Paul Pillar

Congress gave Attorney General Eric Holder no choice. In the interest of avoiding further delay in having some sort of justice served for an incredibly heinous crime committed a decade ago, he perhaps was right to bow to the misguided Congressional will and have 9/11 mastermind Khalid Sheikh Mohammed and several others accused of involvement in that terrorist attack tried in a military tribunal, rather than holding out any longer to try to get Congress to reverse its mistaken ban on trying the suspects where they ought to be tried, in a federal district court. Holder also was right to be openly disdainful of Congress for enacting that ban.

Don't try to find any logic in the ban. It is based not on logic but on a combination of ideology and ideologically inspired wordplay, in which a lot of people in this country feel compelled to inject the word “war” into anything having to do with counterterrorism, with whatever military connotations follow from that. The ideology and the wordplay are wrapped up especially with Republican attempts to portray themselves as tougher on terrorism than their political opponents are, and to try to make this point by repeatedly uttering the word “war “ and suggesting that those who do not use the same vocabulary just don't take the problem as seriously as they do. It is wrapped up as well in the previous administration's portrayal of its Iraq War—a real war—as part of a “war on terror”. In the current case the ideology and wordplay were assisted by NIMBYism in New York City, including the mayor bowing to business and financial interests in lower Manhattan who preferred not to be inconvenienced by a high profile trial in their neighborhood.

The issue here is not to be equated with the question of whether military tribunals can serve a legitimate purpose. The Obama administration's inability to deliver on Mr. Obama's stated intention of closing the detention facility at Guantanamo points to the existence of individuals whose disposition is difficult because a criminal case would be hard to build against them but there is still reason to believe they would be a danger if released. Many such individuals were vacuumed up on battlefields, especially in Afghanistan, and it might be appropriate for some sort of military judicial proceeding to be part of how their cases are disposed. It should be noted that Khalid Sheikh Mohammed was not vacuumed up on a battlefield; his was arrested at a safe house in Pakistan—roused from sleep as documented by that wonderfully unflattering photograph of him in his underwear. The U.S. military had no interaction with him until he was incarcerated at Guantanamo.

Let us review the consequences of the Congressional requirement to address the 9/11 case in a military tribunal rather than in a federal court as provided for in Article III of the U.S. Constitution.

It depicts the terrorists exactly as they wish to be depicted: as warriors rather than as criminals.

It will draw renewed international attention to Guantanamo, to the controversies surrounding the whole detention system centered there, and to the abuses associated with that system.

Given the major legal uncertainties regarding the military tribunals, the case of the 9/11 suspects probably will be subject to unending legal challenges, perhaps never being seen as ever having been definitively resolved.

It shows a lack of confidence in one of the fundamental, long-established elements of the rule of law in this country.

All of the above will be consequences no matter how the military tribunals work in practice. If the tribunals provide all the same procedural rights as a civilian court, then this all becomes a matter of labeling and perceptions. If they do not provide those rights, then we have abandoned one of our own principles having to do with the rule of law, which is that even someone accused of a heinous deed should get his day in court.

To offset all of these consequences, what advantage does use of a military tribunal offer? Besides not inconveniencing those business interests in lower Manhattan, it enables some people to thump their chests as they walk around uttering the word “war”.

The defection from the Libyan regime by Musa Kusa, the foreign minister and before that the longtime head of Libya's External Security Organization, is a significant development that raises legitimate hopes that the regime will crumble from within. Such a prominent defection increases the chance that still more of Muammar Qaddafi's subordinates will desert him. Kusa's move is significant for me also because I did business with him in secret meetings twelve years ago. After Libya surrendered for trial the two suspects wanted for the bombing of Pan Am 103—the subject of the international sanctions maintained against Libya for much of the 1990s—Qaddafi's government conveyed through an intermediary its desire to talk with the United States about turning over a new leaf and moving toward normal relations. The resulting U.S.-Libyan talks that began in 1999 led eventually, after fits and starts, to the agreement in 2003 (also involving Britain) which confirmed not only Qaddafi's getting out of international terrorism but also his giving up of unconventional weapons programs. The principal focus of the early rounds of talks was terrorism and counterterrorism. The initial phase of U.S.-Libyan cooperation against Islamist terrorism was conducted by Kusa and myself.

