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The wrong way to combat terrorism

Sadakat Kadri
2 May 2006

In the days after 11 September 2001, the world was as united as it had been for half a century. The North Atlantic Treaty Organisation, the United Nations Security Council and the European Union each called for the perpetrators of the attacks on New York and Washington to be brought to justice; and when Afghanistan's Taliban government refused to hand over al-Qaida leader Osama bin Laden, who was believed to be hiding in the country, a multinational army overthrew it by force.

The meaning of "justice" became increasingly elusive, however. Two very different visions, one militaristic and the other law-based, have since come to shape the world's anti-terrorism efforts.

The United States president, George W Bush, set the tone for the first approach six days after the attacks, when he recalled that outlaws sought in the days of the American wild west were "wanted, dead or alive". On the same day, 17 September, he secretly authorised the Central Intelligence Agency to capture or kill al-Qaida sympathisers anywhere in the world, and to establish "black sites" – offshore prisons where American laws relating to detention and interrogation would not apply.

That was complemented in public two months later by the creation of military tribunals that could potentially order the execution of any foreigner deemed actively hostile to the United States. "The mass murder of Americans by terrorists, or the planning thereof, is not just another item on the criminal docket", warned vice-president Dick Cheney. "This is a war against terrorism."

Sadakat Kadri is a lawyer and writer whose work is published in journals, broadsheets, textbooks and collections of legal essays. He is the author of The Trial: A History from Socrates to O.J. Simpson (HarperCollins, 2005)

Such measures heralded a strategy. Prison camps such as Guantánamo Bay were created to circumvent federal law and the Geneva Conventions, while the CIA began outsourcing interrogations to countries with dismal human rights records, including Egypt, Jordan and Syria. The precise numbers subjected to the latter process, termed "extraordinary rendition", are unknown, but a recent EU investigation discovered some one-thousand CIA flights that crossed Europe unrecorded, in possible violation of regular extradition procedures and the UN Convention against Torture.

Bush, meanwhile, claimed that his judicial powers extended beyond foreigners to US citizens – and even to people already charged before ordinary courts. Pentagon lawyer William J Haynes II made clear that they could still hope for vindication – but would be unwise to count on it. "If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted … but may not necessarily automatically be released," he asserted at a press briefing on 21 March 2002. Referring to the "war on terror", Haynes added: "We are within our rights and … may hold enemy combatants for the duration of the conflict."

Such ideas drew on the experience of Israel – which had attempted to sideline the Geneva Conventions in April 2000 with a law on the imprisonment of illegal combatants – but won few hearts and minds elsewhere. Even prime minister Tony Blair's government in Britain, yoked to Bush's in so many other ways, baulked. The only British cabinet member ever to have uttered the phrase "war on terror" in parliament was former home secretary David Blunkett, and ministers never disavowed the Geneva Conventions. The situation at Guantánamo Bay has elicited repeated, if muted, criticism – while the official response to London's July 2005 bombings invariably characterised them as crimes to be prosecuted rather than battles in a global war.

Between war and law

These make for an important difference between American and British policy, but the dichotomy between war and law is far from straightforward. US justice department lawyers do not ignore the prohibition against torture; they have drafted voluminous dossiers to redefine it, and to argue that Bush can exceptionally authorise inhumane treatment. Nor have they denied the validity of the Geneva Conventions; instead, they have conjured into existence a category of "unlawful combatant", supposedly outside the conventions' scope. The legal inventions have not, admittedly, been accepted by any transnational body anywhere – but the claim remains that they reflect the true state of international law, and that it is the world's problem if it fails to recognise that.

To characterise the British government's stance as legalistic does a similar disservice to its subtleties, for it has tried assiduously to accommodate the war in domestic law. New extradition procedures allow the US to demand suspects without producing evidence – a favour which the US Congress has resolutely (and predictably) refused to reciprocate. It was proposed after the July bombings that police be empowered to question detained suspects for up to three months – not quite Guantánamo Bay, but a period within which confined prisoners-of-war would be entitled by the Geneva Conventions to be tried, not just charged.

