As one election cycle concludes and another begins, some critical facts cannot be forgotten: Five years after 9/11, American soldiers are fighting and dying in Iraq, Afghanistan is far from pacified and the next terrorist act is a question of when, not if.
The Democratic Party’s success in the 2006 midterm election and what it means will be widely debated.
Do the Democrats have a plan with respect to any or all of the above? Did the electorate choose to “send a message” to President Bush and the Republican leadership, or were the Democrats elected because they are perceived to have a workable plan to address the war in Iraq and terrorism?
PLAYING THE HAND
While Iraq and terrorism are joined at the hip, they are not one and the same. A successful Iraq policy does not guarantee effective counterterrorism, just as preventing a terror attack in New York does not promise success in Mosul. The lumping of the two related but distinctly separate issues is perhaps politically convenient but is also disingenuous. The two great issues of the day — and of our children’s day to come — require sober analysis, deep reflection and are uniquely inappropriate for the “20-second sound bite” that defines much of our contemporary public debate. The time for bluster — “bring ’em on” is but the most egregious example of rhetorical excess — is long past.
While pundits, commentators, bloggers, spin masters and politicians from both sides of the aisle will be discussing these issues, America’s servicemen and women continue to be in harm’s way. It is for them that this piece is written; they don’t have time for us to “spin.” They demand responsible decisions by our nation’s leaders predicated on a viable and implementable foreign policy.
Foreign policy must be viewed as a continuum where previous decisions and events affect future courses of action; therefore it is impossible to start anew. Rather, policymakers must play the hand they have been dealt. Is it a great hand? No. Is it a terrible hand? No. It is the best hand available as it is the only hand.
THE IRAQ QUESTION
Going forward, decision-makers must provide a coherent, concise answer to the following question: Why are we in Iraq? Over the past three years, the administration has suggested a variety of reasons for our presence in Iraq ranging from weapons of mass destruction, to Vice President Dick Cheney’s insistence on a connection between 9/11 and Iraq, to President Bush’s stated desire to “bring democracy to Iraq.” Come January, the Democratic leadership in the Congress is morally and politically obligated to ensure that the White House articulates the mission.
Hand in hand with articulating the mission is the absolute requirement to define the nature of the conflict. Who are the parties involved? What are their interests? What is the basis for the mind-boggling hatred between Shiites and Sunnis? Are the Kurds a separate people? Is Iraq a monolithic nation or a 21st-century Yugoslavia: A patchwork of different ethnic groups held together under a strong ruler (Tito, Saddam Hussein) only to be partitioned after the current dictator has exited the scene? Is this an insurgency conducted by Iraqis or by foreigners with their own agenda?
Only after we have answered the above is it possible to address the following two questions: How many troops do we really need in Iraq and when can we begin returning them home?
Today there are three viable alternatives as to what our mission is in Iraq. First is assisting the Iraqi people (or at least those who are interested) to restore normalcy and to facilitate the development of civil society. Second is driving the non-Iraqi insurgents out. Third is a domino theory suggesting that withdrawal from Iraq would signal American weakness to Iran and embolden the Osama bin Ladens of the world.
While those of age shudder when hearing the domino effect theory, for it takes them back to the Vietnam War, the truth is that a significant Iranian threat looms over Iraq, Israel, the U.S. and the rest of the Western world. Policymakers must understand that the mission in Iraq has significant geopolitical ramifications that extend beyond the Iraqi borders. While this does not suggest that the domino theory is a certainty, it does imply that realistic threat assessment is critical. While the Iranian threat must be taken seriously, and an Iraq without American military presence may well be a tempting target for the expansion-minded mullahs, the domino theory need not be accepted blindly. However, it must be carefully considered.
THE NEED FOR MORE TROOPS
With respect to the two additional missions, the intensity of the insurgency clearly caught America’s political and military leaders by total surprise. That reflects a breakdown in intelligence gathering and analysis, a failure to appreciate enmity to foreign presence and disconcerting naiveté regarding international perception of the United States. Working with the Iraqi government either in strengthening their ability to rebuild or in ridding the nation of foreign insurgents also requires a commitment of time and resources, the quantity of which is mission-dependent. It is tragically clear that we are light-years away from accomplishing either potential mission — and may never do so without more than doubling or tripling our troop commitment in Iraq.
Whichever of the three missions is adopted, we must continue the extraordinarily difficult process of recruiting and training Iraqi security forces. Rebuilding the Iraqi army has proved difficult because insurgents regularly attack and kill potential recruits. Nevertheless, we have no choice. Since we disbanded the Iraqi army, we are responsible for rebuilding it. Once we have formed an Iraqi army, we need to train the new recruits. We must prepare them not only for traditional combat but for the far more difficult military assignment of counterterrorism or insurgency. For this, too, we bear responsibility because insurgency came to Iraq only after we entered the country. While counterinsurgency training is complicated and therefore requires resources, we have no choice. Otherwise, Iraq will continue to be the zone of combat that it is today.
We must articulate criteria for determining when the newly formed and properly trained Iraqi army has reached operational capability, thereby allowing for our withdrawal. The criteria must be established by Iraqi and U.S. leadership alike with an eye toward realism rather than hope, with clear means of determining progress.