One can only imagine what cascade of thoughts must go through the mind of someone contemplating defection. The stakes for Kusa in this instance are at least as high as for other defectors or would-be defectors elsewhere. Anyone as prominently associated with the security apparatus of Qaddafi's regime would face a grim future in a post-Qaddafi Libya. But as long as the Libyan dictator clings to power over even a portion of the country, an exiled Kusa faces the danger of being hunted down by the dictator's agents. Kusa would know this all too well, having probably had a part in the hunting down of earlier exiled dissidents. His defection was in part the placing of a bet against Qaddafi's ability to cling to power indefinitely.

But I think his decision reflects more than just a calculation of odds about the outcome of the current Libyan civil war. Kusa is an urbane, polished man who would not look out of place as a minister or ambassador in the service of a western government. He has a western education, in the form of a bachelor's degree from Michigan State University. He is not the image of a revolutionary or a subversive; he comes across as a polite and pragmatic diplomat. Whatever thuggish history may be in his past, it is hard to picture him as representing the current thuggish elements of the Libyan regime. In this moment of trial, anguish, and uncertainty, probably something inside told him that he belongs in the west.

In those initial talks twelve years ago, part of my job was to take the measure of the Libyans and to determine whether they were serious about getting on the good side of counterterrorism. Given whom I was dealing with, this really meant taking the measure of Kusa. I concluded that he, and the government he was representing, were indeed serious about this. We do not know exactly what role Kusa played in persuading Qaddafi to make his dramatic turnaround in policy, but Kusa was the chief implementer of the new policy and I have every reason to think that he fully believed in it and was fully committed to it.

Kusa probably hoped Libya's new direction would enable him to become more of a diplomat and less of a thug, while sufficiently staying in the good graces of the regime he served to stay alive. The new direction promised a new world in which he could more comfortably live with himself as well as living with the regime. Now that world has crashed around him, and he has to rely on the leverage that comes from his valuable knowledge of Libyan matters to receive the mercies of the British.

Accelerating unrest in Syria, with the regime scrambling to find some combination of concession and repression to stay in power, has regime change juices in the United States flowing. The Washington Post editorial page says “it is time to recognize that Syria’s ruler is an unredeemable thug—and that the incipient domestic uprising offers a potentially precious opportunity.” Elliott Abrams declares that with regimes “falling like dominoes” in the Middle East, “Syria is next.” He issues a clarion call to rid the world of the “murderous clan” and “bloody regime” of Bashar al-Assad.

This excitement is understandable, and to some extent justified. The Syria regime's intermittently bloody crackdown on protestors is a reminder of its shortage of scruples. Then there are all the other reasons this regime gives many people reasons to hate it, from its dominating role in Lebanon (and possibly the assassination of former prime minister Rafic Hariri) to its continued association with Palestinian groups that have used terrorism. Unlike Libya, Syria has reached no agreements with the United States on matters such as terrorism and unconventional weapons. And as for opportunities, the current region-wide popular upheaval and its spread already to Syria probably represent the most threatening challenge to the regime since Assad's father seized power in a coup more than four decades ago.

The talking up of the idea of toppling Assad exhibits some of the same shortcomings, however, as earlier agitation for changes of regime elsewhere. There is underestimation of how much worthwhile business could be conducted with the incumbent regime, however distasteful it may be. There is overestimation of how much the policies of the country in question are specific to the incumbent regime, and thus overestimation as well of how much change in those policies would ensue from a change of regime. There is also a general failure to think much about who or what would replace the current regime.

Abrams's op-ed is a good example of these characteristics. He says absolutely nothing about what a replacement regime in Syria would look like, other than that it would be controlled by someone in Syria's Sunni majority. Yet he writes with absolute certainty about the policies of that undescribed future regime. A Sunni-dominated Syrian government, he says, “would never have” close relations with Iran and Hizballah, and Iran “will lose” its Arab ally and land bridge to Hizballah. Now, it certainly is true that sectarian divides strongly color many policies and perspectives in the Middle East, and that members of the Alawite sect to which Bashar and a disproportionate number of higher-ups in his regime belong view their religion as a form of Twelver Shi’ism as is practiced in Iran.  But other influences have been at least as important in shaping the postures in question.  (And by the way, I don’t recall hearing any of this kind of sectarian determinism from supporters of the Iraq War when it came to anticipating what policies could be expected from Shia majority rule in Iraq and what this would imply for Iranian influence.)  The Syrian-Iranian alliance was motivated initially and primarily by common hostility toward the Iraqi regime of Saddam Hussein, and cemented through economic ties that have lasted beyond Saddam’s demise.  A strategic interest in supporting Lebanese Hizballah is something else that Syria and Iran share and has not been primarily a matter of religion.  Hizballah’s value to Syria has been as an instrument of influence in Lebanon (which many Syrians have never quite gotten over regarding as a chunk that never should have been taken out of Greater Syria) and as a club to hold over the head of Israel.

