Opinion Forum

Getting It Wrong on Terrorism

January 31st, 2010

Michael Hayden is a retired U.S. Air Force general and former Director of both the National Security Agency and the Central Intelligence Agency. He has a column today in The Washington Post that anyone who cares about the war on terror should read. Hayden begins with the specific case of the Christmas Day bomber:

In the war on terrorism, this country faces an enemy whose theory of warfare ends the hard-won distinction in modern thought between combatant and noncombatant. In doing that for which we have created government — ensuring life, liberty and the pursuit of happiness — how can we be adequately aggressive to ensure the first value, without unduly threatening the other two? This is hard. And people don’t have to be lazy or stupid to get it wrong.

Hayden says that “We got it wrong in Detroit on Christmas Day.” He continues:

We allowed an enemy combatant the protections of our Constitution before we had adequately interrogated him. Umar Farouk Abdulmutallab is not “an isolated extremist.” He is the tip of the spear of a complex al-Qaeda plot to kill Americans in our homeland.

The remainder of the column discusses the details of the Abdulmutallab case and then takes apart Administration policies on handling captured terrorists, CIA interrogation, irresponsible treatment of sensitive information, and retribution against CIA personnel for doing their jobs.

There are few people as knowledgeable as General Hayden and virtually none who will speak out with candor and honesty. His column is a must-read.

Articles written by Tom Carter
Tags: CIA, Hayden, interrogation, Miranda, NSA, terrorists, trials
Categories: News, Politics | Comments (13) | Home

13 Responses to “Getting It Wrong on Terrorism”

Lisa | January 31st, 2010 at 6:03 pm

General Hayden’s article is a great one. He accurately and very authoritatively describes the irresponsible, flawed and lackadaisical approach of the current administration’s approach to terrorism. The Obama administration’s priority of the interrogation of CIA personnel for their alleged 2004 abuses outlined in the IG report taking precedence over the interrogation of al-Qaeda gives us all a very clear and frightening picture of the administration incompetency or worse its alliance.

Bob Nelson | February 1st, 2010 at 9:06 am

Hi, all,

I’ve been lurking here for a while, getting the temperature of the place. I hope you don’t mind a bit of input from a bleeding-heart, card-carrying Socialist (well… once upon a time…)

“We allowed an enemy combatant the protections of our Constitution before we had adequately interrogated him,” says Mr Hayden. Please read that sentence. And then read it again.

It is pure nonsense.

If legal protections do not apply from the first instant, then they do not apply at all. If someone must decide whether or not Constitutional rights are to be applied… then those right DO NOT apply.

Would you give me the power to decide whether or not you have a right to a trial? If I decide that you do not have that right, then you go to jail indefinitely. For what crime? … … No matter.

You… go… to… jail… forever!

Tom | February 1st, 2010 at 5:58 pm

Bob, all opinions are welcome. And in fact, I agree with what you’ve written. Where we differ is that I don’t think we should treat alien unprivileged enemy belligerents (the current awkward term created in the Military Commissions Act of 2009) as though they were entitled to constitutional protections enjoyed by American citizens and legal residents. They should be treated as enemy belligerents from the moment of capture and tried before military commissions, as provided for in law.

What makes no sense at all is to treat some as common criminals and some as enemy belligerents. It gets really weird when the poster boy for enemy belligerents, Khalid Sheikh Mohammed, gets sent to federal court and treated like a U.S. citizen.

The military commissions also provide greater rights and protections than captured terrorists receive in almost all other countries. That system can work well, if the Obama Administration will use it.

Bob Nelson | February 2nd, 2010 at 6:40 am

Tom,

I have a problem with “as though they were entitled to constitutional protections enjoyed by American citizens and legal residents. ”

The Constitution applies to “persons” and to “people”. Quite pointedly, it does not often invoke the word “citizen”. If a person is under US authority, the Constitution applies. And thank God for that! Otherwise, we would all be susceptible to not be accorded our rights. After all… if we haven’t proved that we’re citizens, then we would not have citizens’ rights… and without citizens’ rights we would be unable to prove that we are citizens! Catch-22… with habeas corpus out the window!

I personally find absurd the contortions of the previous administration, trying to avoid the application of the Constitution and the Geneva Conventions. What abysmal lack of confidence in the rule of law. What an abysmal lack of confidence in American institutions!

The Conventions are very open in their definition of a POW. If the previous administration had had the slightest foresight, and had installed a triage system, designating swept-up captives as either “innocent bystanders” (to be sent home), or as POWs, then we would never have given our enemies the immense propaganda advantage that is Guantanamo… while holding our prisoners indefinitely! — remember that a POW may be held until the end of hostilities… until al Qaeda surrenders… until hell freezes over!.

Khalid Sheik Mohammed is not being treated like a US citizen. He is being treated like any person accused of a crime, within the American criminal justice system. Any person!

America is proving to the world that American justice is for all, not reserved for a select few.

There is every reason to imagine that the criminal justice system will return a guilty verdict and a death sentence.

