Duke Law Conference Examines Strategies Used in the War on Terrorism

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Jane Harman
"It's not a 'war on terrorism,' a notion which connotes a finite adversary against whom we will win or lose. We live in an era of terror."
U.S. Rep. Jane Harman
The progress of the war on terrorism was analyzed in depth during a Duke Law conference on April 7th and 8th. "Strategies for the War on Terrorism: Taking Stock" brought together experts from government, academia, the military and intelligence services, and the diplomatic corps to engage in a series of multi-faceted panel discussions on such issues as the roots of extremism in the Muslim world, acceptable parameters for interrogation of "enemy combatants," the workings of military commissions authorized by the president to prosecute those detained at Guantanamo Bay, and the "sunset" provisions of the USA PATRIOT Act. Co-sponsored by the Center on Law, Ethics and National Security (LENS) and the Program in Public Law, the conference also featured three remarkable keynote speakers who offered unique insights into the future of the war on terrorism-but little reassurance of an end to the conflict.

"This nation, in my mind, is absolutely certain to be attacked again," said James Pavitt, until recently the Deputy Director of Operations at the CIA and, in that capacity, manager of America's world-wide clandestine activities. He shared his concern that terrorists could detonate a radiological device in an American city, easily cobbling it together from radioactive medical waste and basic explosives.

"It's not a device that would kill a lot of people, but it would absolutely send panic throughout our nation."

Pavitt cautioned against taking any comfort in the fact that the United States has been free of attack for three-and-a-half years. Even following the recommendations of the 9-11 Commission and the Weapons of Mass Destruction Commission to the letter, however laudable and essential, would not reduce the present risk of attack.

"Nothing is going to make the nation safer overnight, or anytime soon. My fear is that this is a generational issue. Great progress has been made [but] great amounts of work need to be done."

In her keynote address, U.S. Rep. Jane Harman, D-Calif., the ranking Democrat on the Permanent Select Committee on Intelligence, echoed the sentiment that the country remains under threat.

"It's not a ‘war on terrorism,' a notion which connotes a finite adversary against whom we will win or lose. We live in an era of terror," said Harman, likening the use of force against terrorists to "hammering jello".

"You can hit [the terrorists] as hard as you want, but they just squirt out-disperse-and they reconnect with their networks in other locations, and literally plug into a wider and growing jihadist movement."

Good intelligence, diplomacy, and public diplomacy-"a broader public effort to win the hearts and minds of the Muslim world"-are also necessary to defeat the threat, Harman noted, before launching into a critique of the administration's policies towards detention and interrogation of terror suspects, the result of its "one-dimensional view" that the United States is embroiled in "simply a ‘war.'"

"People can't just disappear in America," she said of the prisoners detained at the U.S. naval base in Guantanamo Bay, Cuba. "As the Supreme Court held in Rasul v. Bush, prisoners must have a legal status and the ability to challenge that status." Holding prisoners like American Jose Padilla, arrested at Chicago's O'Hare Airport on suspicion of planning the detonation of a "dirty bomb," and detained without charges and access to counsel at a military facility in South Carolina, also is "inconsistent with our constitutional values," she continued.

Turning to the now-infamous "torture memos" authored by the Office of Legal Counsel over the past three years, Harman charged that the administration "clings to the view that our laws do not constrain the actions of the commander in chief in wartime. But in an ‘era of terror,' this position breaks down. Should we suspend our laws forever? Is that really what America wants to stand for?"

Harman outlined draft legislation she is working on along with Harvard professors Philip Heymann and Juliette Kayyem that, she said, attempts to acknowledge both that interrogations are "vital tools" essential to intelligence-gathering, and that torture, and overly coercive interrogation techniques are wrong. She admitted the challenge of striking the right balance, suggesting that a diverse, bipartisan group, including administration officials and civil libertarians, convene to work on a consensus solution. Congress, she argued, must lead the effort.

"Article 1, Section 8 provides that Congress shall make laws concerning Captures on Land and Water. This is our responsibility. This is not the role of the White House, or even the courts. This is the role of Congress."

The Honorable Nabil Fahmy, Egypt's ambassador to the United States, offered an international perspective on many of the issues explored during the conference. He cautioned against characterizing the war on terrorism as just "America's war."

"It is not [just] an American problem. America has to understand it is a global power. American interests are global."

While "policing methods" such as force and immigration reforms rein in the ideologues and masterminds of terrorism, equal weight must be given to the "footsoldiers" of terrorists, "those that they recruit, the communities from which they recruit, the communities that will stand back and say ‘I'm not part of this battle [because] the government and the criminals are all the same," said Fahmy. He called the rise of anti-American sentiment a major problem, as it impedes the ability of governments to deal with terrorists if it causes them to appear to be supporting America.

"The only way to change that is to respond to the concerns of these communities," he said. "Whether we are talking about Kashmir, the Middle East peace process, poverty, liberalization and reform, Iraq-all of those issues will factor into the success or failure in the war against terrorism. We must change the tide in these communities." He called it a matter of American national interest to help resolve such issues fairly, even as each member of the international community must attend to its own domestic problems . He also called for American introspection, to better understand why it is becoming a target of terrorists.

"You'll never convince Bin Ladin or [Abu Musab al-] Zarqawi, but you can definitely make a fundamental shift in the sentiments vis-a-vis America that will help create a strong center that would stand up and defend America, defend a western society, defend Egypt ... against terrorists who will come and [claim] that ‘they are not fair about Palestinians and Israelis.' [They] will not be able to destroy America over a policy issue."

Professor Scott Silliman, executive director of LENS and the chief organizer of the conference, was delighted with the level of discourse that went on during the two-day event.

"There is no question that the discussions during the conference informed and refined the public debate on whether the United States has chosen the right strategies and policies in the global war on terrorism," he said. "All who attended agreed that it was a tremendously productive session. I think it ranks among the very best conferences we have put on over the last ten years."

"Strategies for the War on Terrorism: Taking Stock," was co-sponsored by Duke University's Sanford Institute for Public Policy and Kenan Institute for Ethics, as well as the Triangle Institute for Security Studies.