JURIST Guest Columnist Leonard Cutler of Siena College says that President Obama did not keep his promise to make the country’s counterterrorism policy more consistent with constitutional principles and international law, and that it remains to be seen whether his approach to counterterrorism can avoid the serious political damage manifested by his predecessor…

After al-Qaeda’s unprecedented acts against the US on September 11, 2001, President George W. Bush indicated that the country was facing a different type of enemy in the twenty-first century. The nameless, faceless and borderless enemy was terrorism and for the first time the front was in America. The attack on the World Trade Center, the symbol of global finance and capitalism, and the Pentagon, the heart of the US national security command, caused a catastrophic loss of life and an unprecedented threat to the national sense of well being. President Bush’s objective was to eradicate the evils of terrorism, which meant that the conflict did not end with al-Qaeda or the Taliban. It also included other terrorist militant organizations in Iraq, Palestine, Indonesia, Pakistan, Iran and North Korea.

The Bush administration’s record in the aftermath of September 11, 2001, included the overthrow of the Taliban regime in Afghanistan, the disruption of al-Qaeda’s power infrastructure and the capture or killing of some of the terrorist organization’s worst Islamist militants. It also included a violation of international human rights standards. Due to this, the Bush administration failed to reduce anti-American sentiment across the globe. With the historic election of Barack Obama in 2008, came the perception that Americans would witness a significant departure from the Bush administration’s national security and counterterrorism policies. During the campaign, Obama pledged to make the country’s counterterrorism policy more consistent with constitutional principles and international law.

For all of the Obama administration’s rhetoric claiming that it has chartered an entirely new approach to counterterrorism policy, the record to date clearly indicates the contrary. It may be a case of message over substance as it relates to the following:

• The Guantanamo Bay prison facility remains open as a symbol of torture and repression, and some detainees will continue to be held there indefinitely without trial;
• Water boarding and enhanced interrogation techniques have stopped, but they had already ceased under Bush in 2006;
• An expanded program for detaining alleged terrorists is underway in Bagram, Afghanistan;
• Central Intelligence Agency (CIA) renditions continue to help provide alleged foreign terrorists to friendly foreign governments, who may have their own interrogation standards;
• Obama’s expanded program of targeted killings via drone aircraft is clearly evidenced in Afghanistan;
• Broad electronic surveillance of terrorist suspects continues under Obama with legislative authorization; and
• The longstanding practice of invoking the state secrets doctrine continues to be utilized to quash litigation against the government’s actions.

There is far more consistency with respect to Bush administration policies than was anticipated, particularly in the war against al-Qaeda. Under Obama, Afghanistan has become the military’s top priority in the war against al-Qaeda and the Taliban. More than 100,000 troops and support personnel have been committed in the past two years. Obama initially maintained that the US is not in Afghanistan to control that country. However, his war strategies are strikingly similar to those employed by Bush in Iraq. The number of troops has surged and counterinsurgency and nation-building have become the core strategies. Obama’s principal goal is to promote good governance and legitimacy in the eyes of the local population.

Obama’s strategy has revolved around denying sanctuary to insurgents. Training local security forces to hold territory so the insurgents cannot return is pivotal. Building infrastructure and eliminating political corruption—thereby winning the “hearts and minds” of the population is also a key part of the plan. The local government should take the lead in any longer-term counterinsurgency strategy. Locals have more legitimacy and are familiar with the language, culture, geography, history and political landscape.

The US war against al-Qaeda has become a war against the Taliban and the Pashtun, the tribes living in both Afghanistan and Pakistan who have been successfully fighting foreign adversaries for several centuries. No one has ever effectively defeated the Pashtuns; not the British, the Soviets, or now, the Americans. Obama vowed to reduce the presence of American troops to about 25,000 by 2014, when the Afghan government would assume responsibility. This war is the longest in American history. It has cost more than 1,700 American lives, multiple thousands of Afghan lives and over a half trillion dollars. According to the Congressional Research Service, it will cost America $113.7 billion for FY2012 as compared to $43.5 billion as recently as FY2008.

America is a vital lifeline for Afghan President Hamid Karzai’s control of the country and Pakistani President Asif Ali Zardari’s government in Pakistan. The US needs Pakistan’s cooperation to successfully withdraw troops from Afghanistan next year and further down the road in 2014 and 2015. Continued American economic and military aid is critical given the vulnerability that exists to the Pashtun Taliban, the feared Haqqani network, and Lashkar-e-Tayyiba terrorist organization, all of which have links to al-Qaeda and are committed to the destabilization of both nations.

As the US military and civilian presence and spending decrease, there will be a direct impact on the economies of Afghanistan and Pakistan. These nations may fall into an economic and military abyss. The Karzai government is considered corrupt, illegitimate and incapable of unifying Afghanistan. Pakistan’s nuclear arsenal, which is perched at the crossroads of the Middle East and South Asia, could become susceptible to terrorist attacks. There is deep worry in the Obama administration about Pakistan’s vulnerability to Islamist extremists. Pakistan’s army is bogged down fighting its own Taliban. Insurgents have attacked key military installations by infiltrating the military’s rank and file. A rapid US withdrawal could further destabilize Pakistan.

Despite the death of Osama Bin Laden, and his second-in-command, Atiyah Abd al-Rahman, who was instrumental in overseeing al-Qaeda’s daily operation, there still exists a solid core target list of terrorists that are leading groups in places like Somalia and Yemen. There are different forms and organizations of radical extremists that are not about to disappear. Bin Laden’s elimination is of great symbolic significance because it represents a watershed in the fight against terrorism, and should not be minimized, particularly in light of developments during the spring uprisings in Libya, Egypt, Tunisia, Bahrain, Yemen and Syria. It remains to be seen whether the Obama administration’s approach to counterterrorism, particularly as it relates to the commitment to Afghanistan and Pakistan, can avoid the serious political damage manifested by the failed Bush strategy.

Leonard Cutler is Professor of Public Law in the Department of Political Science at Siena College in Loudonville, New York. His areas of expertise include criminal law and procedure, constitutional law, and international law. He has authored several books, including most recently The Rule of Law and Law of War and Developments in National Security Policy of the United States Post 9/11. Cutler has provided testimony to the Senate Judiciary Committee on issues ranging from detainees, war powers and surveillance to executive privilege.

Suggested citation: Leonard Cutler, A Decade Later: An Assessment of US Policy Since 9/11, JURIST – Forum, Sept. 11, 2011, http://jurist.org/forum/2011/09/leonard-cutler-decade-later.php.