We Need To End the Disastrous Failure Of The War On Terror
by Nicolas J.S. Davies on 04-02-2014
BRussells Tribunal
America's military adventures have fueled a global explosion of terrorism and a historic breakdown of law and order.
Global
War on Terrorism Memorial at the Colorado State Welcome Center/Rest
Area in Trinidad, Colorado. Photo Credit: Matt Lemmon/Flickr
February 3, 2014
Twelve years into America's "war on terror," it is time to admit
that it has failed catastrophically, unleashing violence, war and
instability in an "arc of terror" stretching from West Africa to the
Himalayas and beyond. If we examine the pretext for all this chaos,
that it could possibly be a legitimate or effective response to
terrorism, it quickly becomes clear that it has been the exact opposite,
fueling a global explosion of terrorism and a historic breakdown of law
and order.
The U.S. State Department's "terrorism" reports
present a searing indictment of the "war on terror" on its own terms.
From 1987 to 2001, the State Department's "Patterns of Global
Terrorism" reports had documented a steady decline in terrorism
around the world, from 665 incidents in 1987 to only 355 incidents in
2001. But since 2001, the U.S. "war on terror" has succeeded in fueling
the most dramatic and dangerous rise in terrorism ever seen.
The State Department reports seem, at first glance, to show some
short-term success, with total terrorist incidents continuing to
decline, to 205 incidents in 2002 and 208 in 2003. But the number of
more serious or "significant" incidents (involving death, serious
injury, abduction, kidnapping, major property damage or the likelihood
of such results) was already on the rise, from 123 incidents in 2001 to
172 in 2003.
But then the 2004 report,
due to be published in March 2005, revealed that the number of
incidents had spiked to an incredible 2,177, including 625 "significant"
incidents, even though the report excluded attacks on U.S. occupation
forces in Iraq. Secretary of State Condoleeza Rice took decisive
action, not to urgently review this dangerous failure of U.S. policy,
but to suppress the report. We only know what it said thanks to
whistleblowers who leaked it to the media, and to Larry Johnson, an ex-CIA and State Department terrorism expert and a member of Ray McGovern's Veteran Intelligence Professionals for Sanity.
Rice eventually released a reformatted version of the 2004 report,
ostensibly replacing "Patterns of Global Terrorism" with a new report
titled "Country Reports on Terrorism" that excluded all statistical
data. The State Department has continued to publish "Country Reports on
Terrorism" every year, and was forced to include a "statistical annex"
beginning with the report for 2005. The reports also include
disclaimers that this data should not be used to compare patterns of
terrorism from one year to the next because of the "evolution in data
collection methodology". In other words, a report that used to be
called "Patterns in Global Terrorism" should not be used to study
patterns in global terrorism!
So, what is the State Department afraid we might find if we used it
to do just that? Let's take a look. The politicization of these
reports certainly undermines their reliability, but, as Secretary Rice
understood verywell, the dramatic rise in global terrorism that they
reveal is undeniable.
The numbers obviously spiked in Iraq and Afghanistan while under
U.S. occupation, so we'll exclude the figures for those periods in those
countries. The rationale for the "war on terror" was always that, by
"fighting them there", we wouldn't have to "fight them here", so we'll
just look at the effect "here" and everywhere else.
On that limited basis, the State Department reports nonetheless
document an explosion of terrorism, from 208 incidents in 2003 to 2,177
in 2004 to 7,103 incidents in 2005. Since then, the total has fluctuated
between a high of 7,251 incidents in 2008 and a low of 5,029 incidents
in 2009, after President Obama's election temporarily raised hopes of a
change in U.S. policy. The State Department has not issued a report for
2013 yet, but the number of "terrorist" incidents in 2012 remained at
5,748, documenting an intractable crisis that is the direct result of
U.S. policy.
The ineffectiveness of the war on terror is intricately entwined with its illegitimacy. In my book, Blood On Our Hands: the American Invasion and Destruction of Iraq,
I argued that the illegitimacy of the hostile U.S. military occupation
of Iraq was at the root of all its other problems. The U.S. forces who
illegally invaded the country lacked any real authority to restore the
rule of law and order that they themselves had destroyed. Even today,
two years after expelling U.S. forces, the Iraqi government installed by
the U.S. occupation remains crippled by fundamental illegitimacy in the
eyes of its people.
