Law 911

Talking about terror

A Harvard Law School professor says a unilateral war on terror will not succeed. His solution: contain and isolate extremists by repairing frayed alliances and finding common ground with mainstream Islam

Philip Heymann

Professor Philip Heymann '60 first taught an HLS course on terrorism in the late 1980s. Later, as deputy attorney general in the Clinton administration, he supported the prosecution of Sheik Omar Abdel Rahman for the 1993 bombing of the World Trade Center. He is the author of "Terrorism, Freedom, and Security: Winning Without War" (MIT Press, 2003). Together with Juliette Kayyem '95 of Harvard's John F. Kennedy School of Government, he is at work on a set of legislative proposals for new terror laws, which he hopes to submit to Congress later this year. He was interviewed for this magazine by Michael Rodman.

You object to the phrase "war on terror." Why?
What happens in war is two things. One, the executive gets to act without Congress more often, and two, the Bill of Rights traditionally gets narrowed for the duration of the war. Both of these happen in the name of emergency. Calling this a "war" is a policy choice, and as such we have to ask, Is this really the type of situation in which we want Congress to play a minor role? Is it the type of situation where we want the courts to be denied review? Is it the type of situation in which the military really has a dominant role to play? Because my answer to each of these questions is no, I think it's not wise to think of it as a war. The challenge we face is certainly bigger than what could be handled comfortably under previous notions of international cooperation in law enforcement. It's a new realm, for which we need new rules, and Congress should be making those new rules.

What are the shortcomings of a predominantly military response to terror?
Focusing too much on the military ignores the central roles of intelligence and diplomacy, because the military's no good at catching terrorists. They can't speak the language. They don't have the contacts. It puts off indefinitely the problem of persuading the people who are likely to become terrorists that we're not their enemies. It plays in the opposite direction.

Furthermore, our most important goal--preventing nuclear terrorism--doesn't involve a military response. It requires getting other countries, and financing them, to lock up their fissile materials--stuff out of which you could make nuclear bombs.

If this is going to be an effort over many decades, are we doing enough to develop an effective long-term strategy?
In the long run, we have to worry about maintaining support from friendly nations--Britain, France, Germany, the Eastern European nations, Japan, Thailand--and popular as well as governmental support from the nations where most of the terrorists come from or organize, the Middle Eastern countries and Southeast Asia. We're doing a terrible job in those two areas. A combination of a declaration of "war" and American unilateralism, indefinite detentions, some assassinations, coercive interrogation and military tribunals is losing us the cooperation that we so badly need.

The Pew Research Center, which does surveys around the world, has shown that we are rapidly losing the support of our allies, and that the reaction in the Muslim world to what we're doing is a disaster. In the Muslim countries they polled, between 70 and 90 percent of the populations were sorry that there wasn't more resistance against us in Iraq. A large number of the citizens of Arab countries were asked whether they could trust President Bush or Osama bin Laden to do the right thing, and bin Laden came out way ahead.

In the long run, what we're going to have to do is have very close working alliances with friendly nations who in the last year have been departing from our leadership, and we're going to have to build support in the Muslim nations and get those populations, not just their governments, to frown on terrorism. We've been doing a terrible job at that.

What is the role of international law in all this?
In the international area, the Bush administration has unilaterally claimed rights to go to war, to kill suspected terrorists in foreign nations, and to seize and detain the citizens of other countries. International law must evolve to deal with terrorism--the pre-9/11 rules aren't adequate--but our post-9/11 rules will have to evolve in ways far more consistent with our traditional notions of justice and those of our allies.

Can this "war" be won?
It all depends on what you mean by win. This is part of why I think it's not a good idea to define it as war. If you mean, can we prevent people from seizing Americans who are in the Middle East and holding them hostage, the answer is no. There are a billion and a quarter Muslims in the world. If one-hundredth of 1 percent of those want to do something outrageous, that's 125,000 people who are more than capable of setting off bombs. One-hundredth of 1 percent is a very small number. But one of the things terrorists are good at is having a big impact with small actions. So, small-scale terrorism can't be stopped by either passive defense or pre-emption. And even big events can still take place, even if you go a long way to reducing the risk.

