U.S. Foreign Policy

Ending U.S. torture gains the moral high ground, but will not in itself make America safer.

By Thomas Hegghammer

The CIA torture memos have generated a media storm in the United States. Many have expressed surprise and indignation at the nature and extent of state-sanctioned torture in the war on terror. On the center-left of the political spectrum there is also a sense of relief and hope that the dark Bush era is over and that a torture-free America will regain the moral high ground and be safer as a result.

Switch to the jihadi Internet forums, where thousands of radical Islamists log on every day to debate religion, politics, and the latest news from the war on terror. Last week there were debates on all kinds of topics, from swine flu to the financial crisis to the alleged capture of the leader of al Qaeda in Iraq. But there was virtually nothing about the torture memos.

This wasn't because the jihadists don't care about how the United States treats detainees. Pictures from Guantánamo and Abu Ghraib have been among al Qaeda's most widely used and most potent recruitment tools in the post-9/11 era. Since early 2002, not a day has passed without Guantánamo being mentioned somewhere on the jihadi Internet. Outrage over Abu Ghraib was the single most important motivation for foreign jihadists going to Iraq in 2004 and 2005. Al Qaeda hostage takings began after the establishment of Guantánamo and skyrocketed after Abu Ghraib. More than one Western hostage met his fate in Iraq wearing an orange jumpsuit.

Nor is al Qaeda's silence on the memos a tacit admission that the end of torture is bad for its recruitment. Jihadi strategists have never shied away from publicly discussing the objective challenges they are facing. There are many reasons for al Qaeda to fear an Obama administration, but the cleanup of the CIA black sites is not one of them.

The reason for the silence on the forums is that al Qaeda couldn't care less about the current U.S. debate about torture. The questions of who signed which memos when, whether Khalid Sheikh Mohammed was waterboarded 80 or 180 times, and whether a millipede was inserted into Abu Zubaydah's confinement box are only interesting for those who did not expect the United States to behave this way. And the jihadists are not among them.

For a start, al Qaeda never cared about the black sites in the first place. It never expected its leaders to be treated gently, and it knew the dungeons of Cairo were infinitely worse anyway. Moreover, even if the CIA really did stop torture, the United States has so little credibility left in the Muslim world that virtually nobody would believe it. And those who would believe it would rightly point out that the practice of rendition will continue. Most importantly, Guantánamo and Abu Ghraib have already provided enough propaganda material to last a generation. For the jihadists -- indeed for most Muslims -- the CIA memos are a small drop in an ocean of examples of Western injustice toward Muslims.

The bottom line is that the damage caused by Guantánamo and Abu Ghraib is irreparable and the end of U.S. torture will not in itself make the United States safer from this generation of jihadists. Ending torture in the United States is obviously important, but it will only bring security benefits if it is part of a broader policy package that includes pressure on allied regimes to do the same.

Cleaning up America's own backyard might make liberals feel good about themselves, but they should not be fooled into thinking that this alone will make them safer.

Thomas Hegghammer is a fellow at Harvard Kennedy School and a senior research fellow at the Norwegian Defence Research Establishment. He is the coauthor of Al Qaeda in Its Own Words and author of the forthcoming Jihad in Saudi Arabia. He blogs about jihadi Web sites at www.jihadica.com.

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Yale legal scholar Harold Koh understands foreign legal systems -- that doesn't mean he's going to implement them here.

By Ronald Slye

U.S. President Barack Obama's nomination of Harold Hongju Koh, the dean of Yale Law School, for the position of legal advisor to the State Department spurred uproarious criticism. A number of media commentators argued that his espousal of a transnationalist legal perspective makes him a dangerous choice. The New York Post branded him a member of the "axis of disobedience." The National Review reprinted a letter castigating Koh for saying he could imagine precepts of sharia law at work in the United States.

These critics argue that a transnationalist approach subordinates U.S. national interests to global or foreign ones (an especially timely issue given the global legal wrangling over the United States' "enhanced interrogations" policy). But this view is incorrect and based upon a lack of understanding of this dynamic legal approach.

All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law's traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law -- that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.

