Losing the War on Terror

Legal expert David Cole explains why rolling back our rights won't defeat terrorists
—By Brendan Mackie

David Cole, a professor at the Georgetown University Law Center and the Nation's legal affairs correspondent, has been an outspoken critic and chronicler of the Bush administration's constitutional high jinks during the "War on Terror." In his latest book, Less Safe, Less Free: Why America Is Losing the War on Terror (New Press, 2007), Cole and coauthor Jules Lobel scrutinize the public record to show how Bush's tough-guy tactics have not only unjustly constricted our civil liberties but have failed to catch the "evil doers." Utne.com caught up with Cole after a lecture at the Magers and Quinn bookstore in Minneapolis.

Why are we less free?

The Bush administration has adopted a particular approach to fighting terrorism, something it calls the "preventive paradigm." This paradigm seeks to employ the most coercive measures that a state has against people, not because of what they have done but because of what they might do. When you interrogate people based on the sense that we might be able to prevent a terrorist attack in the future, or go to war against a country that didn't attack us -- Iraq -- on a preventive theory, you put tremendous pressure on the basic principles of this country.

The Bush administration has taken the position that it can lock up anyone anywhere in the world -- including US citizens -- without any hearing whatsoever, without any access to a lawyer, simply because the president considers him to be, in his words, "a bad guy." We've sacrificed the principles of the First Amendment's right of association in the name of punishing people for their association with quote/unquote terrorist groups -- groups that have been labeled terrorist. We've seen sacrifices in commitments to due process because of the Bush administration's notion that the government can coercively interrogate people to try to get information out of them.

You argue that we've been made less safe by this.

The stated justification for these measures is indeed to keep up more safe, but our argument in this book -- based on the six years of evidence we've had to assess how the administration has done -- is that we are in fact less safe as a result of these measures. We show that many of these tactics have captured few if any terrorists; have disrupted few if any terrorist plots; and have had tremendous negative consequences, both in terms of immunizing people who are bad from being brought to justice (because the information on them was tainted because it was gotten by torturing somebody) and in terms of prompting a tremendous amount of resentment against the United States.

So what's the alternative?

There are a whole range of sensible preventive measures that can make us safer without causing tremendous blowback, because they're consistent with the rule of law. There's guarding nuclear stockpiles around the world so that terrorists won't get them; better screening of cargo on airplanes; better screening of containers coming into shipping ports; better information sharing among law enforcement intelligence. A more thoughtful foreign policy would undermine some of the big problems that drive people to support groups like al-Qaida. We could engage with the world in more positive ways through foreign aid instead of putting military bases around the world. And, when we use coercive methods -- because sometimes coercive methods are justified -- we need to do so in accordance with the rule of law. If we had done that, we would be both more free, and more safe.

Why do people still subscribe to the preventive doctrine?

There are people in this administration who think that the only thing that works is hard power, military might, acting tough. If the last six years have shown anything, it's that it doesn't work. We need to be much more attentive to our soft power, to our influence throughout the world, to our legitimacy. What everybody agrees on is that this is a war of ideas. We're not going to win the war of ideas if we are perceived as engaging in illegitimate tactics.

There are other countries that have dealt with terrorism in the past. Do their struggles offer any insights for us?

They do. For example the UK has struggled with terrorism for decades. With the Irish Republican Army (IRA), the government's initial responses were somewhat similar to the responses the administration here undertook. They authorized long-term internment without trial; they authorized coercive interrogation; they overreacted in a variety of military ways. What they found was that these tactics only strengthened the support within the Irish community for the IRA. Nowadays it's widely accepted within the UK that these measures are counterproductive. You've got to be resilient; you've got to be measured in your responses. The last thing you want to do is declare a war and treat the terrorists as warriors. That gives them the kind of renown that they want.

Is there any light at the end of the tunnel?

Well I certainly hope so. Part of the reason why we wrote the book is in the hope that by showing people what has happened, people will realize that there are much smarter ways to fighting terror without the negative consequences of the play-tough/act-tough mentality of the Bush administration.

So you're more play-smart, think-smart?

Yeah, and already there's been some pushback on a number of the administration's worst excesses. On torture, they had to retract the torture memo. On [the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], Congress rejected the administration's interpretation of that treaty to not apply to foreigners outside of the United States. The Supreme Court rejected their view that the Geneva conventions don't apply. On the National Security Agency's warrantless wiretapping program, a court held it unconstitutional [and ordered the program] terminated.

There has also been a lot of pushback since the Democrats came to power, I think as a result of [popular] dissatisfaction with Iraq. We need to build on that if we're going to try to restore America to anything like the status it had before 9/11.

How much do you think newspaper-reading civilians know about the war on terror?

A lot of what we know has only been disclosed by virtue of leaks. No one really knows how much is still behind closed doors.