By William Fisher Truthout 8/28/07

The constitutional scholars who represented extraordinary-rendition victim Maher Arar charge that America is losing the “war on terror” and the civil rights of its citizens because of Bush administration policies.

In a new book, “Less Safe, Less Free: Why America Is Losing the War on Terror,” law professors David Cole and Jules Lobel argue that the problem lies in the aggressive “preventive paradigm” the Bush administration adopted in the wake of 9/11.

The authors note that the administration “is fond of reminding us that no terrorist attacks have occurred on domestic soil since 9/11,” but they ask, “Has the administration’s ‘war on terror’ actually made us safer?”

Their answer: “While the ‘preventive paradigm’ can point to few gains in our security, it has come at great cost to our ideals. In the name of preemptive security, the administration has undertaken torture, indefinite detention without trial, extraordinary renditions, disappearances into CIA ‘black sites,’ warrantless wiretapping of American citizens, and an illegal and disastrous war in Iraq.”

These measures, they add, “constitute the core of the ‘preventive paradigm,’ and have compromised the most basic commitments of the rule of law. And by doing so they have actually impeded our efforts to bring known terrorists to trial, limited our long-term options for security, sparked anti-American resentment and terrorist recruitment, and undermined relations even with our closest allies.”

The authors offer an alternative vision for combating terrorists while preserving the rule of law. Their approach is based on “noncoercive measures and multilateral cooperation, relies on the ‘soft power’ of foreign relations rather than military might, and recognizes that where coercion is necessary and appropriate, it must adhere to basic legal rules, treating the rule of law as an asset, not an obstacle, in the struggle to keep us safe and free.”

In an online interview with Truthout, Cole said, “This book shows that if we are to be safe in the twenty-first century, we need to be smart about counterterrorism, not just act tough. The Bush administration’s ‘war on terror,’ by adopting coercive preventive measures, has not only sacrificed some of the deepest commitments of our democracy, but has garnered few terrorists and actually made us less safe. We need to treat the rule of law as an asset, not an obstacle, if we are to avoid creating a problem even bigger than the one we faced on 9/11.”

Cole, considered one of the nation’s preeminent constitutional scholars, is a professor at the Georgetown University Law Center. With other lawyers at the Center for Constitutional Rights (CCR), a legal advocacy group, he represents Maher Arar, the Canadian citizen who was rendered to Syria, where he was tortured. Cole is also working with Arab and Muslim foreign nationals rounded up and abused in the immediate aftermath of the 9/11 attacks, and is challenging the constitutionality of the laws making it a crime to provide “material support” to groups designated as terrorists.

David Lobel, a CCR vice president, is a law professor at the University of Pittsburgh. He also represents Arar, has consulted on Guantanamo Bay cases, and has worked with American servicemen challenging the Army’s unilateral extension of their contracts.

Maher Arar, a Syrian-born Canadian citizen, was detained during a layover at JFK International airport in September 2002, on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated and denied access to a lawyer. The Bush administration labeled him a member of al-Qaeda and rendered him not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture.

Arar sued former Attorney General John Ashcroft, FBI Director Robert Mueller, and then-Secretary of Homeland Security Tom Ridge, as well as numerous US immigration officials. His case was dismissed when the government invoked the “state secrets” privilege, contending that hearing the case in open court would compromise US national security. His case was dismissed and is being appealed.

In September 2006, after a two-year probe, the Commission of Inquiry established by the Canadian Government to “Investigate the Actions of Canadian Officials in Relation to Mr. Arar” concluded “categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada.” Canadian investigators, with US cooperation, exhaustively investigated Arar and found no information that could implicate him in terrorist activities. The Canadian government paid him $10 million.

In January 2007, after months of negotiations between the Canadian government and Arar’s Canadian legal counsel, Prime Minister Stephen Harper issued a formal apology to Arar on behalf of the Canadian government.

Harper released a copy of a letter sent to Arar, apologizing “for any role Canadian officials may have played in what happened to Mr. Arar, Monia Mazigh and their family….”

Despite the inquiry’s exoneration of Arar, the United States has refused to remove Arar from its watch list. He now lives in British Columbia.

Harper again called on Washington to remove Maher Arar from its no-fly and terrorist watch lists. He reiterated that Canada would keep pressing the United States to clear Arar’s name.

Authors Cole and Lobel say their new book represents the first comprehensive review of the administration’s record in fighting terrorism. They argue that “preemptive coercion has not only compromised our most basic values, but has little to show in terms of captured terrorists, disrupted terrorist plots, or increased security.”