The United States' "war on terror" faces the same problem on a
global scale. The notion of fighting "terror with terror" or a "war on
terror" was always fundamentally flawed, both legally and in its
prospects for success. As Ben Ferencz, the only surviving prosecutor from the Nuremberg war crimes trials, explained to NPR on September 19th 2001, a week after the mass murders of 2,753 people in his hometown, New York City:
"It is never a legitimate response to punish people who are not
responsible for the wrong done. We must make a distinction between
punishing the guilty and punishing others. If you simply retaliate en
masse by bombing Afghanistan, let us say, or the Taliban, you will kill
many people who don't approve of what has happened. I wouldn't say
there is no appropriate role (for the military), but the role should be
consistent with our ideals… our principles are respect for the rule of
law, not charging in blindly and killing people because we are blinded
by our tears and our rage. We must first draw up an indictment and
specify what the crimes were, calling upon all states to arrest and
detain the persons named in the indictment so they can be interrogated
by U.S. examiners… I realize that (the judicial process) is slow and
cumbersome, but it is not inadequate… We don't have to rewrite any
rules. We have to apply the existing rules."
Ferencz took issue with the use of terms like "war", "war crimes" and "terrorism."
"What has happened here is not war in its traditional sense… War
crimes are crimes that happen in wartime. There is confusion there…
Don't use the term "war" crimes, because that suggests there is a war
going on and it's a violation of the rules of war. This is not in that
category. We are getting confused with our terminology in our
determination to put a stop to these terrible crimes… To call them
"terrorists" is also a misleading term. There's no agreement on what
terrorism is. One man's terrorism is another man's heroism... We try
them for mass murder. That's a crime under every jurisdiction and
that's what's happened here and that is a crime against humanity."
British military historian Michael Howard told NPR that U.S. leaders
were making "a very natural but a terrible and irrevocable error" in
declaring a "war on terrorism." He elaborated in a lecture in London a few weeks later:
"…to use, or rather to misuse the term "war" is not simply a matter
of legality, or pedantic semantics. It has deeper and more dangerous
consequences. To declare that one is "at war" is immediately to create a
war psychosis that may be totally counter-productive for the objective
that we seek. It will arouse an immediate expectation, and demand, for
spectacular military action against some easily identifiable adversary,
preferably a hostile state…"
In the U.S. Congress in 2001, Barbara Lee stood alone
against a sweeping Authorization for the Use of Military Force (AUMF),
giving the president the authority to use "all necessary and appropriate
force against those nations, organizations, or persons" whom he judged
to have "planned, authorized, committed or aided" the mass murders of
September 11th.
Barbara Lee implored her colleagues not to "become the evil we
deplore," but she was the only Member with the clarity and courage to
vote "No" to the AUMF. Twelve years later, she has 31 co-sponsors forH.R. 198, a bill to finally repeal the 2001 AUMF. They include former civil rights leader John Lewis, who said recently,
"If I had to do it all over again, I would have voted with Barbara Lee.
It was raw courage on her part. So, because of that, I don’t vote for
funding for war. I vote against preparation for the military. I will
never again go down that road."
From the outset, few Americans understood that the "war on terror"
was not legally a real war in which the civilian rule of law was
suspended. Elizabeth Wilmshurst resigned as Deputy Legal Advisor to the
British Foreign Office in protest at the U.K.'s "crime of aggression"against Iraq in 2003. A year later, she told theIndependent,
"This rather extraordinary war on terror, which is a phrase that all
lawyers hate… is not really a war, a conflict against terror, any more
than the war on obesity means that you can detain people."
As the Obama administration took office in 2009, an Eminent Jurists Panel
convened by the International Commission of Jurists, and headed by
former President of Ireland Mary Robinson issued a report on the U.S.
response to terrorism since 2001. The report concluded that the U.S.
government had confused the public by framing its counter-terrorism
activities within a "war paradigm." It explained,
"The U.S.' war paradigm has created fundamental problems. Among the
most serious is that the U.S. has applied war rules to persons not
involved in situations of armed conflict, and, in genuine situations of
warfare, it has distorted, selectively applied and ignored otherwise
binding rules, including fundamental guarantees of human rights laws."
