Less Safe, Less Free: Why America Is Losing the War on Terror – Color of Law

The current issue is always free to everyone

–Judge Damon Keith, 2002, declaring unconstitutional, Attorney General Ashcroft’s policy of closing to the public all immigration proceedings involving persons of interest to the 9/11 investigation

“I don’t believe in Al Qaeda; I don’t believe in the boogie man, the Loch Ness monster. I don’t believe you, because you all said the same s*** about the Black Panther Party.”

America’s so-called war on terror reminds me of this Orwellian concept of perpetual war. One can make the argument that both are used to manipulate the citizenry through secrecy and coercion, justify a waste of precious resources, and rationalize the purging of basic civil liberties.

Under the preventive paradigm, nations are attacked and suspects are kidnapped, tortured, detained and prosecuted, not based upon what they have done, but on what they could do in the future. Under this warped logic, the usual cost and benefit analysis is eschewed on the grounds that the stakes are too catastrophic. In other words, as its proponents would argue, we must do whatever is necessary in order to prevent deadly terrorist attacks and fight the people who commit them. Decisions to take action are the result of a warped calculation based on hunches, driven by suspicion and hysteria, and rife with abuse.

Supporters of the preventive paradigm cannot point to any successes as a justification for its coercive methods and the elimination of the rule of law. The vast majority of the detainees at Guantanamo (95 percent) are not members of the Taliban or al Qaeda, and draconian immigration reforms have not unearthed a single terrorist. And almost no terrorists have been brought to justice.

The authors propose constructive solutions to undoing the harm created by preventive war, including the respect for the rule of law and international human rights legal principles within U.S. borders, the elimination of overseas military bases, the use of diplomacy rather than war and coercion, and international cooperation. Further, the authors call for the U.S. to embrace the International Criminal Court, which Bush has sought to undermine by not participating in it, and seeking to make American citizens immune from prosecution.