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Counterterrorism Requires Accountability

  • Aziz Huq
Published: March 9, 2006
Thursday, March 09, 2006

Counterterrorism Requires Accountability
by Aziz Huq

Time and again, we the people learn too late a measure ranked as essential to the nations safety is grounded on shifting factual sands. The founders of our nation, of course, anticipated the risk that government, in pursuing security, would overreach and err. What is dangerous is that the constitutional mechanisms crafted to identify, expose and check such foul-ups, which James Madison famously called our auxiliary protections, have recently faltered.

Weve learned in the last months how flawed or irrelevant intelligence and inadequate evidentiary standards have been part of the decision-making process for major national security questions. Last week, the National Journal reported that President Bush knew before he launched the war in Iraq that there was no connection between Iraq and the 9/11 conspirators; that Iraq posed a threat to the U.S. only if attacked; and that there was no consensus about Iraqi WMDs. In just the last few days, the Associated Press has exposed a wealth of individual stories from Guantnamo illustrating the haphazard and flawed basis of detention decisions. In both cases, intelligence analysis has been structured to justify pre-ordained conclusions: that Iraq had WMDs, and that detainees must be bad guys.

The fact that the executive branch insists on relying on flawed or fatally incomplete evidence should be a matter of deep concern. In this months Foreign Affairs , Paul Pillar, formerly National Intelligence Officer for the Near East and South Asia, explained that in the run-up to the Iraq war, [t]he administration used intelligence not to inform decision-making, but to justify a decision already made. It went to war without requestingand evidently without being influenced byany strategic-level intelligence assessments on any aspect of Iraq. Information instead was cherry-picked to meet preordained conclusions. And intelligence service warnings of the dire difficulties of post-war reconstruction given the fragility of Iraqs latticework of ethnic, tribal and religious divisions were ignored.

These mistakes are worrying, especially because they highlight inadequate procedures, not just plain errors. But the failure of both Congress and the courts to step in and correct processes gone awry is even greater cause for concern.

An October 2002 National Intelligence Estimate summarized American knowledge of Iraqi weapons plans and strategy for Congress. As Pillar notes, it was read by less than a dozen of our legislators before the vote to authorize war. Congress was preoccupied with more important matters. In March 2003, the House Administration Committee chairman ordered that French Fries be rechristened Freedom Fries. As for the federal courts, since the 1970s, they have thrown up their hands when faced with suits challenging decisions to commit American troops overseas.

The same deeply flawed intelligence procedures, the same woeful abdication of legislative and judicial responsibility, is evident in the handling of detainees at Guantnamoand presumably, at the swelling facility at Bagram Air Force Base near Kabul. Separate reports by Corine Hegland of the National Journal and by Mark and Joshua Denbeaux have demonstrated that the military evidence used to justify years-long detentions is weak, indirect, and often based on lies from other detainees. Startlingly, the Denbeaux report uses government data to show that only five per cent of the Guantnamo prisoners were even picked up by U.S. forces in Afghanistan. The evidence obtained by the Associated Press about individual detainees confirms the frailty of the evidence used to justify prolonged detention.

One particularly egregious detention error shows how deep the flaws run in intelligence work. Major General Michael Dunleavywho headed the armys interrogation efforts at Guantnamo until November 2002described detainees claim that they had gone to Afghanistan to teach the Quran as the part of the Big Lie. Dunleavy proudly explained that he called detainees out by having them admit they spoke neither Dari (a dialect of Farsi) nor Pashtu, the dominant languages of Afghanistan.

Its a shame Dunleavy apparently did not speak to anyone raised as20a Muslim, who could have told him that the Quran is not taught in native languages. Many, many Muslims who do not know Arabic nonetheless learn the Arabic text of the Quranwhich they view as the unmediated divine wordby heart even though they do not understand it. Indeed, it is typical to try to read the Quran phonetically before studying a translation. In Bangladesh, where my family comes from, there is a special celebration, called a khatam milad, for a child who has read the Quran all the way through in Arabic, even though he or she does not understand it.

The only big thing about Dunleavys theory was its wrongness. That the Army lacks even elemental understanding of the religion and culture of the people with whom they must interact is deeply worrying. For it is hard to see how the Pentagon will succeed in its efforts to resist the bleak and murderous jihadist ideology without a basic understanding of the cultures involved.

Even in the face of such injustice, Congress has not acted. Rather than responding to the manifest intelligence failure and injustice that Guantnamo represents, Congress has thrown its weight behind the administrations Dont Ask, Well Tell policy. In December 2005, Congress enacted a law that purports to narrow federal court review of detainees claims, particularly challenges to the factual bases of their detentions. In other words, Congress relieved the courts of oversight at the very moment accountability is most needed.

Although the courts have provided detainees with some reliefparticularly from transfers to other countries that use torturejudicial remedies have been sparing. In December 2005, a district court judge issued an order in which he concluded that he detainee before him was innocent, but that the courts could do nothing to remedy the militarys decision to continue detaining him unlawfully. Shockingly, the court suggested that the government could re-enact the Japanese internment camps for non-citizens, and render them immune from judicial scrutiny by placing them off-shore.

Even this district court decision, one of the first to tackle the validity of detentions, has been painfully slow in coming. This dawdling is hurting us with our allies overseas. In late 2004, I spoke to a former Pakistani Supreme Court judge, and explained to him that the U.S. Supreme Court had just rejected the administrations argument that courts had no role reviewing detentions at Guantnamo, and that the detainees challenges could proceed. His face took on a pained expression. All he said was Three years? And you call this justice?

The absence of constitutional processof real legislative debate, or public discussion informed by all the relevant facts, of judicial review of delicate decisions of human liberty and well-beingvirtually guarantees the future occurrence of grotesque and elementary mistakes akin to Dunleavys. When the wrong people are locked up, we waste their lives and our tax dollars frittering away the good will of the world. The long-term cost of these mistakes is an epidemic of global cynicism that jeopardizes Americas claim to a moral high ground in foreign affairs.

Is America today safer than it was on September 12, 2001? For the public, this will be the ultimate litmus test for counter-terrorism measures. But measures undertaken on the basis of deeply flawed intelligence supplied to satisfy foregone conclusions is hardly likely to overcome this bar. Similarly, incompetence in execution gives Americas enemies opportunities they would never otherwise have had. And unless legislators and courts compel accountability, we will never know the errors and crimes committed in our name.

Surely, we can do better. Surely, we must.

Aziz Z. Huq is associate counsel at the Brennan Center for Justice at NYU School of Law. He is co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror, to be published in 2007 by the New Press.