Tom | February 2nd, 2010 at 11:55 am

Bob, I think you’re talking about what you wish were true. The fact is, under several court rulings, the Military Commissions Act of 2006 (as amended by the Act of 2009), and the Geneva Conventions, any alien terrorist can be treated as an unprivileged enemy belligerent. That means he is tried by a military commission. That’s completely legal and constitutional.

The strange behavior of the Administration is that they’re treating some of them, like KSM et al., as common criminals, and they’re treating others as alien unprivileged enemy belligerents. That’s totally incoherent. While the decision on how to classify and try these terrorists is within the President’s authority, he needs to get his act together, start behaving consistently in this regard, and listen to what the majority of the people want.

You say there’s “every reason to imagine” (imagine?) that KSM will be found guilty and sentenced to death. Really? What do you base that on? We all know he’s guilty, he’s said it over and over, he’s asked for the death penalty so he can become a martyr…. However, that doesn’t mean he’ll be found guilty and appropriately sentenced. You can bet the slick, publicity-hungry lawyers in the $2,000 suits are just itching to get their paws on these cases. If there’s any possibility, any loophole they can use to get an acquittal or a plea-bargained reduced sentence, they’ll do it. And if that happens, my friend, President Obama and a whole lot of Democrats better start packing their bags because they’re headed home for good.

Bob Nelson | February 4th, 2010 at 5:43 am

I don’t say that “unprivileged enemy belligerent” is illegal. I say that it is stupid. The condemnation rate in Federal courts is 100%. I say again: 100%. Two thousand dollar suits notwithstanding: 100%. With over three hundred convictions. Federal prosecutors know their business!

POWs may be detained, conform to the Geneva Conventions, until the end of hostilities! As al Qaeda does not look to be surrendering any time soon, that is equivalent to “eternal detention”.

So why, for God’s sake, must we go embarrass ourselves before the civilized world, with stupidity like “unprivileged enemy belligerent”??

I agree that there must be a consistent, logical process for deciding how to pursue a terrorist. It seems a simple question to me: a prisoner taken on the battlefield should go through military procedures; a prisoner taken in a civilian context should be treated as a common criminal.

Brianna | February 4th, 2010 at 12:47 pm

“I don’t say that “unprivileged enemy belligerent” is illegal. I say that it is stupid. The condemnation rate in Federal courts is 100%. I say again: 100%. Two thousand dollar suits notwithstanding: 100%. With over three hundred convictions. Federal prosecutors know their business!”

> Well, if they’re going to get convicted either way, then what difference does it make?

“POWs may be detained, conform to the Geneva Conventions, until the end of hostilities! As al Qaeda does not look to be surrendering any time soon, that is equivalent to “eternal detention”.”

> That’s al Qaeda’s problem, not the US’s. We are allowed to detain these people in accordance with the internationally accepted laws of war. The fact that their side doesn’t want to quit is not a good reason to deviate from those rules. Quite the opposite, in fact, as it would probably just provide them with yet another disincentive to surrender.

“So why, for God’s sake, must we go embarrass ourselves before the civilized world, with stupidity like “unprivileged enemy belligerent”??”

> They are unprivileged enemy belligerents. That’s what we call people who dress up in civilian clothes, waltz into a country under false pretexts, and then attempt to kill civilians and other non-combatants. That is a dictionary definition, not a piece of stupidity or legal wrangling.

“I agree that there must be a consistent, logical process for deciding how to pursue a terrorist. It seems a simple question to me: a prisoner taken on the battlefield should go through military procedures; a prisoner taken in a civilian context should be treated as a common criminal.”

> Just because unprivileged enemy belligerents deliberately attack in civilian settings does not mean that they are not foot soldiers in a war. We should not let the fact that these people deliberately let themselves be taken in non-combat settings, in all likelihood in a deliberate attempt to dredge up reactions similar to your own amongst the enemy populace, allow us to change how we view them or deal with them.

Bob Nelson | February 5th, 2010 at 3:32 am

Brianna,

> Well, if they’re going to get convicted either way, then what difference does it make?

>> It is called “The Rule of Law”. The justice system is not applied ad hoc.

> That’s al Qaeda’s problem, not the US’s. We are allowed to detain these people in accordance with the internationally accepted laws of war.

>> No. “Unprivileged enemy belligerent” is an American term, not an international one. It was invented by the Bush administration in a totally useless attempt to circumvent the Geneva Conventions. Use of this category puts the US outside international law, for no good reason!

>>So… this is a US problem. We could be holding these people indefinitely and legally. Instead, for no advantage whatsoever, we are holding indefinitely and illegally.

> They are unprivileged enemy belligerents. That’s what we call people who dress up in civilian clothes, waltz into a country under false pretexts, and then attempt to kill civilians and other non-combatants.

>> No. They are “Prisoners Of War”. The category is very clearly — and very openly — defined in the Conventions.

>> Simply labeling them “POW” would carry huge advantages, not the least of which would be to make it clear to them, to the world, and to potential al Qaeda recruits that they will be freed only when al Qaeda lays down its arms.

