Why America Is Losing the War on Terror

So please give a warm welcome to Jules Lobel. Thank you. Thank you very much for inviting me and thank you for that lovely introduction. I wanted to know how many of you have seen the Steven Spielberg's science fiction movie, "Minority Report" which came out a few years ago. Well for those of you have seen it; can you think of what the connection between that movie is and Bush's War on Terror? And for those of you who haven't seen it, which is I think the majority; let me tell you just about the plot. In Minority Report, the Justice Department has hit upon on way to solve and stop all crimes through the enslavement of psychic visionaries who can predict who is going to commit what crime and when? The Police can arrest the person and charge him with the crime that they would have committed in the future before they commit it. It's a perfect way to stop crime, except that as with most science fiction movies and as could be predicted, things go wry. Well, George Bush does not claim at least officially to have psychic powers, nor does he claims to have hired any psychic visionaries may be with the possible exception of Karl Rove. But in fighting its War on Terror, the administration has turned to a strategy a basic strategy which is very similar to the strategy in Minority Report; even though its not science fiction, it's real. Now that strategy, the administration has dubbed to be the "Preventive Paradigm", the idea being we have to go on the offensive, we can't play defense, we have to stop threats before they materialize and therefore we have to use highly coercive state power, locking people up, invading their privacy, tapping their phones, torturing them, invading other countries; not because of wrongdoing that they have already committed as the law usually requires, but because of either predictions, possibilities or suspicion that they will commit crimes or will commit terrorist acts or will help terrorists in the future. And this is in our view what is that the root in a way of the Bush "War on Terror", underneath the things that have gotten more attention, which is the executive lawlessness, the executive overreaching. Now in our book we we have three points which is going to be the three points to make them stop. One is to understand, explain, this preventive paradigm because unfortunately it's not just a paradigm which this administration has used, but it's often used in crisis. And the Clinton Administration relied it in somewhat, certainly the Roosevelt administration during World War II turned to preventive the preventive paradigm and preventively detaining hundred over 100,000 Japanese American Citizens. And our nation has resorted to this throughout war time and crisis. And I think we should understand that and and explain it. Second, if if this was a more this was radio talk show, I am sure I would get a call saying, "Are you just another one of these civil libertarians always talking about how the government is taking away our liberty? Well, we have been attacked. Terrorism is a real thing, we need security. And these government measures even if they are they are dangerous and unlawful, they have given us more security, they have made us safer." In fact Hillary Clinton on the campaign trail said, "We are safer today than before September 11th." And Rudy Giuliani says, "We have to keep on the offensive. These measures have made us safer; we have to keep doing it." So it's not just Bush and his psychic visionaries. But its Democratic politicians and other Republican politicians who say, "Well, we are safer because of these measures." Well my second point from here to talk to you about is that in fact not only are we not safer, but these measures have made us dramatically less safe. And I would like to go through some statistics and some understanding of what actually has been happening underneath some of the big headlines, to show why we are actually been we are less safe than we were even five or six years ago. And finally we third we are supportive of preventive detention. A good friend of mine who is a doctor is in the audience and we all support preventive medicine and we are supportive we support preventive measures to stop terrorism before it hits us; but not this kind of highly coercive preventive measures. And and I would like to present an alternative to what the administration is doing. Now let me start out with my first point and introduce you to the preventive paradigm through a client of mine; a man by the name of Maher Arar, who himself was introduced to the preventive paradigm on September 26th, 2002. Mr. Arar is a 35 year old Canadian citizen who was born in Syria. He has a wife, two children and he is a wireless technology consultant; works for a company in Montreal. He was on vacation and his company said, "We need you back". So he took a flight from Switzerland and he made what turned out to be a tragic mistake of changing of taking a connecting flight from JFK to Montreal. So he had to switch planes in Montreal in Kennedy Airport, New York. He didn't want to get into this country; just wanted to switch planes. When he got to JKF, the Immigration Services, they pulled him out of the line and said, "We have to question you about terrorism." They had to "and your connections to terrorism." They did this because the Canadian Royal Mounted Police had given them some kind of tip that Arar had, had some kind of acquaintance or meeting with somebody who they suspected was a terrorist. There was no hard evidence of anything, but that was the tip they gave him. Arar was concerned about whether he was going to make his flight. They said, "Don't worry about the flight", which was turned out to be the least of his worries. They kept him at JFK for two days. I think they only fed him in those two days the McDonald's happy meal or something like that, which didn't make him particularly happy. And the derpived him of