantanamo Bay, Cuba, where they await trial by military commissions. It has invaded two countries purportedly to pursue the terrorist enemy, leading to the deaths of hundreds of thousands of innocent civilians.
Domestically, there is a vigorous debate over how to handle detainees in the “war on terror.” Already, the United States has declared its own citizens as “enemy combatants,” holding them indefinitely and without access to counsel or due process. Such actions were struck down by the United States Supreme Court as unconstitutional.4 Yet, the Bush administration remained undeterred. In response to another rebuke by the Supreme Court 5 over the unilateral establishment of a military commission to try terrorism suspects, the administration struck a compromise with Congress and passed the Military Commissions Act of 2006 (MCA), which President Bush signed into law Oct. 17.6
The American Civil Liberties Union decried the bill as “one of the worst civil liberties measures ever enacted in American history.”7 Human Rights Watch issued a detailed Q&A on the MCA,8 highlighting what it considers to be unjust. It cited as particularly troubling the overly broad definition of “unlawful enemy combatant” and the barring of detainees from filing suits via the writ of habeas corpus. According to the HRW statement, “Because numerous provisions of the MCA run counter to the protection of human rights, Human Rights Watch believes the legislation should be amended or repealed.”9
Passage of the bill was criticized domestically and internationally, and I fear that it further tarnishes the United States’ already tattered image around the world. I fear that the country has lost its credibility when it calls for justice and democracy. Yet, did it have to come to this? Is there another way in the fight against terrorism? Does the United States have to fight and prosecute terrorists who hatch, plan and plot against it? Can the United States chart a new course in its war?
I believe that it can. I am not advocating that America give up the fight against those who would harm its citizens or interests. One ofthe most important rights of any nation is the right to protect itself. No elected (or non-elected) government could or should ever shirk this tremendous responsibility. What I advocate, however, is a completely different strategy than the one adopted by the Bush administration.
First, the fight against terrorism is not a military one: the disastrous war in Iraq – the much touted “central front” in the “war on terrorism” – has made that painfully obvious. In fact, the vast discontent with this war has led to a political earthquake in Washington, DC, with the Democrats gaining control of both houses of Congress and the resignation of Donald H. Rumsfeld as Defense Secretary. Moreover, the National Intelligence Estímate prepared in April 2006 found that the American invasion increased, rather than decreased, the threat of terrorism against the U.S. since 9/ 1 1 .10 The fight against terrorism is a law-enforcement operation, as evidenced by the recent disruption by British authorities of a plot to blow up trans-Atlantic U.S. airliners. Thus, America should re-invigorate its intelligence gathering activities against terrorist groups, which includes getting “boots on the ground” to infiltrate these groups and disrupt their activities from within, rather than bombing entire villages where a few terrorists may be hiding. This would be far more effective and would not create more terrorists in the process.
Second, it is inevitable that suspects will be rounded up in the “war on terror.” The question remains what to do with them. The current strategy of detain, interrogate (and torture), hold indefinitely and try by military commission has led America to seriously deviate from the letter and spirit of international human rights laws as well as betray its own principles and values. Why shoulder this burden alone? Terrorism is not a crime against just America. It is a crime against all of humanity, and a terrorist attack against one nation should be construed as an attack against every nation.
As such, America should include all nations in the prosecution of terrorism suspects. A special International Criminal Court (ICC) should be set up for the exclusive detention, interrogation and prosecution of those suspects. It can be under the auspices ofthe current ICC, to which the United States, unfortunately, is not a signatory.
Once terrorism suspects are apprehended, they should be turned over to this new ICC for prosecution. American intelligence agents would be allowed to interrogate them for vital information, but the process would be observed by human rights monitors so the detainees’ rights are not abused. The monitors could then certify that information was not extracted via coercion, and therefore valid as evidence in the detainees’ future trials.
The same ICC should also try the suspects for crimes against humanity and punish them accordingly. It has become painfully obvious diat America does not know how to prosecute terrorists without trampling hard-won principles of international human rights laws, such as the Geneva Conventions. Why not delegate this responsibility to those who do? This process is already in place for war criminals such as Radovan Karadzic, Ratko Mladic, Charles Taylor and others. Are Osama bin Laden, Ayman al-Zawahiri or Khalid Sheikh Mohammed any less horrific war criminals?
With this new system, there would be no need to stain the national fabric with Guantanamo Bay or the indefinite detention of “unlawful enemy combatants” or the setting up of military commissions in contravention of international laws. With a new ICC, the burden of fighting and prosecuting violent terrorists will not fall solely on America. It will also go a long way toward restoring the reputation ofthe United States.
It is a radical shift in philosophy and tactics. Yet, I believe that it is a welcome shift with benefits for all countries, not just the United States. Human rights are too precious to be abandoned because America was attacked by 19 fanatics. Adherence to international laws is too vital to be bypassed because America has had to face the ugly reality of terrorism. Upholding the Geneva Conventions is too important an obligation to be set aside because we face “a different type of enemy.”
We can successfuUy wage a war on terrorism without betraying our principles and values as a people. We can defeat terrorists and simultaneously win the hearts and minds of the world. We can isolate the ideology of hatred and brutal fanaticism without creating more brutal fanatics. It just needs a dramatic and long overdue rethinking of our strategy in the “war on terror.” Our nation’s interests and security hang in the balance. “Staying the course” is something we simply cannot afford to do.