Does our safety diminish as our laws increase?

[An earlier version of this appeared in the Fall 2004 Dissent magazine.]

By William E. Odom
diane@hudson.org

Because no act of terrorism has yet destroyed a liberal democracy but acts of parliament have closed a few, Americans should ask if the new U.S. policies, laws, and practices in reaction to the attacks of 9/11 are more threatening to their liberties than Osama bin Laden's al Qaeda.

Does the administration’s insistence on treatment of prisoners that violates the Geneva Convention, even after the Supreme Court ruled against its detentions at Guantanamo, produce better intelligence and make military operations more effective?

[Click here for earlier pieces on this site by Gen. Odom]

Does its insistence on surveillance of telecommunications of US citizens by standards that violate the FISA Court rules improve either our security or our counterterrorism operations more than it threatens our liberties?

And what about the administration’s feckless investigations and failed prosecutions of terrorist suspects, its clumsy and gross mishandling of student and other visa applications, its signs on highways asking citizens to “report suspicious activities”? Are these impingements threatening our liberties more than our enemies? 

Do the ill-considered and bureaucratic monstrosities created by the law establishing the Department of Homeland Security and the Intelligence Reform Act please al Qaeda both by imposing large transaction costs on American taxpayers and restricting their liberties?

Edmund Burke, were he alive today, would say they do, judging by his opposition to the British policies that caused and lost the war against American independence. In his letter to the sheriffs of the city of Bristol in 1778, we can see the line of reasoning that he would voice today against the Guantanamo incarcerations, military tribunals, the use of the "terrorism" label, and the Patriot Act. Burke subjected the parliament's American Treason Act to blistering criticism, noting that it was the ninth in a series of such ill-advised laws enacted to support its American policy, adding dryly that "our subjects diminish as our laws increase." Today he could say to Americans that "your allies diminish as your counterterrorism laws increase."

Burke was outraged that the American Treason Act provided for a partial suspension of habeas corpus and enabled the king's administration “to confine, as long as it shall think proper, those, whom that act is pleased to qualify by the name of pirates." Thus they could be "detained in prison...to a future trial and ignominious punishment, whenever circumstances shall make it convenient to execute vengeance on them under the colour of that odious and infamous offence."

If one thinks of the Guantanamo prison and changes "piracy" to "terrorism," then Burke's charge sounds surprisingly contemporary. The "terrorism" label is a source of great mischief in U.S. policy today. So-called acts of terrorism are crimes if committed within a U.S. jurisdiction; they are acts of war if committed from abroad against U.S. citizens or interests. In other words, we have more precise terms for so-called terrorist acts, words far more appropriate for legal statutes.

Terrorism is a political label intended to whip up anger against one's enemy, not to ensure justice in the due process of law. Shouting furiously at the world about the evils of "terrorism" makes the United States look hypocritical, if not downright silly and incompetent.

By the Bush administration's definition of the word, Mr. Iyad Allawi, whom it once supported as the interim prime minister of Iraq, is a terrorist, one supplied with car bombs by U.S. intelligence officials several years ago for use against Saddam Hussein's regime in Iraq. To point this out is not to criticize the policy - except for its fecklessness - but to remind us that United States is not always adverse to terrorism. When the late Sen. Abraham Ribicoff of Connecticut enrolled a bill in 1979 against "international terrorism," it could not be enacted into law because any way the term was defined, the United States was a violator. Such an ambiguous category can only lead to bad policies and great injustices.

Bad policies continue to accumulate. Among the most egregious was President Bush's misleading case to the public to justify his invasion of Iraq that the Iraqi regime cooperated with al Qaeda. Holding prisoners in Guantanamo for over two years without greater transparency raises questions about its legality. The Justice Department uses the threat alert system mainly as political cover against the event of another terrorist attack. The FBI's astounding incompetence remains unaddressed as its officials use the Patriot Act to excuse their past fecklessness. And the administration flatly denies the Intelligence Community's incontrovertible failures.

Beyond issues of principle, the fiscal costs are irresponsible. Security measures have grown far out of proportion to the safety they provide. This is especially true of the oversized Department of Homeland Security. Foreign students and important visitors are being turned away at great loss to U.S. higher education, science, and culture. The millions of dollars spent on barriers, guards, and check points are transaction costs to the U.S. economy that probably exceed Osama bin Laden's expectations.

How do we escape this awful predicament? Useful first steps would be to remove the barriers in front of the White House and the Capitol, encourage public confidence instead of hysteria about terrorism, rescind the Patriot Act, and withdraw US forces from Iraq so more effort can be directed against al Qaeda.

It is high time that leaders in Congress, opinion makers, candidates for public office nationwide and the press unmask the so-called “Global War on Terrorism” for what it is: a slogan and a campaign that make al Qaeda and other such organizations far more effective than they would be if publicly ignored and quietly attacked by methods entirely within the limits of our constitutional rights.  Several academic students of terrorist groups have pointed over the past two years that the US policies, especially the invasion of Iraq, have revitalized al Qaeda’s flagging appeal and declining recruitment in 2002 after its defeat in Afghanistan. More recently, the Intelligence Community has produced a National Intelligence Estimate that effectively confirms their assessments.

It took a conservative like Edmund Burke to recognize the real dangers the American Revolution posed to British citizens, from their government, not the Americans. Today, American conservatives seem unable to find a Burke who will speak the unhappy truth: the Bush administration is fighting on the wrong side in this struggle, more threatening to our rights than to al Qaeda.

Lieutenant General William E. Odom, U.S. Army (Ret.), a frequent contributor to NiemanWatchdog, died May 30, 2008, apparently of a heart attack. Odom in recent years had been an aggressive critic of the U.S. invasion of Iraq and was one of the first to call for removing American troops from Iraq. For many years a highly popular professor at Yale, he had been director of the National Security Agency under President Reagan from 1985 to 1988.

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