This is hardly a radical approach -- in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether "liberal" or "conservative," concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.

Additionally, the power to create and enforce laws now lies outside capital courtrooms -- and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.

Finally, since the founding of the republic, international law has influenced U.S. law and vice versa. All three branches of the U.S. government have incorporated, interpreted, resisted, and responded to international law. And, especially since World War II, the United States has played a proud and instrumental role in developing it and ensuring its enforcement. Those interactions are the focus of a transnationalist legal approach to law, and why Koh must understand transnationalism to act as the State Department's legal advisor.

Ultimately, legal transnationalism, particularly as articulated by Koh, falls squarely within the mainstream. Koh himself is a moderate, having worked for both the Republican Reagan and Democratic Clinton administrations. Everyone from Laurence Tribe of Harvard Law School to Dean Kenneth Starr at Pepperdine University School of Law, as well as half the country's law school deans, supports him. This is not surprising. We are, of course, talking about the legal office that most directly engages with issues of international law. Why would we not want one of the foremost international law experts in the country in that position?

Ronald Slye is an associate professor of law at Seattle University and the director of its international and comparative law program.

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By Tony Badran

Why engaging Syria on Bashar al-Assad's terms is a fool's errand.

For years, the regime in Damascus has been an international pariah, given Syrian President Bashar al-Assad's support for terrorist groups Hamas and Hezbollah, his family's heavy-handed attempts to dominate Lebanon, his broken promises on domestic reform, and his proxy war against U.S. troops in Iraq.

But now, with a new administration in Washington that has vowed to talk with its adversaries, Damascus has openly stated that it expects the administration to come rushing back in repentance. So far, however, the Obama team has been cautious.

On her Middle East trip, U.S. Secretary of State Hillary Clinton made several important statements on Syria. Just before heading to the region, Clinton told reporters that it was "too soon" to speak of any U.S.-Syria thaw. Then, in her stop in Jerusalem, she told reporters that Washington would "not engage in discussions for the sake of having conversation. There has to be a purpose to them; there has to be a perceived benefit for the U.S."

Critics of the policy of isolating Syria have often made "engagement" seem like an end in itself, but through her careful remarks, Clinton clarified that engagement should be based on a clear understanding that talks are but a tool to an end. This is a welcome development. The Assad regime is notorious for dragging out processes and offering no meaningful concessions while extracting unilateral ones.

For instance, despite promising French President Nicolas Sarkozy that he would send an ambassador to Lebanon before the end of 2008, Assad has yet to even name one, let alone dispatch him or her to Beirut. All the while, he has pocketed French concessions. Similarly, the French lobbied to renew discussion over the EU association agreement with Syria, which contains clauses regarding human rights and weapons of mass destruction. Yet, Assad is in the middle of a nuclear coverup scandal with the International Atomic Energy Agency and has publicly told the French that it is "forbidden" for any Westerner to raise human rights and democracy issues with his regime.

Given the history of U.S.-Syrian ties, it is important that Washington signal clearly from the very outset that it is prepared to walk away from the process if it is leading nowhere. With its economy wrecked by decades of mismanagement and shackled by sanctions, Syria needs the United States, not the other way around, regardless of absurd claims by certain analysts and apologists that engagement with Syria will magically cure the region's travails.

Meaningful engagement requires a proper understanding of the limited nature of Syria's relevance, assets, and what it really has to offer. By any measure, Syria is at best a secondary regional actor. Syria has no real economy to speak of. Its minuscule oil reserves, which are the regime's main lifeline, are dwindling, and the country has already become a net importer of oil. Its conventional military power is modest. Its only ability to project any influence has been through its sponsorship of militancy and violence and its ties to Iran, without which it would be relegated to the status of a marginal backwater. The regime's legitimacy hinges on radical narratives of "resistance and rejectionism" toward the United States and Israel. But the gap between the Syrians' actual importance and their self-image and sense of entitlement is vast.

What Washington wants from Syria is not help, but an end to misbehavior. The State Department has rightly defined U.S. policy objectives by making public a list of issues on which the United States seeks tangible Syrian behavioral change: support for terrorism, clandestine nuclear programs, subversion in Lebanon, and human rights at home.

