The Lichfield Group

This article appeared in the September 10, 2006 issue of the Lexington Hearld-Leader.

September 11, 2001, is a day that will live in infamy. On its fifth anniversary, we should pause for a moment of silence to commemorate the thousands of brave victims of that day’s abominations. “Let’s roll” should be as indelibly etched in the nation’s memory as Nathan Hale’s, “I regret that I have but one life to give for my country.”

But the fifth anniversary is also a time for broader reflections. We know much more about international terrorism. We know much more about the wars in Afghanistan and Iraq. And we know much more about the dangers of unchecked executive power. This knowledge should not lie dormant, but should ignite changes in policy.

The shock of 9/11 feed fears of hundreds or thousands of terrorist sleeper cells in the United States. The surprise was like Pearl Harbor. Detentions, deportations or arrests of numerous suspect immigrants or citizens followed. The National Security Agency commenced warrantless electronic surveillance targeting American citizens on American soil contrary to the Foreign Intelligence Surveillance Act. Military tribunals were established by executive order for the trial of alleged war criminals. The nation was placed on war footing. It was natural that President George W. Bush would not wish to play dice with the safety of the American people when so much was then unknown of the strength or presence of Al Qaeda.

But the five years since 9/11 has taught that the international terrorist threat to the United States lies somewhere between war and peace. Al Qaeda, Taliban, Hezbollah, Hamas or sister terrorist organizations are not likely to overthrow the government of the United States or occupy the country, in contrast to Hitler or Hirohito during World War II. Their attacks against America have been more episodic than constant: the 1993 World Trade Center bombing, Khobar Towers, the embassy bombings in Kenya and Tanzania, the U.S.S. Cole, and 9/11. The public sense of danger is more akin to fearing a sniper than a V-1 or V-2 rocket.

But international terrorism is more than Al Capone’s crimes under a jihad banner. Jihadists despise the values of western civilization: democracy; freedom of speech and religion; non-discrimination; and, the rule of law. They would impose a bigoted and benighted theocracy is they could. Moreover, Osama bin Laden has made every man, woman and child a target at all times and places. No atrocity is off limits. And the prospect of criminal punishment after the fact is no deterrent.

Congress should thus enact a special code for fighting terrorism, but short of customary war powers. The latter hike the risk of injustice, for example, erroneous detentions or convicted based on secret evidence. War powers also constrict ordinary freedom of speech and privacy rights. The Constitution should not shrivel at every international danger blind to matters of degree.

The years since 9/11 have also taught the limits of nation-building in Iraq and Afghanistan. Overthrowing Saddam was justified, just as President William Jefferson Clinton’s war against Serbia was justified by the atrocities of Slobodan Milosevic. But it is now obvious to all but the obtuse that a unified, secular, and democratic Iraq is fanciful. The country is hopelessly divided between Kurds, Sunnis, and Shiites. In Kurdistan, the Kurdish national flag waves while the flag of Iraq is nowhere to be seen. Sunnis in the national army will not fight in Shiite areas and vice versa. Private sectarian militias are engaged in virtual warfare against each other and the national army. Mixed neighborhoods are bowing to Sunni and Shiite ghettoes. Iraq’s Shiite Prime Minister supports Hezbollah against Israel.

President Bush should renounce his utopian quest to make Iraq a flagship democracy in the Middle East. He should organize three regional independence plebiscites in the north, center, and south where Kurds, Sunnis, and Shiites respectively predominate. Population exchanges might be required to create three homogeneous statelets as was done between Turkey and Greece following World War I. The three mini-states would be politically viable because their citizens would be bound together by a common religion, history, and ambition similar to the statlets that were spun off from Yugoslavia.

Afghanistan under President Hamid Karzai remains an artificial nation where the writ of the central government stops in Kabul. Opium production is soaring. Taliban is resurgent. War lords dominate the countryside. Corruption is ubiquitous. And theocratic beliefs and the subordination of women are the unwritten law. Afghanistan should be placed under a NATO or United States trusteeship until a secular, democratic culture can take root. Bosnia and Kosovo are useful models.

To persist in the failed strategies in Iraq and Afghanistan promises a humiliating exit reminiscent of Vietnam.

Mr. Bush has conceded the following. After the terrorist attacks of September 11, 2001, he ordered the NSA to target American citizens in the United States for warrantless electronic surveillance based on the hunches of NSA professionals that those citizens were in cahoots with al Qaeda. (Mr. Bush intended to conceal the program from Congress and the American people forever, but that hope was foiled last December when the New York Times published its existence).

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.