How do you respond to people who say, three years after 9/11, we haven't had major terrorist attacks. All is going well, so why change course?
The two questions are how much of what we're doing is costly and unlikely to be deterring terrorism and how much is a short-term answer to long-term problems. A country might have to do things that are seriously unjust and threatening to democracy, which I think we are with [José] Padilla and [Yaser] Hamdi [Americans detained for over two years without charges], if there were good reason to think they were critically important to avoiding terrorist attacks. But if you thought they were incidental, you'd want to stop doing them because they have immense costs. And you'd want to strengthen what we were doing to whatever extent you thought terror attacks would resume either when the time seemed right for Al Qaeda or as the world moved on for other reasons. Al Qaeda's attacks have typically been two years apart. It's now been three years. I believe that we have made it more difficult for Al Qaeda to organize and to get into the United States. That's very good for us. But we need a long-term strategy too. If you do think we've had an effect, and I do, you still want to think about other things we've done that were foolish and can't possibly have been causal and are troublesome in terms of civil liberties or foreign relations.

What led to the abuses at the Abu Ghraib prison in Iraq?
What we know is that the lawyers were pushing the boundaries indecently and, I think, foolishly far. The memo from the Justice Department parsing the meaning of torture seemed to me to be bad lawyering. And they were doing that in order to empower the secretary of defense and the director of the CIA and the president. We know that there was a fairly widespread practice of humiliation and abuse during the course of interrogation, separated by many layers of bureaucracy from [Donald] Rumsfeld and President Bush and even from their lawyers. What we don't know is what the connections are. We know the top wanted to be permitted to go far in that direction, that the lawyers provided "legitimacy" and immunity, and that the ground level did go too far. But we just don't know yet what the nature of the orders between them was. What we do know is that when you don't try to control torture or near-torture in wartime or even in police stations, it will happen. We know that there was no substantial effort to control it. We don't know whether that was just sloppiness or was created by an atmosphere of authorized indifference.

What theory of interrogation do you subscribe to?
I think the case for the United States not being anywhere near the torture line is very strong. The benefits [of torture] are questionable. You get statements, but whether you get true statements or not, we don't know. The government has done almost no research on these; nor has academia. Even if the information you get is true, getting it can mean the terrorists will simply change their plans. It won't necessarily prevent an attack. And the costs of highly coercive interrogation include the risk that it will be done to your own people, which I think could easily happen to U.S. civilians or soldiers captured in Iraq. You also undermine your alliances and you undermine your support within this country. You plainly create more terrorists. I think we have much more to lose in almost every case than we have to gain.

Why does our government detain someone indefinitely without charging him with a crime?
There are two reasons: to keep the person "off the streets" so he can't commit another act of terrorism; and to make him available for interrogation.

Do you think the United States is abusing this?
You have to realize that this is all new to us--but yes. We obviously detained a large number of aliens under immigration laws in the first months after Sept. 11, of whom only a tiny fraction were ever shown to have any contact at all with anybody who had any contact with Al Qaeda. We have been proceeding without statutory authority or legislated procedures to assure some measure of fairness. I think that the great majority of the 600 or 700 that we have in Guantanamo can't continue to have anything that we want to know. It would only be justifiable to continue to detain them indefinitely to keep them from engaging in more violence, if you thought they were noticeably more dangerous than large numbers of other people out there or likely to return to the United States. Neither is true in most cases.

Soon after Sept. 11, when the president issued an order giving the secretary of defense the power to detain or try people, it only applied to aliens. Then, on his own authority, he invoked that order to detain Americans. The advantages of dealing with danger from citizens outside the court system are vastly outweighed by the risks to the spirited opposition a democracy requires posed by having the chief executive able to detain without a formal declaration of war. The purpose of the habeas corpus clause was to prevent that.

Have the courts done a good job of adjudicating issues within this "war" on terror?
Until the Supreme Court decisions, I think the courts were generally timid, with some notable exceptions. The judge trying the Padilla case has been very insistent on Padilla having access to witnesses. There have been judges in New York who required the disclosure of names of people detained under the immigration laws, although all of this has generally been reversed by the courts of appeals. But in general the courts have been timid.