The British government's genuflection to the "war on terror" became clearest when Home Office lawyers tried to persuade the law lords – Britain's court of last resort – in 2005 that statements extracted by torturers were legally unobjectionable. That argument, if successful, would have transformed Britain's courts into evidence-laundering facilities for the world's most brutal regimes.

In fact, the government's insistence that it is containing criminality appeals to an emotional sense of national identity just as much as does the bellicose vocabulary of the Bush administration. To characterise enemies as criminals denies them the martial honour supposedly proper to warriors. That reduces them to unhinged maniacs, and makes it almost unseemly to analyse the anger – over Iraq, say – that invariably underpins terrorist acts. A similar process saw several other British conflicts depoliticised, in name at least, during the twentieth-century – from the Malayan "emergency" to Northern Ireland's "troubles".

The British attitude springs ultimately from considerations of self-interest as shifting as those of the US. The terminology of war was avoided during Kenya's Mau Mau "uprising", specifically because the contrary course "might imply that [prisoners] had rights under international conventions" – a historical fact which Bush's lawyers might have done well to ponder; but at Britain's imperial zenith, judges played as fast and loose with formality as any modern Pentagon lawyer.

That is well illustrated by a 1907 case in which one Tilonko, convicted of sedition by a Natal (South Africa) military tribunal, appealed to the privy council on the ground that he ought instead to have been prosecuted in a civilian court. Lord Halsbury, swatting his application aside, thought it ludicrous to argue that suppression of a Zulu had to be lawful at all. "The right to administer force … depends [simply] upon the question whether there is war or not", he informed the hapless Tilonko. It was merely considered "convenient and decorous, from time to time, to authorise what are called 'courts' to administer punishments."

A watershed in the "war on terror"

Such emergency measures, whether labelled acts of war or law, are not inherently immoral. Internment, torture and drumhead tribunals (so-called kangaroo courts, or sham proceedings) all have utilitarian justifications. Although ethical problems await those who throttle and drown for the greater good – because the consequences are uncertain, to say the least – such folk are nothing if not righteous.

But though legalism has no monopoly over moral claims, it possesses something close when it comes to another quality valued by its critics – efficiency. For the Bush administration's resort to methods widely regarded as illegal has, unsurprisingly, caused legal problems. In June 2005, an Italian prosecutor issued arrest warrants against 22 US citizens who had allegedly kidnapped Egyptian cleric Osama Nasr as he strolled to Milan's mosque for noon prayers on 17 February 2003. European judges have regularly refused to extradite suspects to the US absent undertakings that they will not be sent to Guantánamo Bay. And the House of Lords's decision to disallow evidence that may have been obtained through torture means that British courts may henceforth thwart the supposed conveniences of the war on terror at any point.

The US refusal to play by global rules also has stymied the prosecutions of people that it would doubtless prefer behind bars. One was Mounir al-Motassadeq, a Moroccan who shared a Hamburg apartment with 9/11 hijacker Mohammad Atta during the summer of 2001. German authorities charged him as an accessory to the murders. The case collapsed, however, when the US refused them access to Ramzi bin al-Shibh, an alleged co-conspirator who disappeared into a "black site" shortly after his capture in Karachi in September 2002. Motassadeq was convicted only of membership of a terrorist organisation, while another of Atta's former flatmates, Abdelghani Mzoudi, won an outright acquittal.

There may well be sound reasons for nations collectively to re-evaluate treaties and customs in an era when they face people who organise across borders to maim and murder civilians. But given that the would-be killers often live in countries that observe the rule of law, a strategy that rests on circumventing rules is not just wrong in principle, but stupid in fact. It compromises both policing and prosecution – and until such day as the world's courts are finally abolished – it will in turn sabotage attempts to defang, confront or defeat the violent extremists on Islam's fringe.

The trajectory of the "war on terror" currently faces a watershed, for the US Supreme Court is preparing to issue a judgment on whether president Bush really enjoys a power of life and death over foreigners whom he deems enemies of the state. One of the many issues dividing the eight justices sitting in Hamdan v. United States is whether American courts should take account of international legal opinion, even in theory. At least three think not.

But just in case anyone cares, there is at least one non-American lawyer hoping for a majority that will lay the ground for a return to consensus-building, after the disastrous legal unilateralism of the last few years.

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