The Syrians reacted with typical hostility. One regime mouthpiece even declared that Syria had "broken" the United States, and so it had no business making demands. Another told prospective U.S. delegations to Syria not "to waste their time and ours" if they intend to raise such issues as Syria's support for terrorist groups, as U.S. Sen. Benjamin Cardin did during his recent trip to Damascus. In Syria's view, it's U.S. policies that need changing.

In fact, since President Barack Obama's election, Syria has announced its own conditions for any "dialogue." Those include lifting of sanctions and removing Syria from the list of state sponsors of terrorism. In return, Syria has offered comically little: Reopening the American school in Damascus, for instance, is hardly a pressing concern for Washington.

A workable engagement policy requires bench marks and clear, irreversible, substantive deliverables from Syria. It needs all the leverage the U.S. government can bring, such as sanctions, which are proving exceedingly useful especially now that the economic crisis is hitting Syria hard. There should be no talk of lifting sanctions, or removing Syria from the terrorism list, before Assad moves first and in credible fashion. That isn't likely to happen for structural reasons.

For the engagement crowd, the coming diplomatic dance will be instructive. Clinton is sending two envoys to Damascus: acting Assistant Secretary of State for Near Eastern Affairs Jeffrey Feltman and a senior National Security Council official, Daniel Shapiro. Feltman in particular is a solid choice. He understands Syrian thuggery and slipperiness firsthand, having been physically threatened by Syrian proxies during his stint as U.S. ambassador in Lebanon.

If history offers lessons, it's that engaging this Syrian regime is unlikely to be fruitful. Clinton's statement about engagement as only a means to an end will soon be tested. Damascus is clearly betting that the Obama team will confuse diplomacy with glibness. But if the secretary refuses to substitute process for purpose, the Syrians will likely be in for a rude awakening.

Tony Badran is a research fellow with the Center for Terrorism Research at the Foundation for Defense of Democracies.

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Why is the United States waging the battle of ideas with one hand tied behind its back?

By Richard G. Lugar

When people the world over want to learn French, they typically go to the local Alliance Française, a French language and culture center run by the government of France. To explore Germany's rich culture and take some German classes, they might stop by one of the German government's Goethe-Instituts. But for English, where do they go? They usually head to an outpost of the British Council, not to a U.S.-sponsored cultural center.

Why? Because nearly all of the popular "American Centers" that spanned the globe, attracting throngs of students and young people who immersed themselves in American publications and ideas, have been closed or drastically downsized and restructured thanks to policy decisions, security concerns, and budget constraints. The unintended result is that in the global contest for ideas, the United States is playing short-handed.

Winning that competition has been a top goal for U.S. policymakers since September 11, 2001, but it hasn't been easy. A recent poll in 21 countries showed that 43 percent of respondents had a negative view of the United States. Late last year, the U.S. Government Accountability Office listed "improving the U.S. image abroad" as one of the most urgent priorities facing the new Congress and administration. When publics feel unfriendly toward the United States, the seeds of anti-American extremism can more easily sprout.

Reaching out to the man or woman on the streets of Jakarta or Caracas or Cairo is the practice of public diplomacy, and the United States does it in a number of ways, from the Peace Corps to the Voice of America to the Fulbright program. But the United States doesn't have a worldwide equivalent to what Britain and France have, namely, facilities in major world cities with libraries, reading rooms, outreach programs, unfiltered Internet access, film series, lectures, and English classes that enable people to meet with Americans of all walks of life and hold two-way conversations on issues of mutual interest.

Not just America's friends, but America's opponents, too, are wielding this public diplomacy tool: Iran has spread a broad network of cultural centers, including many in the same Muslim countries that the United States is trying to reach.

The old American Centers had a good record of success. They attracted young people as well as community leaders, journalists, and policy experts who were the opinion shapers and future leaders of their countries.

But after the Cold War, the United States prematurely declared victory in the battle for hearts and minds, terminating the U.S. Information Agency, which ran the centers, and cutting the State Department's public diplomacy budget. Many thought the Internet and global satellite TV would render irrelevant the people-to-people exchanges fostered by the centers.

