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The Shortsightedness of Fear-Based Counterterrorism Policies that Violate Human Rights: Learning from the U.S. Experience

After the September 11 attacks, the United States instituted a number of counterterrorism policies driven by fear. A network of secret CIA interrogation sites was set up so that officers and contractors could gather human intelligence using “enhanced interrogation techniques” that included beatings, forced anal “feeding,” prolonged sleep deprivation, and sensory overload.1 Abuses also occurred in acknowledged detention centers such as Guantanamo Bay, where the United States continues to hold a small number of terrorism suspects without charge or trial. A handful of others are being prosecuted by a broken military commission system2 that lacks many important procedural safeguards found in civilian courts. Many other suspects are simply killed by drone strikes, which are justified by dangerously expansive and unaccepted interpretations of international law. 

With the election of Donald Trump, who has touted the use of torture, Guantanamo, and argued for killing the family members of terrorism suspects, the United States is at risk of once again turning to ineffective policies that violate human rights. Although these fear-based policies offer sound bites for politicians trying to appear tough on terrorism and ease fears of the next attack, they often undermine the very goals they are intended to achieve. Torture, indefinite detention, prosecution by military commission, and unlawful drone strikes have not only fueled terrorist propaganda, but have made it more difficult for the United States to disrupt terrorist networks and prevent future attacks. This essay explains how these purportedly “tough policies” have been counterproductive to America’s long-term counterterrorism goals and why those who really want to be tough on terrorism should instead pursue effective policies that respect human rights. After all, there is nothing tough about policies that do not work. 

They make it harder to keep terrorists behind bars:

The use of law of war detention, military commissions, and torture undermine the effort to keep dangerous terrorists behind bars. Law of war detention ends when hostilities are over or, in some cases, even sooner. This means that individuals held in detention under the law of war must be released at the end of the war regardless of whether they continue to pose a threat. But dangerous individuals convicted of crimes can be held for the duration of their sentences, which often last decades or more. For example, Zacarias Moussaoui, a 9/11 conspirator, was sentenced in federal court to life in prison in 2006. Similarly, al-Qaeda propagandist and Osama bin Laden’s son-in-law Sulaiman Abu Ghaith was convicted in federal court and sentenced to life in prison in 2014.  While detention under the law of war might sound tough because of the term “war,” in reality, such detention is not an effective way to keep dangerous terrorists behind bars in the long run. Wartime detainees must be released within a reasonable period of time after a conflict ends. For individuals who pose a long-term threat, such temporary detention is not an effective solution. 

Similarly, ad hoc military commissions have proven themselves to be ineffective at securing convictions that stick. The handful of cases currently in the military commission system at Guantanamo have dragged on for years with little justice to show for it. The trial of the September 11 defendants has been in pretrial hearings since 2012 and is not even expected to begin for years. Of the eight military commission convictions so far, three have been overturned completely, and one partially. Wasting years and years getting convictions that are then overturned is not tough, it is unwise and counterproductive. 

Perhaps most problematic of all, detainee mistreatment and torture undermine counterterrorism efforts by tainting evidence that might otherwise be used to secure lasting and fair convictions. Authorities may have to forego prosecutions, evidence may be tossed out, and convictions may be overturned. For example, Mohammed al-Qahtani, an al-Qaeda operative who was supposed to be the “20th hijacker” for the September 11 attacks, could not be prosecuted because he was tortured at Guantanamo. Al-Qahtani is among a group of Guantanamo detainees that the U.S. government is seeking to keep in indefinite detention but will not charge with any crimes because the evidence against them was derived from torture. Additionally, multiple countries have refused to extradite terror suspects to the United States based on previous American involvement in their torture. 

Lost intelligence and wasted resources:

Experienced interrogators and intelligence experts will tell you that effective interrogation is based on proven, studied techniques that do not include torture and abuse.3 In fact, torture can make it more difficult for a person to remember information. According to neuroscience professor Shane O’Mara, torture and abuse directly affect the parts of the brain that are responsible for memory, inhibiting their performance and preventing accurate recall. Torture also causes people to provide false or inaccurate information to make the torture stop. In real cases, torture has prevented interrogators from getting important information and led them astray, wasting valuable time and resources and putting lives at risk. 

For example, when the CIA tortured Khalid Sheikh Mohammed (the alleged planner of the September 11 attacks, also known as KSM) in March 2003, he told them that he had sent operatives to Montana to recruit African Americans to launch attacks within the United States. Three months later, in June 2003, he admitted he had made up the plot to appease his torturers’ demand for information in order to make the torture stop. CIA communications show that analysts did not even question the veracity of the information until May 2003 and had not concluded that it was fabricated until June (possibly after KSM admitted as much). The torture that led to this false information took days of interrogation time and any investigation of KSM’s claims before he recanted undoubtedly wasted valuable time and resources better devoted to other work.