They cite the July 2007 National Intelligence Estimate, which found that al-Qaeda has fully reconstituted itself in Pakistan’s border region. “Worldwide terrorist attacks have grown dramatically since 2001. And most experts agree that independent terrorist groups, from al-Qaeda in Iraq to the individuals who bombed subways and buses in London and Madrid, have multiplied since 9/11. Meanwhile, despite its boasts, the total number of individuals the Bush administration has convicted of engaging in a terrorist act is one (Richard Reid, the shoe bomber).”

The authors calculate that the administration’s record in its anti-terrorism immigration initiatives after 9/11 is 0 for 93,000.

“These sweeping measures unearthed not a single convicted terrorist,” they write, adding, “The administration’s record in criminal ‘terrorism’ cases is not much better, as it has lost far more cases than it has won, and has brought almost no actual terrorists to justice. Similarly, by the government’s own account, only about five percent of those it has held at Guantanamo were fighters for al-Qaeda or the Taliban.”

More than half the Guantanamo detainees former Defense Secretary Donald Rumsfeld and other senior US government officials once called “the worst of the worst” have been released. “The administration’s preventive war in Iraq has also made the United States more vulnerable to terrorism, not less, as it has prompted the creation of suicidal organizations that did not even exist prior to 9/11 in response to American tactics,” the authors say.

“The administration’s response to 9/11 has not only compromised fundamental principles of the rule of law, but has actually made America less safe. They have launched an aggressive campaign they call the ‘preventive paradigm’, started a war that has sacrificed tens of thousands of lives and wasted untold resources, and sacrificed some of our most important liberties, yet they have little or nothing to show for it. Al-Qaeda has reconstituted itself in Pakistan; independent groups have sprouted up all over the world and, meanwhile, the administration has convicted exactly one person for an actual terrorist attempt since 9/11 – Richard Reid, the shoe bomber,” Cole and Lobell write.

The “preventive paradigm,” the authors explain, “is an approach adopted by the administration right after 9/11 and given that name by then-Attorney General John Ashcroft. It emphasizes the use of highly coercive measures against people or states not for wrongs they have committed in the past, but on the basis of speculative guesses about what they might do in the future. It has included special registration of Arabs and Muslims, preventive detention, intensive surveillance, coercive interrogation, and a ‘preventive war’ in Iraq.”

Cole and Lobell charge, “In each instance, the administration has argued that the measures must be used before we have strong evidence of wrongdoing. And as a result, the measures have been employed against many who pose no threat at all, and [the measures] have been remarkably unsuccessful in identifying actual terrorists.”

The authors conend, “The government locked up over 5,000 foreign nationals in preventive detention in the first two years after 9/11, sought out 8,000 Arab and Muslim men for FBI interviews, and called in 80,000 Arab and Muslim foreign nationals for special registration, fingerprinting and photographing. The idea was that we might find a terrorist. But not one of these men has been convicted of a terrorist offense.”

Cole and Lobell say their new book offers “a straightforward, common-sense assessment of how we have been doing in what the Bush administration calls the ‘war on terror’. Particularly with Bush leaving office and a campaign for a new president in full swing, it’s important that we look at how the administration’s ‘preventive paradigm’ has worked,” they say.

“And we think it’s particularly important to address that question from two angles – what it has done to the principles for which this country stands at its best, and what it has meant for US security. We argue that the tactic of using coercive government measures ‘preventively,’ based not on proven past wrongdoing but speculation about future threats, has led us to compromise the most basic principles of the rule of law – equality, fair procedures, checks and balances, and the like.”

At the same time, they add, the book shows that these sacrifices have not netted much if any benefit from a security standpoint. “It has netted few real terrorists and disrupted few real plots. What’s worse, it has backfired, as measures such as coercive interrogation, disappearances into secret CIA prisons, indefinite detention without trial at Guantanamo, and preventive war have sparked unprecedented levels of anti-Americanism worldwide, thereby increasing the likelihood that we will be attacked again.”

The book argues that “one can be ‘preventive’ without using harsh measures such as preventive detention, coercive interrogation and preventive war. The rule of law permits a nation to do much to protect itself while staying true to principles of justice and equality. Measures such as safeguarding nuclear stockpiles around the world, outfitting first responders, protecting vulnerable infrastructure and screening cargo and passengers more carefully have the potential to offer substantial protection, without the sacrifices in principle that the Bush administration’s approach has entailed – and without the backlash that has followed.”

William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Fisher also served in the international affairs area during the Kennedy administration. Go to The World According to Bill Fisher for more.