Separately, U.S. diplomatic facilities overseas became more isolated. Following the 1998 bombings by Al Qaeda of two U.S. embassies in Africa that killed 12 Americans and more than 200 Tanzanians and Kenyans, the United States embarked upon a major construction program to build new embassies protected against terrorist attacks. Many embassies are now far from city centers and impose time-consuming security procedures upon all visitors. Additionally, most U.S. civilian employees are required to work within the embassy perimeter.

Those security upgrades were necessary, but the result has been less day-to-day interaction between U.S. diplomats and locals. Stripped-down outreach facilities, now called Information Resource Centers (IRCs), are often located within embassy compounds and open to the public by appointment only. State Department statistics show that IRCs within embassy walls in the Middle East received only one sixth as many visitors as those off-compound. Clearly, reaching a wider audience will require creative adjustments to the United States' security approach, keeping in mind that the safety of U.S. personnel must be paramount.

The United States should not abandon this part of the public diplomacy field to others. Iran, for instance, has opened some 60 Iranian cultural centers in Asia, the Middle East, Africa, and Europe that offer Persian language courses and extensive library resources-and a platform for anti-American propaganda.

As part of a broader overhaul of its public diplomacy effort, the United States should reinvigorate the old American Centers concept-putting, when possible, new ones that are safe but accessible in vibrant downtown areas-support active cultural programming, and resume the teaching of English by American or U.S.-trained teachers hired directly by embassies. That would help draw people to the centers and ensure that students got some American perspective along with their grammar.

America's best players in public diplomacy have always been its people and its ideas. The United States should get them back into the game instead of standing on the sidelines.

Richard G. Lugar is a U.S. senator representing Indiana.

Closing Gitmo is the right decision; now the really hard work starts.

by Matthew Waxman

Today, U.S. President Barack Obama suspended military commissions at the detention facility at Guantánamo Bay, Cuba, and it is widely expected that later this week he will order its closure. That's the right thing to do. So is leaving options open to get it done, as Obama has. He'll need that flexibility. Proclaiming an intention to close Guantánamo is the easy part; actually doing it is another thing. Even harder will be crafting a new detention policy and legal regime for a post-Guantánamo world. And Obama has offered few details of how he will do so.

A few major elements of the new administration's Guantánamo closure plan are already clear. First, as to those detainees who are not considered the most dangerous, it will step up efforts to transfer them to their home countries (or third countries) that can be trusted to deal with any continuing security threat and not mistreat them. The Bush administration has already sent home two thirds of the roughly 800 total Guantánamo detainees this way, and the new administration hopes its diplomatic goodwill will energize this process.

Second, as to those detainees it seeks to keep locked up, the new administration will pore over the evidence to see if criminal prosecutions can be brought effectively in federal court and without risking disclosure of critical intelligence sources and methods.

The big question is what to do with any detainees who are too dangerous or heinous to send home but who cannot be effectively prosecuted. Some expect this category to be very small, maybe even zero. Don't rest assured. The recent withdrawal of charges against the alleged "20th hijacker," Mohamed al-Kahtani, due to his improper treatment at the hands of interrogators is but one example of the difficulties Obama will face. The government has expanded criminal statutes for terrorism since 9/11, and courts have gained experience in handling terrorism trials. But even when the information linking some of the most dangerous suspects to al Qaeda terrorism is reliable, it may not be usable or admissible in court.

If federal prosecutions aren't workable in many cases, and releasing the most dangerous detainees is ruled out, the new administration has several options -- all of them with significant downsides. It could continue to hold current and future detainees in U.S. facilities as "enemy combatants" and let current habeas corpus litigation continue through the courts. Or it could try to prosecute them in reformed military commissions with more lenient evidentiary rules. But both these options look much like the deeply discredited Bush administration policy, only moved inside U.S. borders.

Another option would be to work with Congress on new legislation authorizing "administrative detention" for periods of time of a carefully limited category of detainees, pursuant to strict standards and robust judicial review. Opponents of this approach justifiably worry that such laws would institutionalize detention without trial.

