2-27-2012By Gabor Rona
International Legal Director
Remarks at Fordham Law School conference, Friday, February 24, 2012 – “The Economics of Terrorism”
I’m taking the reference to economics to mean costs in the broad sense: national security costs, political costs, justice costs to both suspects and victims, costs to the U.S.’s credibility as a standard bearer for human rights, and financial costs.
And I’m taking the reference to “prosecution” also somewhat broadly, to include all U.S. policies in the prosecution of efforts to combat terrorism, including targeted killing and detention without trial.
There are four choices to be made about how suspected terrorists are handled: extrajudicial killing, prosecution in federal court, prosecution by military commission and indefinite detention without trial.
I don’t have time here to do justice to the complex issue of targeted killing, but I will say that the weight of international legal and policy opinion is against the scope of targeted killing practice exercised by the U.S.. For more on that, see Jeh Johnson’s speech earlier this week at Yale and my response posted on the Jurist website. And that provides one example of a cost.
Germany, for example, has a pretty strong intelligence operation going in Pakistan. But recently, in reaction to US drone strikes there, Germany has decided to suspend intel sharing with the U.S., for fear that the information it provides will be used to kill people. Why is Germany skittish? Is it merely because Germany believes that the U.S. targeted killings there violate international law? That’s only part of the reason. Unlike the U.S., Germany, like all other members of the Council of Europe, is subject to a system of enforcement of its international human rights obligations in the European Court of Human Rights. It cannot afford to implicate itself as an enabler of human rights violations without direct consequence. Latin American States that are part of the Inter-American human rights system are likewise situated. And this fact has larger cost implications.
Abu Ghraib. Is it behind us? Judge for yourself. After the scandal broke, allied forces in Afghanistan – and remember, Abu Ghraib was Iraq, not Afghanistan – stopped transferring captured Taliban and al Qaeda suspects into US hands. They now transfer them to Afghan control, but still have not resumed transferring them to us.
These governments, rightly or wrongly, (rightly, I think) also believe that Guantanamo-style indefinite detention without trial and trial by military commission are incompatible with international law, including the law of armed conflict and human rights law. They withhold intel and they decline to transfer terrorism suspects to the U.S. so long as these policies and practices remain in effect. Just recently, an appeals court in Canada denied US extradition request for a terrorism suspect because of incompatibilities between Canadian human rights obligations and US detention policies. The recently enacted detention provisions of the NDAA, which appear to mandate military detention and military trials, simply add to allies’ reluctance to cooperate with the U.S.. Given the trans-national nature of organized terrorism, this is a devastating cost to US national security, including the safety of U.S. personnel, including troops, abroad.
The cost is not only to cooperation between governments. Guantanamo, military commissions, targeted killings, and Abu Ghraib’s power to recruit disaffected individuals to the anti-American cause is clear. Those who understand the tribal structure of places like northern Pakistan and Yemen are absolutely clear that a drone attack on one terrorist creates five more, and a drone attack that kills one woman or child can create a dozen more.
There are other, perhaps even greater, second-generation costs to U.S. counterterrorism policies that fail to comply with applicable international law. First, as to the laws of war. These time-honored rules are built on the expectation of reciprocity: I agree to be bound by these rules in my fight against you because you are similarly bound. But my obligation to obey the rules does not cease if you violate them. Were it otherwise, there could be no legal regulation of war and we would be back in the stone ages. This is why John McCain, in response to the question: why should we play by the rules when they kidnap us and cut off our heads? Responds: this is not about who they are, it’s about who we are.
The “we” in question here, the United States, is what State Department legal advisor Harold Koh calls the world’s indispensible force for human rights. The stock of that indispensible force has suffered greatly since the establishment of Guantanamo, military commissions, and Abu Ghraib. The costs are felt not only in national security related to counterterrorism, but in all manners of US efforts to promote human rights worldwide. It has become a predictable mantra of autocrats and human rights abusers: by what right does the US have to lecture me on human rights? The answer is not easy to construct in the face of what appears to the world at large to be US tactics that dismiss established norms of international law, so long as they are directed at “the other.”
So what benefits of broad targeted killing policy, military detention and military trials justify these costs?
I don’t know. The cries of NIMBY and “they don’t deserve our rights” ring hollow, narcissistic, and counterproductive, largely fueled by the politics of fear.
Federal courts have successfully tried over 400 terrorism cases since 9/11 and have handed out harsh sentences. Not one of those convicted has escaped or wrought violence onto U.S. shores. Military Commissions, meanwhile have convicted a tiny handful, virtually all by plea bargain, and have handed down light sentences. More significantly, the present generation of military commissions has not been tested before the US Supreme Court. Recall that the last generation was ruled unconstitutional by the Court. This means that while it has been 10 years that some of the accused have waited for trial, it may be another 10 before their convictions are either upheld or reversed. This is justice for neither the suspects nor their victims. Federal courts, on the other hand, and the procedures they use, are time honored, tested, and subject to no such challenge.
Some suggest the choices can be reduced to two: dealing with terrorism as a crime means using our federal courts; and dealing with it as a war means either law of war detention without trial or trial by military commission for those we chose to put on trial.
This is simply wrong. Defenders of the military model uniformly fail to acknowledge that the US code contains a war crimes law, which provides for jurisdiction in our tried and true Article 3, federal courts.
The bottom line is pretty clear. The more the US distances itself from the weight of applicable international law, and more importantly, from the weight of international opinion about applicable international law, the higher the cost in terms of national security and national reputation as a supporter of human rights.
But if none of this impresses you and all you want to hear about is dollars and sense then consider this:
The annual cost of detaining an individual in Federal prison: $27,251
The annual cost of detaining an individual in Guantanamo: $800,000