HOLY LAND FOUNDATION: excerpts from "Why We're Losing the 'War on Terror'" by Cole and Lobel

In The Nation for September 24, 2007, an article by DAVID COLE and JULES LOBEL sheds light on much of the travesty of the Holy Land Foundation Trial. The title is, “Why We’re Losing the War on Terror.” The article is at: http://www.thenation.com/doc/20070924/cole_lobel

Here are some pertinent excerpts:

President George W. Bush is fond of reminding us that no terrorist attacks have occurred on domestic soil since 9/11…. Meanwhile, despite the Bush Administration’s boasts, the total number of people it has convicted of engaging in a terrorist act since 9/11 is one (Richard Reid, the shoe bomber) . . .

“Going on offense,” or the “paradigm of prevention,” as then-Attorney General John Ashcroft dubbed it, has touched all of us . . .

In the name of the “preventive paradigm,” thousands of Arab and Muslim immigrants have been singled out, essentially on the basis of their ethnicity or religion, for special treatment, including mandatory registration, FBI interviews and preventive detention. Businesses have been served with more than 100,000 “national security letters,” which permit the FBI to demand records on customers without a court order or individualized basis for suspicion. We have all been subjected to unprecedented secrecy about what elected officials are doing in our name while simultaneously suffering unprecedented official intrusion into our private lives by increased video surveillance, warrantless wiretapping and data-mining . . .

The Bush strategy turns the law’s traditional approach to state coercion on its head. With narrow exceptions, the rule of law reserves invasions of privacy, detention, punishment and use of military force for those who have been shown—on the basis of sound evidence and fair procedures—to have committed or to be plotting some wrong. The police can tap phones or search homes, but only when there is probable cause to believe that a crime has been committed and that the search is likely to find evidence of the crime . . .

These bedrock legal requirements are a hindrance to “going on offense.” Accordingly, the Administration has asserted sweeping executive discretion, eschewed questions of guilt or innocence and substituted secrecy and speculation for accountability and verifiable fact. Where the rule of law demands fair and open procedures, the preventive paradigm employs truncated processes often conducted in secret, denying the accused a meaningful opportunity to respond. The need for pre-emptive action is said to justify secrecy and shortcuts, whatever the cost to innocents. Where the rule of law demands that people be held liable only for their own actions, the Administration has frequently employed guilt by association and ethnic profiling to target suspected future wrongdoers . . .

Overall, the government’s success rate in cases alleging terrorist charges since 9/11 is only 29 percent, compared with a 92 percent conviction rate for felonies. This is an astounding statistic, because presumably federal juries are not predisposed to sympathize with Arab or Muslim defendants accused of terrorism. But when one prosecutes prematurely, failure is often the result.

The government’s “preventive” immigration initiatives have come up even more empty-handed. After 9/11 the Bush Administration called in 80,000 foreign nationals for fingerprinting, photographing and “special registration” simply because they came from predominantly Arab or Muslim countries; sought out another 8,000 young men from the same countries for FBI interviews; and placed more than 5,000 foreign nationals here in preventive detention. Yet as of September 2007, not one of these people stands convicted of a terrorist crime. The government’s record, in what is surely the largest campaign of ethnic profiling since the Japanese internment of World War II, is 0 for 93,000 . . .

The Bush Administration just doesn’t get it . . . .The proposition that judicial processes and international accountability—the very essence of the rule of law—are to be dismissed as a strategy of the weak, aligned with terrorism itself, makes clear that the Administration has come to view the rule of law as an obstacle, not an asset, in its effort to protect us from terrorist attack . . .

The rule of law in no way precludes a state from defending itself from terrorists but requires that it do so within constraints. And properly understood, those constraints are assets, not obstacles. Aharon Barak, who recently retired as president of Israel’s Supreme Court, said it best in a case forbidding the use of “moderate physical pressure” in interrogating Palestinian terror suspects:

A democracy must sometimes fight terror with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.

The preventive paradigm has compromised our spirit, strengthened our enemies and left us less free and less safe. If we are ready to learn from our mistakes, however, there is a better way to defend ourselves—through, rather than despite, a recommitment to the rule of law.