sleep, interrogated him harshly. After two days, they took him to the Metropolitan Detention Center in Brooklyn, New York and kept them for two weeks interrogating him at length and not and kept him in solitary confinement. After two weeks, they told him "We are going to deport you". And he said, "Great, I never wanted to be here in the first place." And said, "Send me on my way to Canada. In fact, I still have my return ticket I am Canadian citizen". They said, "No, we are not going to send you to Canada, we are going to send you to Syria". And he said to them, "You know, if they send me to you send me to Syria, I will be tortured there". He is Syrian national because he was born in Syria. They misled his Attorney, who was family but he didn't show up in Canada, got for him, because his attorney had she known what was happening could have gone at the court to try to stop this. And they put him on and this was done not by lower level administration officials but by the acting Attorney General. This was at a time when Ashcroft was in the hospital. So Mr. Thompson who was the acting Attorney General signed the order send sending him to Syria. He was taken by Private CIA Jet, first to Washington, then to Jordan and dumped across the border in Syria. In Syria, he was put in what was known as the grave cell, which measured three feet by six feet by seven feet. Kept there for a year in Syrian Solitary Confinement. He was tortured brutally tortured for first month, being put in what was known as "the tire" which immobilized a person so that they can be beaten. He was beaten with electric cables; he was threatened with being subjected to electric shock. After a year, because of the intercession of the Canadian Embassy of who by the way the United States didn't tell they were going to do this to Mr. Arar, he was freed by Syria who said "We have no evidence that he is involved in any terrorism". The questions he was asked by the Syrians were identical to the questions that the US officials asked him; leading us to believe that the US officials gave the Syrians a dossier and this was all done in the cahoots with the US officials. When you got back to Canada, there was an up roar in Canada about this. The Canadians launched what turned out to be a two year high level commission which resulted in a report of about over a 1000 pages which conclude that Arar was totally innocent, had no connections whatsoever to terrorism, but he spend the year in Syria being tortured. And the reports said, because of the Canadians involvement which was fairly minor, but which set this whole train in motion, the Canadian government should issue an apology to Arar and pay him compensation which they now have done; to the tune of $11.5 million in Canadian money. Now, the two questions that this case rises, one is why would the United States send somebody, a Canadian citizen who they suspected of being involved with terrorism to Syria which is a rogue country according to President Bush, supporting terrorism, and not our ally in the war on terrorism and not to Canada which is our ally in the war on terror against terrorism. And there is only one possible explanation, that we can figure out anyway, which is that they wanted him to be tortured and to be detained, that they were looking they suspected that he was a terrorist, they were looking for information about future terrorist action, again this is preventive, they wanted him preventively detained. Canada told us that we have suspicions, but we are not going to detain him or put him under surveillance. They knew if they sent him to Canada he would not have had this experience. And they thought they could get valuable information out of him and they thought they could you know; put somebody who might be a terrorist away for a long time. It backfired on them. Arar was named, by the way in 2005 I think as Time Magazine in Canada's Man of the Year. And he has been on you know; CBS 60 Minutes, Nightline, etc. That's the first point. Why would they do this? If somebody can come up with a good answer for that other than the one that I have given you, I would be interested in hearing it. Second point is that this policy which is known as Extraordinary Rendition, which now a 160 people can subject to, including a German citizen who was ceased by the CIA in Macedonia and transported kidnapped-transported to Afghanistan where he was brutalized for four months by the CIA until they realized that they had taken him by mistake; that the reason that they took him was because his last name was the same as somebody else they were looking for, whose last name was the same but his first name was somewhat different. And they then dumped him back in Albania in the middle of Albania; again one of this CIA fights. This has happened to 160 people. The Clinton Administration and the first Bush Administration also followed a policy of Extraordinary Rendition, where they would kidnap people and sent them to other countries. But there it was different. It was illegal in my view and I criticized the Clinton Administration when they did it and wrote a brief against the Bush Administration when they did it. It was illegal; but it was for the purpose of taking people who are who had been indicted, who are under who, some other country felt had done something wrong and engaged in criminal acts; taking them and illegally or transporting them or kidnapping them to some place where they would face the trial, where they would face justice, where they would be prosecuted for their alleged crimes. The Bush Administration has totally turned this upside down. And instead of transporting people to face justice again illegally, they are illegally transporting people to get them out of the war, away from the war, not to get them in a situation where they can have a trial, but like in Arar's case, to get them where they can be preventively detained and tortured to get information to prevent future terrorist