To accomplish the above requires time, patience and realism. It requires both telling the truth and courage on the part of senior military officials and an administration willing to listen to honest reporting. Both have been sorely lacking these past six years. The administration is obligated to consult with senior military leadership regarding the number of forces required. In consulting with military leadership, the administration must encourage “truthtelling” on the part of the Joint Chiefs of Staffs. The reported malleability of Gen. Richard Meyers, the “desire to please” mentality that seems to best define Gen. Tommy Franks and the stifling of the honest reporting of Gen. Eric Shinseki by then-Secretary of Defense Donald Rumsfeld ill-serve the men and women in uniform. Shinseki, to remind us all, testified before the Congress that we will need far more troops in post-Saddam Iraq than the administration was willing to acknowledge. His reward for honesty was to be driven off and ridiculed by Rumsfeld and the administration. It is clear that Shinseki was more than right.
Where does all this leave us? It requires articulating a mission, understanding societal realities, determining appropriate troop levels and developing criteria enabling our departure from Iraq. Setting a departure date today is irresponsible and impractical; spinning responses to these issues does a disservice to those serving this great nation; hard analysis based on public demand, congressional oversight and an active and responsible media will enable us to begin the process of responsibly addressing these issues.
In developing a viable counterterrorism policy, the following fundamentals must be internalized: The so-called “war on terrorism” cannot be “won.” Terrorism can perhaps be marginalized and terrorists killed. However, the reality is that a civil democratic society must appreciate that terror threats are not episodic, but rather they comprise the daily grind of contemporary life.
Accordingly, counterterrorism policy must be based on long-term geopolitical considerations. That means developing and implementing operational counterterrorism measures while providing economic assistance and educational programs to the very areas of the world where potential terrorists are so easily recruited. Be it the modern-day Marshall Plan or the contemporary version of Radio Free Europe, we must reach out to the “swayables” — those millions of individuals who have not yet decided whether they and their children will follow the path of Osama bin Laden or the path of economic development.
Operational counterterrorism measures, running the gamut from detaining suspected terrorists to conducting more sophisticated checks at the nation’s airports, to ordering the targeted killing of a senior al-Qaida operative, must meet a simple two-part test: They must follow the rule of law and be deemed effective.
Herein lie two of the major dilemmas facing policymakers and decision-makers alike: What laws are to apply to operational counterterrorism, and how is “effective” to be defined? In determining what laws are applicable, the status of terrorists must be articulated. Are they common criminals entitled to full constitutional and criminal law protections and privileges, are they prisoners of war entitled to full Geneva Convention protections, or are they a “hybrid” of the two, requiring the development of laws and procedures specific to terrorism?
Similarly, the word “effective” escapes simple definition. Does a successful attack tomorrow morning on Phoenix Sky Harbor International Airport suggest an “ineffective” policy? Similarly, does the fact that a successful attack has not occurred on American soil since 9/11 suggest an “effective” policy? Are long lines at the nation’s airports an indication of thorough scrutiny and sophisticated checking, or reflective of largely untrained people, overwhelmed with their mission?
Counterterrorism strategy also implies articulating the limits of personal freedom; if the Constitution, to quote former Supreme Court Justice Robert Jackson, “is not a suicide pact,” where do we draw the line? Is the warrantless wire-tapping of our phone conversations in the name of national security acceptable and lawful? Are we comfortable granting the president the power to classify a legal immigrant an “enemy combatant” and thereby deny habeas corpus rights? How are we to balance threats from within with our abhorrence of profiling?
In answering these and other questions, we must at all times recall the fundamental rule of counterterrorism: Terrorists have rights. Think of them what we may, find them repulsive and abhorrent, but until proven otherwise an individual suspected of involvement in terrorism is no more than that — he or she is only a suspect. If we forget that fundamental principle, then our claim to be the “beacon on the hill” will be significantly diminished.
In addressing the absolute supremacy of the rule of law while defining effectiveness, the critical notion is balancing. A civil, democratic society must be able to balance the legitimate rights of the individual with equally legitimate national security considerations of the state. Given that terrorism cannot be defeated, our means and methods to marginalize the threat must be predicated on the balancing requirement.
Articulating the limits of power is an enormously painful and difficult challenge for decision-makers. However, as counterterrorism explicitly requires appreciating the limits of power, our counterterrorism policy must reflect that reality. How does that translate into policy and the law?
It means that decision-makers look the public in the eye and tell them:
“There will be good days and bad days in our effort to combat terrorism. In order to ensure the nation’s collective security, the government may need to restrict your freedoms in response to particular threats. The decision to restrict your freedom of movement and imposition on liberty will be premised on reliable and corroborated intelligence information that will not be made available to the public. However, that information will be made available in full prior to implementation of particular, specific plans to the relevant congressional committees and to an independent judiciary that will exercise checks and balances precisely as our Founding Fathers intended. The Constitution is a living, breathing document that enables the government to protect the people, while simultaneously protecting the people from the government. We will take the fight to terrorists while upholding the rule of law. That is our promise.”
Whether the independent judiciary will be the Supreme Court or an amended FISA court is an issue that must be addressed by academics, jurists, decision-makers and the public. What is important is that the government’s decision to impose on our liberties be subject to procedure, process and strict scrutiny in real time. The somnolent Congress and largely acquiescent Supreme Court of the past five years have not served America well.
These two great issues — Iraq and counterterrorism — demand our utmost attention. They require us to be skeptical with respect to government pronouncements, vigilant regarding the curtailment of rights and wary of committing our forces without a clearly articulated mission. We must demand clear, thoughtful responses from our nation’s leaders and those who wish to lead us.
To do otherwise is to say the unthinkable to those serving our nation: “You may have our back, but we sure don’t have yours.”
- Amos N. Guiora is professor of Law and director of the Institute for Global Security Law and Policy at Case Western Reserve University’s School of Law.