Still Missing: An Enduring International Legal Framework for the "War on Terror"

Earlier this week, Susan Crawford, the official overseeing the military commission process at Guantanamo Bay, dismissed charges against Mohammed al-Qahtani–the man suspected of being the so-called “twentieth” hijacker on 9/11. 

It is not that the government believes he is not a threat.  Rather, Crawford determined, apparently, that prosecutors could not make their case without relying on information “obtained during abusive military interrogations,” as the Washington Post team of Josh White and Julie Tate put it.

The military lawyer appointed to defend al-Qahtani was less anodyne in his assessment, saying, “Their case was only based on evidence derived from torture.  In six plus years, the evidence comes down to what they beat out of him.  The prosecution evidence was entirely unreliable and inadmissible.”

How did we get here?

The tragic truth is that nearly seven years after the attacks of September 11, 2001, the United States has failed to build an enduring legal framework, domestically or internationally, to prosecute the “War on Terror.”

The details of this failure have been very well summarized in a number of other places.  The American Bar Association has examined how lawyers rate the legal “war on terror,” and respondents gave the United States abysmal grades.  The New York University School of Law’s Center on Law and Security issued a report card in 2006 on terrorism trials in the civilian courts of the United States since 2001.

But what is at issue at Guantanamo Bay is the Administration’s entire approach to the “war on terror.”  Though it has been described by officials as a “long war,” there has been no effort to create the enduring institutions necessary to fight a protracted conflict.  Instead, we have seen the assertion of executive authority, the creation of a flawed military commission process, the rejection of Geneva in 2001 and 2002 because its provisions were “quaint,” and the subsequent failure to create a new and improved international legal standard and framework for the detention of terrorists.

If you believe the conflict will endure for decades, it makes sense that you would seek to institutionalize, both domestically and internationally, the legal authorities and procedures for prosecuting this war.  That was the genius of the 1947 National Security Act, the creation of NATO, the United Nations, the World Bank, and the complex of international institutions and laws that helped us win the Cold War in 1989.

Because persons in authority, parties in Congress, and Presidents in the White House all change, and because the threats to our country are very real, the American Security Project’s New American Arsenal recommended creating the kind of lasting international legal framework that has been missing, including “a consensus about:

• the legal status of captured terrorists; and
• the obligations of states to combat extremists on their own soil as well as a reciprocal set of rights for the international community if states fail to live up to their obligations.

This isn’t mushy-multilateralism, but a hard-headed approach to what it will take to keep America safe.

The alternative is to continue the ad hoc approach of the Bush administration which only serves to undermine the credibility of our commitment to the rule of law and risks releasing determined terrorists to act again.  Just two weeks ago, a Kuwaiti released from Guantanamo Bay was linked to a suicide bombing in Mosul, Iraq.

We are, at our core, a nation of laws.  If our laws aren’t adequate to the challenges at hand, then they need to be revised, but they can not–and must not–be ignored.  Nor can we afford to let terrorists go free.  Our concern over due-process is not simply about the rights of detainees, it is about preserving our identity, defending our way of life, and defeating the terrorists.

The only workable solution is to, at long last, right the ship and create the enduring institutions, domestically and internationally, to deal with the threats that will characterize conflict in the coming century.  We’ve waited seven years already, we can’t afford to wait much longer.

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