crimes. So it's now is part of this new preventive paradigm. Now the preventive all of the preventive measures, preventive detention, preventive rendition, preventive torture, preventive war; all of them have similar attributes. The first is that given that you are trying to do something in the future; about a future crime and given that we don't have psychic visionaries, it has to be based on suspicion and not objective evidence. So in Arar's case the Canadian government told the United States, while he was detained, that we don't have the evidence, we don't have any evidence, we have suspicions and we will follow that up. The INS Regional Director in concluding that Arar should be sent to Syria determined that he was clearly and unequivocally an Al Qaeda member. Okay, now that happened throughout. It's the exact same thing that happens to Iraq. In Iraq; the Bush Administration and many other people had suspicions that Iraq might have had weapons of mass destruction. And under International Law of course those suspicions were not enough. You can't attack another country, can't invade another country unless they have attacked you or eminently are going to attack you. And no one ever claimed that with Iraq. But if you read and we have done this and documented in this book, if you read what Cheney, Rumsfeld, Powell, Rice, Bush all said, they didn't say we have suspicions, they said we are certain that they have weapons of mass destruction. Rumsfeld said right before the invasion, "We know were the weapons are. Not only we are certain, we know were the weapons are." And it's not by accident and it's not necessarily that this was just bona fide lies it of course passed forward in problems that they just were lying. But it's part of this whole preventive paradigm of taking suspicion and making it into certainty; what a high administration official said it's the doctrine of actionable suspicion or Cheney said it's the One Percent Doctrine. We are one percent possibility that somebody is going to commit a terrorist act in the future; we should treat it as certain today and act on it as if it was certain. Just one other example; in the year after September 11 they locked up over 5000 aliens preventively for suspicion that they were terrorists. One of them was a man Ali Al-Maqtari. He was a Yemeni man who lived in Connecticut with his wife and right after September 11th he was transporting his wife to her military base, his American wife to her military base in Kentucky were she was a soldier and had been called up. While traveling through Kentucky he was arrested because of suspicious activity. The suspicious activity turned out that his wife was wearing a hijab, which is the shawl Muslim women wear, they had box cutters in their car which they used for their work and worst of all they were speaking a suspicious foreign language which turned out to be French. For this he was detained for two months; his wife was forced to quit the military with an honorable discharge and this happened to 100s of people. All based on the notion of preventing future terrorist acts by locking people up who were suspicious of, instead of waiting, as the law would normally require till they do something wrong or conspire to do something wrong or attempt to do something wrong. We have sued in the Arar case and the government's response in the Arar case in Arar situation and I represented Mr. Arar, we sued in Federal District Court. The government's response was very illustrative of this whole preventive paradigm. First thing they say in response is that Mr. Arar has no rights whatsoever. He has no constitutional right because he was first detained before he came into this country, before he was legally admitted to this country; so he was not a legal resident in the United States. And if you are not a legal resident in the United States or an American citizen, according to the Bush administration you have no rights. And therefore we can do whatever we want with you. This is the same argument they took to the with the Guantanamo citizens to at the Guantanamo prisoners; same thing they have done with torture in Iraq or in the CIA black sites all around the world. Anybody detained outside of this country has no rights unless they are an American citizen. And so all of these preventive paradigm is based on double standards that we treat Americans one way and we treats aliens another way. Now in Mr. Arar's case he was actually brought into Brooklyn and detained in Brooklyn two weeks but they say that's a fiction. He was never legally admitted it and if you are never legally admitted you have no rights and it's a fiction that pervades immigration law. But we think we have among us, because he was here we think we would have a very good argument and so because of that they have to move to their next argument which is another key aspect of the preventive paradigm, which is that even if he has rights, no court can review this. This is a political question; it's really something which the executive branch in Congress can deal with, not the courts. And again you see this over and over in all of their preventive measures, whether it's the war in Iraq, extraordinary rendition, which is that the executive branch should have no over sight and certainly not from procedures which are designed to check what the executive does. One of the basic propositions of American Law and American Constitution Law is that the executive can't run rampant and do whatever and wants without any checks. In the war in Iraq, the check was supposed to be the Security Council. When the Security Council said we are not voting for this, they said, "Screw you, we are going to do it anyway." Now they say no court can review it. If we win on that, they have is their ace in the whole, the State Secrets option. This is all secret. You can't look into because it is all secret. In this case they say the secrecy involves the assurances that Syria gave