> Just because unprivileged enemy belligerents deliberately attack in civilian settings does not mean that they are not foot soldiers in a war.
>> Exactly! And captured “foot soldiers in a war” become “Prisoners of War”…

Brianna | February 5th, 2010 at 8:49 am

“The National Defense Authorization Act, passed yesterday by the House of Representatives, includes a largely overlooked provision that modifies the Military Commissions Act of 2006, which allows the government to try certain terror suspects — now called “unprivileged enemy belligerents” instead of the Bush-era term, “unlawful enemy combatants…”

http://www.firejohnyoo.org/2009/10/unprivileged-enemy-belligerent.html

So we see that “unprivileged enemy belligerent” and “unlawful enemy combatant” are the same thing

“The phrase “unlawful combatant” does not appear in the Third Geneva Convention (GCIII).[1] However, Article 4 of GCIII does describe categories under which a person may be entitled to POW status; and there are other international treaties that deny lawful combatant status for mercenaries and children. In the United States, the Military Commissions Act of 2006 codified the legal definition of this term and invested the U.S. President with broad discretion to determine whether a person may be designated an unlawful enemy combatant under United States law. The assumption that such a category as unlawful combatant exists is not contradicted by the findings of the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgment quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, “There is no intermediate status; nobody in enemy hands can be outside the law,”[4] because in the opinion of the ICRC, “If civilians directly engage in hostilities, they are considered ‘unlawful’ or ‘unprivileged’ combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action”.[1][5]”

http://en.wikipedia.org/wiki/Unlawful_combatant

And we see that such a category, althougb not specifically outlined by the geneva conventions, is considered to be valid under international law.

POWs are soliders in uniform who attack military targets. Terrorists, whether we call them “unlawful enemy combatants” or “unprivileged enemy belligerents” do not fall into this category, and treating them as though they do is foolish, as well as undeserved on their part.

Brianna | February 5th, 2010 at 8:56 am

P.S. “Unlawful enemy combatant” was defined by the Bush administration. The term “Unprivileged enemy belligerent” was actually made up by the Obama administration. Get your facts straight.

Additionally, your jibes about the rule of law are misleading. The question here is not whether they will be tried or simply taken out back and shot. The question is whether it is more appropriate to try them in a civilian court or a military one. I say that considering the crimes under discussion, the fact that they are not citizens, and the fact that al Qaeda left a smoking hole in the middle of Manhattan, that they should not be entitled to all the treatment we would grant honorable soldiers and that they belong in a military court. You’re free to argue civilian court and honorable POW status, but not free to say that we are arguing against the rule of law and that you are arguing for it.

Tom | February 5th, 2010 at 9:17 am

Exactly right, Brianna. You beat me to the punch on this one — I’ve got nothing to add.

Bob Nelson | February 7th, 2010 at 12:25 am

Brianna,

“…there are other international treaties that deny lawful combatant status for mercenaries and children.”

I don’t know these treaties. Could you cite them please? Do they mean that there are yet other categories, besides POW or unlawful combatant?

Please keep in mind that the US is a signatory of the Geneva Conventions. We, as a nation, pledged to obey those Conventions. If we do not respect those Conventions, our solemn oath… is empty.

My “Rule of Law” remark was not meant to be snarky. It is simple: A civilian arrested in a civilian context is tried in a civilian court. There is no legal reason for that person to be tried in a military tribunal.

I do not understand “honorable POW status”. A prisoner is a POW or they are something else. “Honor” is not involved. Captured Waffen SS were POWs.

Finally… and fundamentally… why don’t you want these prisoners to be categorized “POW”? That label is entirely advantageous for us. The prisoner may be held indefinitely — until the enemy agrees to peace terms. Since al Qaeda is not ever going to do that… We can hold a POW eternally, and legally. So I do not understand why anyone would want to place these prisoners in any other category. Why?

Tom | February 7th, 2010 at 8:45 am

Bob, as one who spent his life under the rules of the Geneva Conventions and who has studied them extensively, I can tell you for certain that there’s enough wiggle room to define things in lots of different ways. Whatever your preferred position, you can usually find a way to support it. But one thing is clear: captured terrorists are not required to be treated as POWs. They can be treated as “unprivileged combatants” and tried by military commissions, military tribuanals, or regular criminal courts. The Bush Administration did not act in violation of the GC, and even the very few cases of “torture” (like waterboarding) that folks have made so much hay with are mild compared to what other nations have done and still do.

Beyond the GC, which we are not in violation of, the Military Commissions Act of 2006/2009 established appropriate and legal methods of dealing with captured terrorists. The issue at hand is not the Geneva Conventions or the U.S. Constitution, and it never really has been. The issue is the policies of the Bush and Obama Administrations. Bush is the past; Obama is the present. It’s time for the Obama Administration to start treating all captured terrorists as the unprivileged enemy combatants they are instead of picking and choosing a few to treat as common criminals. It couldn’t be more simple, really.

As absurd as this sounds, the Obama Administration must start treating the defense of our country as more important than the rights of captured terrorists, however defined. It’s crystal clear that this can be done legally and constitutionally; all the President has to do is get his priorities straight. If he’s listening to the people at all, he should know that this is vital to his political survival.