Any closure plan will entail risks and difficult trade-offs. The new administration should not hurry to adopt new detention schemes that lack the established features and protections of American criminal trials. But nor should it rule out legal tools that might durably protect both liberty and security within constitutional and international legal bounds. Either way, the thorny problems of detaining and interrogating terrorism suspects picked up in lawless regions or amid covert intelligence operations will persist long after the 250 remaining Guantánamo cases are resolved. Obama may close Guantánamo, but the complex legal and policy challenges that led to its creation are not going away anytime soon.

Matthew Waxman is associate professor at Columbia Law School, adjunct senior fellow at the Council on Foreign Relations, and member of the Hoover Institution Task Force on National Security and Law. He previously held senior positions at the U.S. State Department, Defense Department, and National Security Council.

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President Calderón is fighting America's third war, and America's backing his enemies.

By Shannon O'Neil

When President-elect Barack Obama is sworn in next week, he'll become the proud owner of several wars. There is the familiar mayhem in Afghanistan and reluctant optimism in Iraq. And then there is America's forgotten war: the war on drugs. That battle's newest front is its southern neighbor Mexico, whose president, Felipe Calderón, Obama met on Monday. If Calderón speaks his mind, he could put it simply to Obama: We are fighting your war, and you are supplying our enemies -- with demand for their drugs, money for their cartels, and guns for their violence.

Mexico is fighting for its life, and Calderón has ratcheted up the battle since becoming president in 2006. Still, the picture remains grim.

Drug-related violence is spreading throughout Mexico. In 2008, drug-war-related deaths topped 5,600 -- more than the five-year total of U.S. casualties in Iraq. Drug cartels are undermining the state: They infiltrate local and regional governments, corrupt police officers and judicial officials, and threaten and kill independent journalists. Those in public positions often face the ultimate Faustian bargain -- "la plata o el plomo" -- money or death.

The United States has been slow to recognize its responsibility as the main consumer of these illegal drugs. But the U.S. Congress did pass the Merida Initiative last May, increasing security aid to the country's embattled neighbor from a paltry $40 million to $400 million a year.

Sounds like real help, right?

Unfortunately, these numbers pale in comparison with the funds the United States supplies to Mexico's bad guys. U.S. drug consumers send at least $12 billion a year back to Mexico's cartels, and the U.S. government does little to stop it. Dealers gather individual sales of $20, $50, $100, or more from the streets of New York, Chicago, Charlotte, or Fresno. Through bank transfers, money wiring, and even Greyhound bus, the cash is amassed at the southern border, then put into cars and trucks, and shipped south -- without a glance from U.S. customs officials. This money keeps the cartels in business, funding corruption and violence.

The gun situation is even worse. The Merida Initiative promises some sophisticated gear to the Mexican government, including helicopters, speedboats, and high-end database and surveillance systems. Yet the arms that cartels can and do buy from the open U.S. market -- completely illegally -- leave Mexico's police force and even its military outgunned. There are nearly 7,000 gun shops along the southern U.S. border, about three for every mile. They sell thousands of hand grenades, rocket-propelled grenade launchers, AK-47s, and "cop killer" guns and bullets that cut through Kevlar body armor. The weapons quickly flow south, again with barely a nod from U.S. Border Patrol.

There are many areas where the United States and Mexico can and should work together to improve the situation on both sides of the Rio Grande. For starters, the United States should enforce its own laws. It should investigate and stop money laundering across state lines and international borders. It should enforce arms regulations and stop selling guns to the cartels and their straw buyers. Most of all, it should end the flow of assault rifles and more serious weaponry. In short, instead of just worrying about what is coming north, the United States needs to take a hard look at what is going south.

Obama has indicated his support for the Merida Initiative, as well as the goal of stopping gunrunning. This is a good start. But if the United States really wants to limit the violence in Mexico, it needs to stop funding and arming both sides of the conflict. After all, it's America's war, too.

Shannon O'Neil is Douglas Dillon fellow for Latin America studies at the Council on Foreign Relations and blogs at www.LatIntelligence.com.

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