I think the Supreme Court was moderately bold. Basically what they announced in the detention cases was that they were prepared to get into this area and talk about what a person could be detained for and under what procedures and conditions, and for how long. They didn't say what standards they would use, but they put their foot firmly in the door.

The most interesting thing in terms of separation of powers, though, has been the almost complete absence of Congress, after the Patriot Act was passed. It's because we have a Republican Senate and a Republican House, and there is not much inclination for them to try to constrain a Republican president. But I would have thought that the right answer for the United States was to have hearings and legislation on a number of the issues that the law doesn't now handle.

I expected the Supreme Court to throw the ball back to Congress, saying the president had exceeded his authority without legislation. Then the president would have gone to Congress and asked for legislation, and there would have been debates, etc., which would have all been very healthy. Instead, the Court gave the Congress a free ride and said it believed the resolution authorizing war in Afghanistan gave the president power to detain Americans.

Britain, with a long history of dealing with terrorism, keeps the cases mostly within their court system. The U.S. has gone with military commissions, unseen for half a century. Do you think it would have been better for us to pursue the British model?
I think that for aliens within the United States and American citizens wherever they may be, we ought to only use courts. It seems to be incredibly dangerous to allow the president to set up a military commission in these circumstances. He is the commander in chief, so the commission he establishes is subordinate to him. It lacks the procedural protection of the U.S. courts or courts-martial. He shouldn't be able to decide to detain or to use a military commission to try cases within the U.S.

The case is much harder when you're bringing to justice for war crimes people seized outside the United States who are not American citizens. If there are large numbers of them, or if there's a certain urgency about it, if war's going on, it seems to me too much to expect to have them put on a plane and shipped to the United States for trial. In that circumstance, there should be a trial before a court- martial, with its well-established guarantees of fairness, not before a military commission with ad hoc process.

Do you think the Bush administration has jeopardized intelligence by making arrests rather than relying more on surveillance?
The only way you prevent terrorism through arrests or detentions is if you get a high enough percentage or a critical enough part of a terrorist group that they can't go forward. And to do that you want to follow them for some time to learn about the relationships and the methods of funding. The administration doesn't seem to do that much. They seem to be in an awful hurry to arrest. And a lot of these people are small-fry. So I do think they would do much better to watch them for a much longer period of time. Surveillance, particularly electronic surveillance, is also a much more efficient way of getting information than interrogation.

Do you think profiling in general is an effective law enforcement mechanism?
I think there ought to be a strong presumption against profiling. It almost always won't make sense as an investigative matter because only a tiny percentage of the group profiled will be of any interest at all. And it has a great disadvantage of being something that can be easily used against us by a clever opponent. By concentrating a disproportionate part of your attention on one group, you are automatically putting smaller-than-proportionate attention on all other groups. If you're really in a strategic, chess-like game with terrorists--and to a large extent I think we are--it means that, if the terrorists are able to recruit somebody from outside that group you're profiling, you have automatically made it less likely that person will be caught carrying explosives. So the other side can use it against you fairly readily.

Most important, it is inevitably unfair to treat any individual worse or with greater suspicion because of characteristics he did not choose. That unfairness has the obvious consequences of alienating, and reducing cooperation from, all members of the group you profile, and also alienating the nations they come from.

On the other hand, I don't think it's reasonable to say that nationality can never be a factor at all. If you had a group of Iranians who were visiting atomic sites, I think it's much too dogmatic to say you couldn't check them out more intensively than other visitors. I think that certain nationalities can be a trigger for greater attention. You have to allow the use of national categories for citizens, presumably loyal, of nations whose leaders or populations are known to be hostile to the United States and our people.

So where do you draw that line?
I would not allow any profiling to take place on the basis of race or national origin for American citizens or resident aliens who have been in the country for seven years or so. And I wouldn't allow profiling on the basis of religion or political affiliation unless the religion or the political group is preaching violence. So now we've cut it down to profiling nationals of particular foreign countries. That is a much less serious problem and may be necessary.

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