31 - 05 - 2004



- 15/3/2007

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How Not to Win the War on Terror

The KSM case points up whats wrong with the way the Bush administration fights terrorism. How the next president can do better.

By Michael Hirsh


Updated:  2:14 p.m. ET  March 15, 2007 

  March 15, 2007 - The abrupt reappearance of Khalid Shaikh Mohammed (KSM)and his brazen comparison of himself to George Washingtonfour years after the alleged 9/11 mastermind was captured in   Pakistan  should provoke some serious self-examination in the minds of Americans. The first question we need to ask ourselves is: does the Bush administration have any clue any longer how to fight the war on terror legally? The next question should be: cant our next president, whoever he or she turns out to be, do any better than this?

Lets hope so. Because if there is even a shadow of a doubt that the United States is losing the battle for hearts and minds to the self-confessed murderer of 3,000 peoplethat would be KSMthen something is very wrong. Lets get one thing straight: despite his touching claim that he doesnt like to kill kids, KSM is a very bad man. Most people frankly wouldnt have much of a problem if he were waterboarded or beaten to an inch of his life in a dark room somewherewhich is almost certainly what happened to him in one of the CIAs secret prisons.

But the fact that four years to the month after he was capturednear   Islamabad  in March 2003KSM is just beginning the process of being deemed an enemy combatant at the Combatant Status Review Tribunal Hearing at   Guantanamo  Bay  shows that something is indeed very wrong. The Bush administration has argued, with some legitimacy, that this is a new kind of war in which new rules are needed. Fair enough. But should it really require all this time, such a complicated series of court decisions and legislative maneuverings, to decide what those rules are?

The issue that the administration confronted after 9/11 was what to do with evil people like KSM. The Bush team decided that this was a war rather than a criminal matterand a war unlike any other. Therefore, none of the previous rules of war, like the Geneva Conventions protections, applied, in their view. That left culprits like KSM in a legal limbo for four years while they were ferried around to secret prisons, long after their intelligence value had been milked dry (a process that by the estimate of most interrogators should take no longer than a year). Even some CIA officials were privately upset by this, fearing that the agency would be the fall guy in the end (they were right). Wheres the off button? one retired CIA official said to me two years ago, in February 2005, before the military tribunals that KSM and others are being judged atat long lastwere created. Lawyers for the agency asked the White House for direction on how to dispose of these detainees back when they asked for [interrogation] guidance. The answer was, Well worry about that later. Now, we dont know what to do with these guys.

John Sifton of Human Rights Watch says the case of KSM and other key detaineesas well as some who are likely innocentshows that the Bush administration has simply never defined what kind of enemy KSM is. Sifton adds: This really is an example of how the war paradigm for counterterrorismthat it is only armed conflicthas backfired. Now we have a man comparing himself to George Washington. It might have been more appropriate to just call him a criminal and indict him in federal court, to say, Youre no warrior, youre no George Washington. You, sir, are a criminal'.

Scott Horton, another prominent human-rights attorney, agrees. Had the case been handled properly, KSMs confession to plotting 9/11 and many other actual or planned terror acts could have made him a showcase defendant for   America  s cause, rallying support and allies around the world. He could have been charged within six months of his detention and prosecuted in a proceeding, which would have added to the reputation of our country for justice, says Horton, and would have supported the righteousness of the cause of going after KSM.

Instead, the legal black hole is only getting deeper. The transcript released Wednesday night indicates that KSMs references to his previous treatment are all carefully redacted. Sifton and others say the redactions clearly indicate that KSM was referring to his secret interrogationsduring which he might well have been physically abused. The question of whether such dubiously extracted testimony could be used in any legal proceeding will probably prolong his case for years to come. (Once KSM is determined to be an enemy combatant, he is expected to be tried.)

Sifton notes, accurately, that the administration has been wildly inconsistent over the past six years. Some terror suspects are held without recourse to habeas corpus at Gitmo; others have been prosecuted in the   U.S.  courts. In one case involving a Pakistani father and son living in   New York  , Saifullah and Uzair Paracha, the two have been treated completely differently. The young Paracha is in federal prison. The older is at Gitmo, said Sifton. (The father, Saifullah, was arrested in Bangkok; his son in the United States, both on suspicion of agreeing to help an Al Qaeda operative sneak into the United States to carry out a chemical attack.) There are no principles guiding this. It would be fine if the war on terror were just a metaphor, but its not, says Sifton.

Now   America  finds itself with too few allies in fighting the war on terror, often reviled abroad for its inattention to its own standards of justice. Worse,   Washington  is sometimes identified with the terrorists themselves in the minds of some people around the world. Why? Perhaps KSM said it best in his broken English at his hearing. Same language you use, I use, he said. The Americans, he declared in his rambling statement, said every law, they have exceptions, this is your bad luck you been part of the exception of our laws But we are doing same language Never Islam give me green light to kill peoples. Killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exceptions of rule when you are killing people of   Iraq  .

Same language you use, I use. This, more than anything, is an indictment of the way the Bush administration has conducted this fight since 9/11. To paraphrase Thomas More in A Man for All Seasons, if we cut down all the laws to get at the devilas the administration has done against Al Qaedathen we will find ourselves without protection. This legal and conceptual void has cost   America  its high moral groundground that was so hard-won through so many honorably fought wars (with lonely exceptions like  My Lai ) during our history.

The Bush administration has maintained from the outset that it could give no quarter to the terrorists, and that unusual methods were required to extract information from suspects in order to pre-empt another attack. But now, by letting KSM and others remain in legal limbo and gradually expanding his definition of the war on terror to include all Islamic extremistsamong them Hezbollah and HamasPresident Bush may have condemned us to a permanent war. A war in which we are, again, waging an uncomfortably lonely fight, since almost no other country agrees on such a broadly defined enemy.

The next American president will be well advised to replace the war on terror with the kind of coordinated effort that the fight always should have entailed. In other words, the hunt for the culprits of 9/11 was never simply a war or a criminal manhunt. It was always both, a hybrid covert-war-and-criminal roundupone in which clear legal rules should have been set to brand terrorists like KSM as outlaws in the international system. The Geneva Conventions should have been applied; suspects should have had lawyers; cruel, inhuman and degrading treatment should have been expressly prohibited. Only if the next president sets the rules more clearly and does a better job of discriminating who the enemy is can we have any hope of winning.




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