Ahmed Khalfan Ghailani is a Tanzanian accused of playing a role in Al Qaeda’s bombings of the US embassies in Nairobi and Dar es Salaam in 1998.
He is the first Guantánamo prisoner to be tried in an American civilian court.
But because information from Ghailani was obtained through torture (euphemistically referred to in the United States as “enhanced interrogation techniques”), the judge barred the prosecution¹s main witness.
Needless to say, this has turned the US government¹s case against Ghailani upside down. More importantly, it has reopened the unsettled and unsettling question of what to do with suspected terrorists.
Without prejudging Ghailani, I know a dissident in Kenya who provided emotional contact with the bombing in Nairobi, and by extension what people who blow up buildings and marketplaces do to people’s lives.
Matthew is a leading sociologist in Kenya, twice imprisoned and tortured under Moi. A year after the embassy bombings, I was able to get him to the US for an anti-corruption conference with then Vice-President Gore. When I met him in Chicago afterward, he gave a graphic description of the carnage at the American embassy in Nairobi.
“There were two blasts,” Matthew said, “a small one that brought everyone to their office windows, and a huge one that killed hundreds and blew out all the windows, sending glass shards into many people’s eyes.” Matthew’s sister was blinded by the blast.
Human beings are horrified and sickened by terrorist acts. They’re meant to be. It’s axiomatic that terrorism is the use of mass slaughter and mayhem to generate fear in a population, in order to achieve some goal.
But most governments (including and especially the US government, even under Barack Obama) also want their citizens to be fearful, in order to manipulate the population.
In other words, terrorists seek to terrify a population to get a government to change a policy, while many governments calculatingly use terrorism to scare people into accepting and supporting their policies.
Whether that makes the two camps morally equivalent is an argument about how many devils can dance on the head of a pin. The exploitation of fear is wrong and wrongheaded. Governments that use the fear of terrorism to manipulate their citizens are psychologically colluding with terrorists.
To my mind, two main questions emerge from the morass of the ³global war on terror,² which the Bush Administration set in motion and the Obama Administration has been making a half-hearted attempt to change.
The first is: What is the nature of these crimes? Are they crimes against humanity or acts of war? Second, what is to be done with suspected international terrorists? How are they to be treated and tried?
Mindful of the tentacles of the CIA, which reach all around the world and snatch people from almost anywhere to be imprisoned and tortured (I mean, given enhanced interrogation) in complicit countries, these may seem like naïve questions. But it’s precisely because both stateless terrorists and terrifying states operate in the lawless space between countries in our global society that these questions urgently need to be adequately addressed.
There is no debate in America on this issue at present however. The choice is between semi-show trials through civilian courts (the Obama Administration often brags about the nearly 100% conviction rate), or secret military tribunals, or unlimited detentions with no trials at all. And this is in a country that prides itself on its constitution, human rights, and the rule of law.
After the Ghailani juristic debacle for the US government’s well-laid plans began, Harvard Law School professor and assistant attorney general in the Bush Administration, Jack Goldsmith, openly declared in the New York Times: “The Obama Administration should embraceŠmilitary detention without charge or trial.”
Goldsmith proudly asserts that “district and appellate judges [in the USA] have repeatedly ruled that the president [can] detain members of Al Qaeda, the Taliban and associated forces until the end of the military conflict.”
Since the “war on terror” is actually a lawless, open-ended campaign against any group the United States deems “enemy combatants,” such a rationale and execution is shredding every moral and legal principle upon which this country was founded.
International terrorism represents a significant and special threat to civilized society, but terrorism is as it has always been a psychological strategy and tactic employed by the powerless to force a change in the policies of the powerful. It isn’t a war unless the powerful make it one.
Americans need to remember that 19 fanatics with box cutters brought down the World Trade Towers. Even if Al Qaeda got its hands on a nuclear weapon and used it, terrorism is not war, and war is not the means to combat it.
Than what is? Given their ideological predisposition, Bush Administration officials lacked the moral and creative capability to address the issue of international terrorism, except reactively and reflexively through the monstrous US military.
The Obama Administration has no such excuse. In some ways they’re worse, since they’re trying to have it both ways, under the guise of a non-existent middle ground between the egregious and the unworkable.
What is the right response to terrorism? Suspected terrorists who commit mass murder across national boundaries should be tried for crimes against humanity.
That requires creating new global mechanisms for arresting and trying terrorism suspects, because in the war between powerless crazies and powerful lazies, we all lose.