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How Not to End the War on Terror: the Bin Laden Effect

And 5 symbolic steps Obama can take to show that he's serious about ending the war on terror.

| Tue Jun. 21, 2011 6:00 AM EDT

Lindh's mistreatment in Afghanistan and subsequent sentencing here were essentially acts of symbolic revenge for the tragic death of CIA agent Mike Spann, the first official American casualty in what was already being called the Global War on Terror. His sentence was also meant as a warning to others who might consider his path.

As it happened, the judge in charge of the case acknowledged that there was absolutely no evidence Lindh had been involved in Spann's murder. Bewilderingly enough, he nonetheless allowed the prosecutor to tie Lindh inexorably to Spann's murder through the emotional testimony of Spann's father at sentencing.

The US government was sending a message. If this country would punish one of its own in such a fashion without evidence of a crime or even of theoretical allegiance to the idea of jihad against the West, what wouldn't it do to its foreign enemies?

In prison, Lindh has since committed himself to the quiet life of a scholar of Islam. Many who have followed this case think that, at age 30, he should be returned to his family.

Lindh's release would be a signal that the United States was ready to return to an era of calm justice and that the war on terror, with all its excesses, was truly coming to an end.

3. Create a rehabilitation program for releasing Guantanamo detainees currently assigned to indefinite detention: In the same spirit, it's time to signal that, along with the war on terror, the paroxysm of fears that led us to detain individuals who had not committed crimes, but were otherwise deemed harmful, has come to an end. The Obama administration's most recent directive on Guantanamo follows its long-hinted-at intention to hold approximately four-dozen Guantanamo detainees in indefinite detention for a variety of reasons. Bottom line: although there is insufficient evidence to convict them, administration officials have determined that each of them could pose a danger to this country, if released.

Under US law, detention without trial poses constitutional problems, which is why Guantanamo detainees were granted habeas corpus rights by the Supreme Court. Similarly, under the laws of war, the detention of prisoners is only justified while hostilities are ongoing. If there really is no "war" on terror, it is hard to justify holding detainees indefinitely without a fair adjudication of their rights in a court of law.

Why not, then, consider creating an American version of the de-radicalization or rehabilitation programs that flourish elsewhere in the world—notably, for example in Indonesia—as a prelude to release for those where the evidence for a trial is absent? A rehabilitation program might steer individuals towards non-violent behavior, whatever their ideological leanings; it might re-educate them on the subject of Islam; it might introduce notions of rights and liberties. Religious leaders, psychologists, and counterterrorism officials could fashion such a program jointly as they do elsewhere in the world. President Obama surprisingly inserted the word "rehabilitation" in his March 2011 directive on the future of Guantánamo ("Executive Order—Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force"). Why not use this milestone moment in the war on terror to follow up in a concrete fashion?

4. Revisit the issue of prosecuting those responsible for America's offshore torture policies in the Bush years: The Obama administration made a decision not to investigate or prosecute the creators of the torture policy that defined the Bush administration's interrogation tactics in its war on terror. They did so, its officials claimed, in an effort to focus on the overwhelming issues the new presidency had to confront. They were visibly eager to avoid stoking a bitter partisan battle that they feared might further divide the country.

They banked instead on the idea that the lawyers and politicians responsible for that torture policy and the "black sites" and "extraordinary renditions" that went with it would quietly fade into the woodwork. This has obviously not been the case. On the contrary, in recent months former officials and members of the Bush administration have openly re-embraced those policies. In the aftermath of bin Laden's death, as if on cue, they immediately flooded the newspapers and air waves with unsupportable claims that torture had led Washington to the al-Qaeda leader and should be a crucial part of the American arsenal in the future.

Forget for a moment that torture has still not been shown to have extracted valuable information (not otherwise available) from terror suspects. We know, in fact, that on a number of occasions it led investigators down the wrong path. More importantly, it was a symptom of the war-on-terror frenzy that gripped this country and led it down the wrong path.

We now have all the proof we need that pretending torture never happened, legally speaking, only helps keep us embroiled in that "war" and the emotions it evokes. If the war on terror is ever to end, then tolerance for the support of torture has to end as well. Nothing would accomplish this better than the actual prosecution of the American crimes of that era—or at the very least, the investigation and official condemnation of those who sidestepped the constitution and diminished the moral standing of the country at home and abroad.

5. Restore permanently to the Department of Justice responsibility for trying terrorists from around the globe: Since the fall of 2001, the Justice Department has been largely deprived of its portfolio for trying terrorists captured outside the United States. With the exception perhaps of cases involving terror attacks on military targets, there is no reason Justice should not prosecute such cases, as in the 1990s it successfully prosecuted the conspirators who first attacked the World Trade Center, as it did in the African embassy bombings cases, and as it has recently done in Chicago in the case of Tahawwur Hussain Rana, who was convicted of providing material support to the terrorist group Lashkar-e-Taiba. (He was acquitted of conspiracy charges in the Mumbai bombing.) Since 9/11, the ability of judges, prosecutors, and defense attorneys to understand terrorism cases and try them responsibly has, if anything, increased immeasurably, while the military commissions system instituted by the Bush administration at Guantanamo and kept in place by President Obama has crashed disastrously and repeatedly on the shoals of politics, misinformation, and faulty procedure.

Whatever a commission might do when it came to bringing the war on terror officially to an end, this is the moment—with the death of bin Laden, the Arab uprisings, and the 10th anniversary of 9/11—to do it and to begin to seek ways to defend America even while guiding us back to our true self: a country with respect for the law, restraint when it comes to the use of force, and rights for all.

Karen J. Greenberg is the executive director of the New York University Center on Law and Security, author of The Least Worst Place: Guantanamo's First One Hundred Days, editor of The Torture Debate in America, and a frequent contributor to Research for this piece was contributed by Susan Quatrone, Gil Shefer, Camilla McFarland, and Dominic Saglibene from the NYU Center on Law and Security. To listen to Timothy MacBain's latest TomCast audio interview in which Greenberg discusses how fear of terrorism increases presidential power, click here, or download it to your iPod here. To stay on top of important articles like these, sign up to receive the latest updates from here.

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