Like Ben Ferencz, the ICJ panel insisted that established principles
of law "were intended to withstand crises, and they provide a robust
and effective framework from which to tackle terrorism."
But Barack Obama was an unlikely candidate to restore the rule of
law to U.S. policy, to demilitarize the "war on terror" or to derail the
gravy train of the largest military budget since World War II. His long-term ties to General Dynamics CEO Lester Crown
and his thorough vetting by Crown and other military-industrial
power-brokers ensured that the 2008 election was the first in 14 years
in which Democrats raised more campaign cash from the weapons industry
than Republicans, even after the Republicans almost doubled the military
budget in 8 years and nominated industry darling John McCain for
president.
A persistent part of the Obama myth is his description of himself as
a "constitutional law professor." While serving as an Illinois State
Senator, Mr. Obama did have a part-time job as a lecturer teaching 3
two-hour seminars per year at the University of Chicago in a program
that brought politicians and other prominent people into the law school
to give students a taste of the "real world." Most of the seminars were
on public interest law or racism, not constitutional law,
but in the looking-glass world of Obama mythology, this has transformed
him into a "constitutional law professor" for political purposes.
Obama has failed to close Guantanamo, escalated the longest and most unpopular war in U.S. history in Afghanistan, maintained the largest military budget since World War II, conducted 23,000 air strikes (mostly in Afghanistan), launched or expanded covert and proxy wars in Pakistan, Yemen, Somalia, Libya and Syria, and deployed U.S. special forces to 120 countries.
But perhaps the signature initiative of Obama's war policy has been the expansion of assassination operations using unmanned drones and JSOC death squads. These operations violate still-standing executive orders
by previous presidents that prohibit assassination by U.S. forces or
officials. They are not legally covered by the 2001 AUMF, because very
few of the people he is killing were involved in the crimes ofSeptember
11th, as former State Department Legal Adviser John Bellinger pointed out to the Washington Post in 2010.
Just as Bush administration lawyers wrote memos claiming that
torture was not torture, Obama's have reportedly written memos claiming
that assassination is not assassination and that innocent civilians in
half-a-dozen countries are somehow implicated in September 11th and
therefore legitimate targets under the 2001 AUMF. But after Bush's
torture memos were widely ridiculed as legal fig-leaves to justify war
crimes, the Obama administration has drawn a veil of secrecy over its
assassination memos. If Obama's legal training has taught him nothing
else, it's that he can't afford to expose his illegitimate cover for war
crimes to public scrutiny and global outrage.
As the U.N.'s Special Rapporteur for Extrajudicial Executions Philip Alston wrote in June 2010,
"Targeted killings pose a rapidly growing challenge to the
international rule of law, as they are increasingly used in
circumstances which violate the rules of international law… The most
prolific user of targeted killings today is the United States, which
primarily uses drones for attacks… the United States has put forward a
novel theory that there is a "law of 9/11" that enables it to legally
use force in the territory of other states as part of its inherent right
to self-defense on the basis that it is in an armed conflict with
Al-Qaeda, the Taliban and "associated forces," although the latter group
is fluid and undefined. This expansive and open-ended interpretation
of the right to self-defense goes a long way towards destroying the
prohibition on the use of armed force contained in the UN Charter."
The prohibition against the threat or use of force in Article 2.4 of the UN Charter
is the foundation of peace in the modern world. As Alston implied, it
is either an unintended victim or an intended target of the "war on
terror." The history of U.S. war policy since the end of the Cold War
suggests the latter. U.S. officials came to see the Charter's
prohibition on the threat or use of force as a constraint on their
ability to exploit the "power dividend"
they gained from the collapse of the Soviet Union. For ten years, they
struggled to sell the world on new interventionist doctrines of "reassurance", "humanitarian intervention", "responsibility to protect" and "information warfare." In the Clinton administration's 1997 Quadrennial Defense Review (QDR),
itclaimed the right to use unilateral military force to "defend vital
national interests," including "preventing the emergence of a hostile
regional coalition…(and) ensuring uninhibited access to key markets,
energy supplies and strategic resources."