us that they wouldn't torture Mr. Arar, and that we are negotiating with the Syrians, that's all diplomatic negotiations, a court can't review that. To open that up to judicial scrutiny would mean that other nations wouldn't do business with us; they wouldn't negotiate with us because they would think that their diplomatic negotiations could be reveled in court. And what we asked the government is why would you believe Syrian assurances that they wouldn't torture Arar when you don't believe anything else the Syrians say. You say the Syrians are untrustworthy; they are vile the time, except when they tell us that they are not going to torture Mr. Arar, then you believe him. It is on its face, ludicrous. Unfortunately thus far we have lost in the District Court and we are going to be arguing this case sometime in the fall probably, in the Court of Appeals in Second Circuit in New York. And the German citizen who was taken and send to Afghanistan that I told you about before, also has sued, by the way most of the 160 people you don't hear from ever again. But the German citizen, Germany is our ally, so he also the ACLU is representing him, the Center for Constitutional Rights which I am part of, is representing Mr. Arar. But unfortunately the German citizen lost in the appellate court, not only in district court but also in the court of appeals because of the state secret option. So it's an uphill battle on these cases in the courts. But it I think shows you the broad nature of the preventive paradigm. That's the preventive paradigm at work and I think it has a broad un-depending war in Iraq, preventive detention. But I would like to move to the second point which is, has this made us any safer? You know the as I said the government and Hilary Clinton and other people said it has made a safer. If it would it has made a safer you would think that it would be getting some terrorists, you know that some terrorist would be being captured by these methods, by torturing people or by sending them to other countries to be tortured. Well let me give you some statistics. In the year after September 11th 5129 aliens were locked up preventively, many for months. Out of those how many have been prosecuted and convicted of any terrorist crimes. You think that there will be substantial amount you know a 1000 you know; maybe made 80 percent mistakes, maybe Ali Al-Maqtari is one of the 80 percent. But 20 percent they were right on. Two do you think? Two or three. Anybody else wants to have such a guess? Zero is the answer, zero. The next move the government made is they required 80000 aliens to come down to a special registration program which was highly invasive and highly threatening. I mean they didn't lock them up. Out of those 80,000. How many have they prosecuted? Maybe they captured a few that way, zero. 8,000, the FBI went out to get for questioning. They decided these people and if the FBI comes to your house for questioning, let me tell you it would be quite scary. Out of those 8000. You know the answer, zero. The - September 11th bipartisan Commission looked at all these preventive measures, taken after September 11, said they were complete failure, complete. They have captured no terrorists; they have alienated many Muslims and others, alienated whole communities and captured nobody. The Bush Administration says, "But wait a second, we have deported 515 aliens who were subject to terrorism investigations." That sounds pretty impressive, 515 people, would be terrorist are deported. Well, let me tell you, they only deported them after the FBI they were held after they were held for months. Many of these peoples said, just deport me, I want to go home. I have had enough with this country. The FBI held them until they were cleared and we have a suit on this, for their holding them for months. And all 515 of these people were cleared of any terrorist, because the FBI said don't deport them if they are terrorist, because then they would just come back. Let's first clear them off any terrorism charge and then deport them. So the 515 people that they have deported are people who had nothing to do with terrorism. They deported them because they had visa violations, they forged they made some error on their visa, they overstayed their visa for routine immigration violations. That's why they deported them. That has nothing to do with terrorism. Well, Bush says but we have broken up five terrorist cells. Now certainly this is a great thing you know, there have been five cells in the United States that have been plotting terrorism, they wanted to blow up bridges and bomb buildings and the government has stopped them and caught them. All right, let me ask you another question. Out of those five terrorism cells that they have broken up how many criminal convictions for attempted terrorism, terrorism, conspiracy to terrorism, how many? Zero. You would think, they broke up five terrorism cells, we will see some trials on this. I will give you one of them; just so you get the flavor of this. The most prominent one was in Lackawanna and you may have read about this, it was a year or two after the September 11th, they broke up the terrorist cell. It turned out it was seven misguided youth who were who had agreed the leader of the Mosque had said, go to a training camp in Afghanistan with Al-Qaeda, seven of them went, four of them said "We have we don't have anything to do with this and left early". The other three came home. The FBI's put them under surveillance for a year and a half; they didn't do anything. No attempt to terrorism, no conspiracy this is the terrorist himself. After a year and half, they couldn't get anything on these peoples. So they prosecuted them not for attempted terrorism or conspiracy to terrorism terrorism act; but for material aid to terrorists. And almost all of the terrorist prosecutions nowadays are for material aid because material aid could mean as the government has