Drone strikes also come at a cost of lost intelligence. Intelligence and national security experts from across the political spectrum have explained that capturing a suspected terrorist provides the best opportunity for gathering necessary intelligence, which is lost if that person is killed in a drone strike. As Micah Zenko of the Council on Foreign Relations writes: “We can never know what information they held, and whether it would have been useful to better understanding the tactics, techniques, and procedures of terrorist organizations or would have revealed any external plotting.” In 2015, General Joseph Votel, then head of U.S. Special Operations Command said, “We get a lot more [intelligence] when we actually capture somebody or we capture material than we do when we kill someone.” Daniel Byman of the Brookings Institution echoes these concerns, noting: “Capturing terrorists offers both tactical and diplomatic rewards. Dead men tell no tales, and a dead terrorist carries his secrets to the grave.”

Propaganda and recruitment:

Rather than reducing the terrorist threat, Guantanamo, torture, and drone strikes have all been a boon for terrorist propaganda and recruitment.4 Since it opened, Guantanamo has been used in al-Qaeda propaganda to turn its audience against the United States – to portray the United States as hypocritical, abusive, and at war against Islam. American human rights abuses help al-Qaeda portray itself as the underdog facing an imperial Goliath and invoke a justification of “defensive jihad” – the obligation for Muslims to defend their faith and the Muslim community from attack. This propaganda also cites the U.S. government’s post-9/11 actions to undermine the United States’ image as a beacon of human rights and religious tolerance. For a conflict in which the “hearts and minds” of local populations are so important, this is a major problem. Gallup polling data from the Middle East/North Africa region shows that closing Guantanamo would have a significant positive effect on those populations’ view of the United States.

Similarly, abuse and torture of detainees have led to a recruitment boon for terrorist groups. For example, a 2006 U.S. State Department cable noted that the single biggest driver of foreign fighters traveling to Iraq to fight the United States was the detainee abuses at Guantanamo, Abu Ghraib, and elsewhere. In a recent study, the Open Society Foundations found that torture and abuse were a factor in local grievances in Afghanistan as well, contributing to the growth and gains of the Taliban and other insurgent groups in the country.  

Likewise, drone strikes in Yemen, Pakistan, and elsewhere have turned public opinion against the United States, helped radicalize local populations, and increased sympathy for groups like al-Qaeda. As General Stanley McChrystal has said: “What scares me about drone strikes is how they are perceived around the world. The resentment created … is much greater than the average American appreciates.” Now ISIS is using the U.S. drone program to bolster its recruitment. As former director of the CIA counterterrorism center Robert Grenier said of the U.S. drone program: “We have gone a long way down the road of creating a situation where we are creating more enemies than we are removing from the battlefield.” These concerns have been echoed by reports from investigative journalists and independent organizations. A recent report documented the various ways in which harm to civilians caused by U.S. or partner forces has a detrimental effect on U.S. counterterrorism objectives. It found that civilian harm contributed to the growth and strength of insurgent/terrorist groups, damaged the legitimacy of U.S. counterterrorism efforts, harmed relationships with strategic partners, and alienated the civilian population.  

Decreased cooperation from allies and loss of local cooperation:

Effectively countering terrorism requires cooperation from allied nations and local populations in areas where terrorists operate. Concerns about U.S. human rights abuses have led to decreased cooperation and intelligence sharing from these critical allies. For example, partner countries have refused to extradite terrorism suspects to the United States, fearing that the suspects could be tortured and/or prosecuted in the legally dubious military commission system at Guantanamo. Because the military commission system at Guantanamo is so flawed (especially compared to the competent and experienced U.S. federal courts),5 other nations have resisted extradition for suspects who could possibly be tried at Guantanamo, and have even refrained from providing evidence that might be used in military commission trials. In recent years, the United Kingdom, the Netherlands, and Iraq have all sought guarantees that extradition of terrorism suspects would not result in military commission trials, and extradition treaties with Germany, Sweden, and India all prohibit trials in extraordinary courts (like the military commissions). In July 2017, Spain transferred terrorism suspect Ali Charaf Damache to the United States for trial in U.S. federal court despite the Trump Administration’s stated preference for military commissions. Experts speculated that the administration’s choice of venue for Damache’s trial was likely due to Spanish opposition to using Guantanamo. Concern over the targeted-killing program has led to similar consequences. For example, Germany pulled back on providing data on radicalized individuals to the U.S. government because of concerns about U.S. drone strikes.