As the British Foreign Office's top Legal Adviser
told his government during the Suez Crisis in 1956, "The plea of vital
interest, which has been one of the main justifications for wars in the
past, is indeed the very one which the U.N. Charter was intended to
exclude." So the implicit threat in Clinton's QDR was a violation the
U.N. Charter, and his attack on Yugoslavia in 1999 was a flagrant
violation and a crime of aggression. When British Foreign Secretary
Robin Cook told Secretary Albright the U.K. was having difficulty "with
its lawyers" over the plan to attack Yugoslavia, she told him the U.K.
should "get new lawyers."
When planes crashed into the World Trade Center and the Pentagon on
September 11th, counter-terrorism still seemed an unlikely pretext for
overturning the U.N. Charter. But, within hours, according to Under-secretary Cambone's notes
obtained by CBS News, Defense Secretary Rumsfeld told a meeting at the
Pentagon, "Judge whether good enough hit S.H. (Saddam Hussein) at same
time - not only UBL (Usama Bin Laden)… Go massive. Sweep it all up.
Things related and not."
Twelve years later, as Michael Howard predicted, it is much harder
to unscramble the consequences of America's "natural but terrible"
embrace of open-ended aggression and militarism. But underlying all the
crimes and atrocities committed in our names is the fiction that we are
at "war" with "terror", whatever that can possibly mean. What it means
in practice is that the U.S. government has applied an opportunistic
soup of peacetime and wartime rules to justify whatever it wants to do,
to use force anywhere in the world, to kill or maim anybody, to spy on
anybody, to violate any treaty or human rights law and to project power
anywhere, to effectively place itself beyond the rule of law. To
paraphrase Richard Nixon, "When the United States does it, that means that it is not illegal."
The analysis of international lawyers like Ben Ferencz and other
experts gives us a clear road-map to ending the war on terror and
starting to undo its terrible consequences. There is a surprisingly
clear consensus across the political spectrum on what needs to be done.
On the one hand, we have Noam Chomsky saying,
on October 18th 2001, that, "The only way we can put a permanent end to
terrorism is to stop participating in it." On the other hand we have
Eliza Manningham-Buller, the first woman to head MI5, the U.K.'s
domestic intelligence agency, describing a meeting at the British Embassy
in Washington on September 12th 2001, where "there was one thing we all
agreed on: terrorism is resolved through politics and economics, not
through arms and intelligence… I call it a crime, not an act of war… I
have never thought it helpful to refer to a "war" on terror any more
than a war on drugs."
Ending the failed war on terror means restoring the rule of law to
U.S. policy - not by secret interpretations of extraordinary laws
granting unconstitutional emergency powers, but by genuine compliance
with U.S. law and international treaties like the U.N. Charter and the
Geneva Conventions. If we allow our government to persist in this
failed and disastrous policy, it will continue to corrupt and erode its
own authority, it will destabilize the entire world and it will leave us
defenseless in the face of real existential dangers like climate change
and nuclear war.
Nothing could be more urgent than ending the failed war on terror
(FWOT). These are the practical steps we must demand of the President
and Congress:
1) Pass Barbara Lee's bill, H.R.198, to repeal the 2001 Authorization for the Use of Military Force.
2) Close the concentration camp at Guantanamo Bay. Transfer accused
criminals to stand trial in legitimate courts under fair trial
standards, and release and compensate people wrongly imprisoned and/or
tortured.
3) Halt all drone strikes, assassinations and military or
paramilitary operations that violate the U.N. Charter, the Geneva
Conventions or other established principles of international law.
4) Substantially cut the U.S. military budget to end the most
expensive and destabilizing unilateral arms build-up in the history of
the world.
5) Acknowledge that the U.S. has committed aggression, torture and
other war crimes during the past 12 years. Restore legal accountability
and compensate victims.
6) Make a new commitment to good faith diplomacy and cooperation
with other countries to deal with the world's pressing political,
economic, social and environmental problems, including the explosion of
terrorism caused by the war on terror.
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