By the end of 90-minutes of chin-wagging about the ethical dilemmas in “winning the war on terror” the gathering was left with an unnerving thought: it is impossible to say what victory in this war will look like. To win a war, and not know you have won, rather takes a lot of stuffing out of it.
It was a well-credentialed group that set-to on the topic at the NY Public Library:
- Bradford A. Berenson, who had been associate counsel to George W. Bush and worked on a number of terror related legal issues for the administration, including the Patriot Act, detainee litigation, military commissions and the creation of the Department of Homeland Security. In other words, Brad-Baby was in it up to his armpits. He’s now in private practice in Washington DC.
- Deborah Pearlstein occupied the corner opposite Bradford. She is the director of the law and security program at Human Rights First, whose brief includes US detention and intelligence operations, executive power and the role of the courts. She’s also a visiting scholar at Princeton University’s Woodrow Wilson School of Public and International Affairs. In an earlier time she clerked for Supremo John Paul Stevens.
- Michael Scheuer worked for the CIA for 22 years. He was the head of Alec Station, a unit within the CIA’s counter terrorism centre dedicated to tracking Osama bin Laden. He is the author of Imperial Hubris: Why the West is Losing the War on Terror and Through Our Enemies Eyes. Both originally published anonymously.
- Ali Soufan was the chief FBI officer investigating the USS Cole bombing and discovered evidence of Al Qaeda activity inside the United States well before September 11, 2001. He is now director of international operations for Guiliani Security and Safety.
The discussion was moderated by Jane Meyer, the New Yorker staff writer who broke the story about CIA renditions, and who has written about Guantanamo Bay and profiled David Addington, the “legal mind” behind the administration’s war on terror.
Bradford Berenson, with his oiled hair and preppy Brooks Bros look, set the bar high right from the start.
This war on terror is every bit as grave as the treat to the nation posed by the civil war, he said. In fact, it is worse because if a major US city was destroyed by a dirty nuclear weapon that would be equivalent to the sacking of Rome by the barbarians, which ushered in the 1,000-year long Dark Ages.
Because a new Dark Age could be just around the corner it was vital that the US had a role in securing the old Soviet nuclear arsenal.
Berenson said it was not the administration’s view that it had violated the Constitution (whatever the Supreme Court may think). He insisted that there had been a “scrupulous effort to adhere to the law”. This surprised many of the festival-goers.
“It’s a question of what the law is,” he said over audible moans.
“The law is radically different for enemy combatants. They have no rights. The Constitution is not available to those trying to tear it up.”
That idea seemed to side-step whether detainees had been correctly classified as “enemy combatants”, let alone how the accusations against them can properly be tested – short of just locking them up forever, uncharged.
Military commissions, too, were not a radical invention. They’d been used in earlier combats, so there should be no surprise there.
Despite these best laid plans, Berenson didn’t think the anti-terror strategy of the administration was travelling well.
Deborah Pearlstein might have put her finger on why that was so. She said that the assumption that the Constitution is somehow less applicable in wartime is incorrect.
The Supreme Court had ruled that President Lincoln was out of bounds to suspend habeas corpus and to detain prisoners indefinitely.
The mantra of the current administration is that law should fall silent in times of war. Pearlstein said this is a perversion of the original maxim, which came from Cicero’s Pro Milone: “inter arma enim silent leges” or “in the face of arms, the law falls mute”.
It arose from Cicero’s defence to the Senate of Titus Annius Milo, who was on trial for slaying his political rival, Publicus Clodius Pulcher.
Milo’s defence was that Publicus was planning to knock him off first, and Cicero argued that laws should not be strictly observed when a person’s life is threatened.
This was echoed, down the centuries, until former SCOTUS CJ, William Hubbs Rehnquist, came up with a modified version in All the Laws But One, that:
“The laws will thus not remain silent in time of war, but they will speak with a different voice.”
This is not quite the same as Dick Cheney’s idea that in war time there is no law.
The notion is doubly hairy when you consider that, despite the best endeavours of the US, the international laws of armed conflict do apply.
Pearlstein explained all this pretty comprehensively. Essentially the administration is saying that if liberties are taken away the nation will be more secure. Yet the index of insecurity has steadily climbed as the government has pursued “coercive” interrogations, targeted assassinations, renditions, suspension of Geneva Conventions and habeas corpus.
Throughout it all “the US has lost the moral high ground”.
Much of the US response to its predicament has been pointless, if not counterproductive. Pearlstein save an illustration: immediately after 9/11 thousands and thousands of Muslim non-citizens in the US were rounded-up for interrogation.
Five years later there has still not been one prosecution arising from that sweep.
Michael Scheuer, the former-CIA guy, was brutal. “We face a security threat because of what we do in the Middle East.
“The US is not the main enemy. The main enemy is Israel, but the only glue the enemy has is a common hatred of US foreign policy.”
Somehow, the anger has to be deflected back to where it belongs – the Middle East.
Further, that threat has grown since 9/11. As Scheuer put it: “You ain’t seen nothing yet.”
There can be no rational response to a nuclear device being set off in Houston by terrorists, the scenario put by Brad Berenson.
Scheuer said that a great power like the US had not been in this position before. The response requires a much more concerted effort because, clearly, the United States is losing.
He added that the CIA had used the techniques in the field that had led to a lot of criticism, “because we were told to use them”. He had no objection to what was done as long as they were within the laws of the land – which begged the question: who’s land, who’s laws?
He thought that the US “doesn’t have much of a product to sell at the moment”, and for good measure he added there was a, “Criminal level of moral cowardice in the government’s leadership”.
Ali Soufan, who has worked extensively in the Middle East, and speaks Arabic, said that the US was facing a “dangerous enemy” and many of them felt it their duty to destroy US citizens.
Sometimes when Soufan interviewed detainees at Guantanamo and elsewhere “they initially wanted to slaughter you like a sheep. By the end they were hugging and kissing us.”
On occasions when Miranda rights were read to prisoners, “they got scared”.
Nonetheless, he thought that Guantanamo Bay is “full of very bad people who would not hesitate to kill us”.
The Arab street is now much more radicalised than it was five years ago and incredibly “we still don’t know the nature of the enemy”.
What was certain was that the US policy of capture and kill was not working. The enemy had changed but the US strategy had not. It was now more essential than ever “to get people in the Middle East behind us and not just do the shooting”.
The attempt to reach out through an American controlled Arab TV network was just “hopeless”. Everyone just wanted to watch Al-Jazeera.
“The US has made the terrorists look respectable to the average uneducated Muslim. Everone hates Americans, even New Yorkers.”