Cooperation of the local population is also critical for legitimacy, obtaining intelligence from locals, identifying and reducing threats to troops, and ultimately defeating an insurgency. As the U.S. experience in Iraq and Afghanistan has shown, human rights abuses undermine the effort to earn the support, trust, and cooperation of locals, leading to increased hostility and decreased intelligence-sharing. 

Setting a dangerous precedent for other nations:

Being tough on terrorism means thinking through the long-term consequences of a policy – including the precedent that it will set for other nations and the impact that precedent will have on national and global security in the long run. Within ten years, all countries will have the ability to acquire armed drones. The policies, practices, and legal justifications used by the United States and European nations today will be used by other states around the world tomorrow. As former CIA Director John Brennan said in 2012 when serving as President Obama’s counterterrorism advisor: “We are establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.” Former Bush Administration Legal Advisor John Bellinger concurred with this sentiment, noting in 2016, “If the United States violates or skirts international law regarding use of force, it encourages other countries … to do the same and it makes it difficult for the United States to criticize them when they do so.”

Similarly, abusing detainees or holding suspects without charge or trial makes it more difficult to protect one’s own nationals from such treatment by other states. Former U.S. Secretary of State Colin Powell encountered a version of this phenomenon when advocating for human rights on behalf of the United States. “As I went around the world talking about human rights, talking about how you can’t have indefinite detention or the use of torture to get things out of people,” Powell noted, “I always had pushback at me, ‘But look at what you were doing at Guantanamo.’”   

***

While the fear of terrorism should be acknowledged and addressed, there is a danger of succumbing to this fear. When nations act based on fear, they are more likely to put in place shortsighted, counterproductive policies that violate their legal obligations and values and benefit the enemy by hampering counterterrorism efforts. President Trump has vowed to continue many of the policies discussed here, and has instituted several of his own, including de facto bans on immigrants from several Muslim-majority countries. These fear-based policies alienate communities whose cooperation is essential to stopping terrorism and whose integration is essential to building resilience and responding to terrorist attacks effectively, not fearfully. Rather than continuing to play into the hands of terrorists, states affected by terrorism should learn from past U.S. experience, as should the administration of U.S. President Donald Trump.

1 Human Rights First: “Just the Facts: U.S. Senate Select Committee on Intelligence Torture Report.” www.humanrightsfirst.org/senate-report-cia-torture (accessed August 30, 2017).
2 Human Rights First (2016): “Fact Sheet: Some Key Facts on Military Commissions v. Federal Courts.” www.humanrightsfirst.org/resource/some-key-facts-military-­commissions-v-federal-courts (accessed August 30, 2017).
3 Human Rights First (2014): “Statement of National Security, Intelligence, and Interrogation Professionals.” www.humanrightsfirst.org/resource/statement-national-security-­intelligence-and-interrogation-professionals (accessed August 30, 2017).
4 Human Rights First: “Guantanamo Bay: A Terrorist ­Propaganda Tool.” www.humanrightsfirst.org/­guantanamo-bay-terrorist-propaganda-tool (accessed August 30, 2017).
5 Human Rights First (2017): “Fact Sheet: Trying Terrorist Suspects in Federal Court.” www.humanrightsfirst.org/resource/trying-terrorist-suspects-federal-court (accessed August 30, 2017). 

Authors

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Rita Siemion is International Legal Counsel at Human Rights First. She is an expert in the intersecting legal frameworks that govern counterterrorism operations at home and abroad, including the law of armed conflict, international human rights law and state sovereignty law. She is also an Associate Adjunct Professor at American University Washington College of Law. Before joining Human Rights First, she worked on a range of national security issues as Senior Counsel for the non-governmental organization The Constitution Project and spent several years in private practice litigating civil and human rights matters. She holds an LL.M. in National Security Law, with a certificate in International Human Rights Law, from the Georgetown University Law Center. Rita Siemion received her J.D. from the George Washington University School of Law, where she has also taught as an Adjunct Professor of Legal Research and Writing. 

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Adam Jacobson provides in-depth research, analysis and writing on national security issues for the non-governmental organiza­tion Human Rights First. He previously assisted the Vice President of Human Rights First and coordinated the activities of Human Rights First’s coalition of retired Generals and Admirals who advocate for U.S. counterterrorism policy to comply with the rule of law. He has traveled to Tunisia and Guantanamo Bay, Cuba on behalf of Human Rights First. Before joining Human Rights First, Adam spearheaded the “Generations Against Genocide” division of the Simon Wiesenthal Center. He also coordinated the Wiesenthal Center’s advocacy at the United Nations. He earned his B.A. in Political Science from the University of Mary Washington and an M.S. in Global Affairs with a concentration in Transnational Security from New York University. 

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