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The D.C. Gang That Couldn't Shoot Straight

September 19, 2004|David Cole | David Cole is a law professor at Georgetown University and author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism" (New Press, 2003).

President Bush has staked his claim for reelection on his performance in the war on terrorism. But are we safer?

The war on terrorism certainly has not made the world a safer place. For a brief moment this year, the State Department claimed that terrorism incidents worldwide had fallen -- until it admitted a week later that it had miscounted and that in fact terrorist incidents were on the rise.

And what of the situation at home? Thankfully, there has not been a terrorist attack on U.S. soil since Sept. 11. But despite Atty. Gen. John Ashcroft's insistence that "domestic warriors" at the federal, state and local levels have used the Patriot Act to "hunt down Al Qaeda, destroy their safe haven and save American lives," the record offers little basis for such a claim.

Consider the centerpiece of the domestic war on terrorism -- preventive detention. In the first seven weeks after Sept. 11, the Justice Department admitted to detaining nearly 1,200 men as "suspected terrorists," nearly all foreign nationals. It subsequently adopted two anti-terrorism immigration initiatives that were aimed at men from Arab and Muslim countries on the theory that they were more likely to be terrorists. Those programs led to the detention of nearly 4,000 more people.

Yet of these, not one stands convicted of any terrorist offense. The administration's record is 0 for 5,000.

In all, the Justice Department boasts that its terrorism investigations have led to more than 300 criminal indictments, more than 100 convictions and more than 500 deportation orders. But the convictions are almost all for minor charges, not terrorism. Researchers at Syracuse University found that the median sentence imposed in cases labeled "terrorist" by the Justice Department in the two years after 9/11 was 14 days.

As for the 500 deportations, the Justice Department fails to note that most were carried out under a policy that specifically barred deportation unless an individual was first cleared of any connection to terrorism. These are misses, not hits.

The government has brought a number of "terrorism" prosecutions since Sept. 11, frequently announced in national news conferences. But almost all of these indictments charge not actual terrorism but "material support" for a group that the government has labeled "terrorist." Under the government's theory, the support need have nothing to do with furthering a terrorist act. In one case, the government argued that the law barred a U.S. group from offering human rights training to an organization in Turkey, a group the U.S. designated as terrorist.

Many of the government's most prominent cases have disintegrated under close scrutiny, like that of Capt. James Joseph Yee, the Muslim chaplain at Guantanamo, whose case was dismissed. Or the case of Sami Omar Al-Hussayen, who was acquitted when the evidence showed only that he ran a website with links to other websites -- pure free speech. Or Brandon Mayfield, a Muslim convert , arrested on assertions that his fingerprints had been found at the scene of the Madrid bombings, only to be released two weeks later when it turned out the fingerprints were not his.

The government's only jury conviction for terrorism in a post-9/11 case was thrown out in Detroit on Sept. 2 when it was shown that the prosecutor had failed to disclose that the government's principal witness had lied on the stand.

Much of this preventive strategy was predicated on the supposition that there were Al Qaeda cells in the U.S. But three years later, the Justice Department has not identified a single such cell. The closest thing it can point to are six men from Lackawanna, N.Y, who attended an Al Qaeda training camp in Afghanistan but undertook no activity in furtherance of any illegal, much less terrorist, conduct upon their return to the U.S.

The only criminal conviction involving an actual terrorist incident to stand since Sept. 11 is that of "shoe bomber" Richard Reid, who was captured not through any work by the FBI, Department of Homeland Security or Justice Department but simply because an alert flight attendant noticed him trying to light his shoe with matches.

So, in the end, the war on terrorism, at least at home, has netted almost no actual terrorists. Improved airport and border security and increased resources targeting terrorism have no doubt helped make us safer. It is conceivable that the detentions have led to important intelligence, although if so, one would expect to see more successful terrorism prosecutions. And it's possible that these measures have deterred some terrorists from coming here to attack us -- but that is ultimately unknowable.

Meanwhile, what is known is that the U.S. has unfairly targeted innocent Arabs and Muslims and has disregarded fundamental principles of law in doing so, fueling unprecedented resentment here and abroad.

In the long run, that resentment is the greatest threat to our national security.

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