How Not to Fight Terrorism

By David Cole
Friday, May 5, 2006

After four years, numerous appeals, millions of dollars, and a massive investment of government personnel and resources, the trial of Zacarias Moussaoui concluded Wednesday with a life sentence. Many have cited the case as an example of how difficult it is to try terrorists in civilian courts. In fact, it is an object lesson in how the government's overreaching has undermined our security.

Four years ago Moussaoui was on the verge of pleading guilty to offenses that would have resulted in a life sentence. But he was unwilling to accept the government's insistence that he admit to being the 20th hijacker of Sept. 11, 2001 -- an allegation the government has long since dropped.

For almost two years, the case was stalled as the government sought Moussaoui's execution while denying him access to witnesses in its control who had testimony establishing that he was not involved in the Sept. 11 plot at all. Due process has long required the government to turn over such "exculpatory" evidence, but the government, citing national security, refused to afford Moussaoui access to this evidence. In October 2003 the trial court offered a reasonable solution: Allow the trial to proceed but eliminate the death penalty, because that's what the government's exculpatory evidence related to. The government refused that solution and spent several more years trying Moussaoui. The case ended where it began -- with Moussaoui facing life in prison.

Meanwhile, at a secret CIA "black site" prison, the United States is holding the alleged mastermind of Sept. 11, Khalid Sheik Mohammed. And at Guantanamo Bay, Cuba, it has Mohamed al-Qahtani, who the government now claims is the real would-be 20th hijacker. But the administration can't try either of these men, because any such proceeding would turn into a trial of the United States' own tactics in the war on terrorism. The CIA has reportedly water-boarded Khalid Sheik Mohammed -- a practice in which the suspect is made to fear that he is drowning in order to encourage him to talk. And Army logs report that interrogators threatened Qahtani with dogs, made him strip naked and wear women's underwear, put him on a leash and made him bark like a dog, injected him with intravenous fluids and barred him from the bathroom so that he urinated on himself. With these shortsighted and inhumane tactics, the administration essentially immunized the real culprits, so it was left seeking the execution of a man who was not involved in Sept. 11.

The Moussaoui case is emblematic of the administration's approach to fighting terrorism. It has repeatedly overreached and sought symbolic victories, adopting tactics that have undermined its ability to achieve real security while disregarding less flashy but more effective means of protecting us. In the early days after Sept. 11, Attorney General John Ashcroft sought to reassure us with repeated announcements of the detention of large numbers of "terror suspects" -- ultimately the government admitted to detaining 5,000 foreign nationals in the first two years after Sept. 11. Yet to this day not one of them stands convicted of a terrorist offense. Similarly, the administration launched a nationwide ethnic profiling campaign, calling in 8,000 young men for FBI interviews and 80,000 more for registration, fingerprinting and photographing by immigration authorities, simply because they came from Arab and Muslim countries. Not one of those 88,000 has been convicted of terrorism.

Early on, the administration labeled the Guantanamo detainees "the worst of the worst." Yet we now know that more than 250 have been released, that they included boys as young as 13 and that of those who remain, only 8 percent are even accused of being fighters for al-Qaeda. The majority are not accused of engaging in any hostile acts against the United States.

Jose Padilla, the American arrested at Chicago's O'Hare Airport and whisked into military custody amid the attorney general's claims that he was planning to detonate a radiological "dirty bomb," has been released from military custody and is now charged only with being a marginal player in a hazy conspiracy to support terrorism. His indictment cites no terrorist acts or terrorist groups that were actually supported.

While the government rounded up Arabs and Muslims with no ties to terrorism and authorized torture and disappearances, several of its highest-profile cases fell short, and it failed to carry out the more mundane work that might actually make us safer. In December the bipartisan Sept. 11 commission gave the administration a disastrous report card on its progress in implementing a series of practical security recommendations -- such as better screening of cargo on airlines and containers coming into ports, securing of nuclear materials in the former Soviet Union to keep them out of terrorists' hands, and protection of vulnerable targets such as chemical plants.

Tough talk in news conferences, overheated charges that evaporate under scrutiny and executions for symbolic purposes will not make us safer. The administration needs to turn away from symbolism and toward substance if it is to have any hope of protecting us from the next attack.

The writer is a law professor at Georgetown University and author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."

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