said, there there was a famous Court Case in the Guantanamo case where they asked the Judge asked the government, "Is it material aid to Al-Qaeda if a widow old lady in Switzerland gives money to a charity which turns out to be an Al-Qaeda run charity?" And the Government said, "Yes, that's material aid." That will make you an enemy combatant. And that would be material aid to the to Al-Qaeda. They prosecuted him for material aid. The material aid they never gave anything to the Al-Qaeda, they went to the training camp. And in fact, several US courts have found that use of the material aid statuet unconstitutional. But Cheney and Rumsfeld threatened that they with just call them enemy combatants and detain them indefinitely as enemy combatants and they plead guilty to material aid. It doesn't make me feel much safer that they broke up this terrorism cell. This is not a great example. In any event, that's what they have done. Just one last statistics when the Federal Government goes after John Q. Citizen and they prosecute, they get a 92 percent conviction rate. I would have thought in terrorism prosecutions the the conviction rate would be even higher, because the Jury would say, "This is an evil terrorist." They paint the person as you know some really evil person. In terrorist prosecutions, the conviction rate is 29 percent. And the only explanation for this is that which a number of FBI agents have said is that they are forcing the Justice Department to prosecute people who really don't have the evidence because of the need to get terrorism convictions. If you balance that record of catching almost no terrorists by this method, first is the tremendous harm the war in Iraq has done, the tremendous cost of the war of Iraq and these other preventive measures, both monitory, in lives and in legitimacy and the image of the United States. We as Rumsfeld once said in an internal memo, "Are we creating more terrorists than we putting behind bars?" And the answer is unquestionably "Yes". I would like to just move briefly to my last point which is, "What could we be doing if it's not preventive detention, preventive war; what what should we be doing?" And the answer is that in fact unlike what Giuliani says, in many cases the best defense is a good defense. His point is and the Bush's point is the best defense is a good offense. But in this case as in many the best defense is the best a good defense. We should be doing things like better screening of cargo coming into this country. Three years ago government experts evaluated that for $1.5 billion we could screen all the cargo coming into this country. They still haven't done it still haven't done it. $1.5 billion is the cost of five days of the war in Iraq. For $750 million, they could screen all the cargo that goes on airplanes. Not not the cargo that we take in passenger but freight cargo, they still haven't done it, 750 is two days of the war in Iraq. Instead in Bush's budget they are cutting programs like Law Enforcement, First Responder Programs to pay for the war in Iraq, which in my opinion was the most dramatic preventive measure. Again it's to prevent a war because the war requires that you cannot attack another country except in self defense, just like you cannot attack another citizen except in self-defense. You can't say my next door neighbor is plotting to get rid of me and I am going to go attack him. You have to wait, unfortunately till there is some conspiracy effort which you then call the Police and arrest him. But that's essentially what we did in Iraq; at an enormous cost. If you look at these programs that were cut, you know there there was big fight over this supplemental budget that Bush introduced just four or five months ago to pay for the wars in Iraq and Afghanistan. I think they asked for about $80 billion. You know how much they asked for for supplemental expenditures on homeland security? You you are getting the drift already, it should read zero. Congress added a couple of billion. But you know essentially they have done nothing. On nuclear proliferation; the answer is not to attack Iran, to attack North Korea, because they are not going to be able to do that. And in fact, they can't do it. If in the questions I can explain question answer session, I can explain why they can't do it. But the answer is to solidify and develop the international organizations like the Nuclear Non Proliferation Treaty which did work. It's now under severe strains, but it could be remedied if there was American leadership on it. And unfortunately there is not. The I want to end just by saying the most dramatic cost has been to our legitimacy. If you look at public opinion polls around the world, more than half of the people in Germany, Spain, France, Japan, - all of our allies do not support our "War on Terror". And we need international cooperation and international support if we are going to have any successes in this. They recently did a poll of the British public and that poll asked who do you consider the greatest danger to world peace? Number one was Osama Bin Laden number one. Number two, beating out such leaders like the leaders of North Korea, Iran, was our President George Bush. That speaks and this wasn't in you know, some Middle Eastern country which of course they conclude this. This is in Britain this is in Britain. It speaks volumes about the loss of our image and legitimacy around the world. I would like to close with a quote from a man who knows a lot about terrorism, who is Aharon Barak, the President of Israel's Supreme Court. Barak said, "A democracy must sometimes fight terror with one hand tied behind its back." Even so a democracy has the upper hand, the rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties. It is only by following the rule of law, by taking measures that are consistent with law, democratic traditions, that we can fight this battle and not through this preventive paradigm. Thank you.