The very small proportion of Alawites in Syria, which is three-fourths Sunni Muslim, means that policies shaped by narrow sectarian concerns would be foolish and dangerous for a regime intent on retaining power, and the regime realizes that.  In any event, Syria under Assad is probably the most secular place in the Middle East. The influence of Islamism, in whatever form, in Syria has nowhere to go but up if there is regime change.  That would not be welcome to those in Israel and the United States who worry about any political role for Islamists. 

Another item in Abrams’s bill of particulars against the Assad regime is the hospitality it extends to Hamas.  This, too, is not driven by religion and certainly not by sectarian considerations—Hamas being not only Islamist but also Sunni.  Instead, it is again a matter of having an ally in confronting Israel.  That confrontation is highly likely to shape the attitudes and policies of almost any conceivable ruler of Syria.  This is not only because of the salience of the Palestinian issue throughout the Arab world but also because Israel still occupies a piece of Syrian territory that it conquered in the 1967 war. 

The status of the Golan Heights relates also to the question of how much business could be done with the “unredeemable thugs” of the current regime.  In the 1990s, while Bashar al-Assad’s father Hafez still ruled Syria, Israel and Syria came within a whisker of reaching a peace agreement that would include return of the Golan to Syria.  Well, not quite within a whisker, but within a few meters of shoreline of Lake Tiberias.  One line of analysis regarding how the current instability may shape Bashar al-Assad’s attitude toward peace negotiations is that he has an incentive to be more militant and bellicose than ever toward Israel, as a rally-round-the-flag distraction.  In the absence of any apparent prospect for resuming fruitful peace talks, he might react that way.  (In his opinion piece, Abrams says nothing about peace with Israel—perhaps reflecting that he, along with the current Israeli government, has little or no interest in a peace agreement involving return of the Golan Heights.)  But if given the opportunity, another incentive for Bashar might be more powerful.  Making Syrian territory whole again would be one of the biggest possible feathers in his cap, or the cap of any Syrian leader.  He would be accomplishing something that even his father could not accomplish in thirty years of rule—sort of like George W. Bush trying to outdo his father by toppling the Iraqi dictator whom the elder Bush had left standing.

Regarding Iraq, by the way, Abrams grossly rewrites history when he refers to “thousands of American soldiers killed in Iraq with the help of the Assad regime.”  In the early months of the war Damascus did facilitate the movement of militants between Syria and Iraq.  But after Secretary of State Powell read the Syrians the riot act and the Syrians themselves came to realize that a wave of Sunni extremism in western Iraq wasn’t in their own interests (hey, they’re Alawites—remember?) they stepped back from such assistance.  For years now, any continued infiltration across the Syrian-Iraqi border has been more a problem of Syrian capability than of Syrian intentions.  That problem will continue to face anyone who comes to power in Damascus.

There is, fortunately, not much talk so far in the United States of a fourth war in Syria to go along with our third war in Libya (although there are some who do not seem bothered by the prospect of such a spread of U.S. commitments).  The uncertainty of Assad’s grip on power, however, is likely to present the Obama administration with some difficult choices in the near future.  As the administration deals with pressures to seize an opportunity and add its own shoving to any effort to topple Assad, it needs to avoid getting swept up in the excitement and to keep a clear head about what difference regime change in Syria would and would not make.

Two days ago I observed that one of the consequences of forcing Muammar Qaddafi out of power, which is what the West is—sort of—trying to do now, is to kill any thoughts other authoritarian regimes would otherwise have of emulating Qaddafi in reaching agreements with the West on such matters as nuclear weapons or terrorism. The Libyan leader had made such a deal, giving up terrorism and his unconventional weapons programs in return for normal relations and acceptance in the community of nations. The West is now showing that, deal or no deal, it is going to seize a chance to get rid of Qaddafi's regime anyway. The clear lesson is that the West is not to be trusted, that whatever enticements it offers are meaningless, and that other regimes would be suckers to agree with the West on something like giving up a nuclear weapons program.

It has not taken long for at least one other dictatorship not only to draw that lesson but to speak about it publicly. The official North Korean news agency disseminated comments this week from a foreign ministry official who said Libya had been duped when it reached its agreement with the United States and Britain in 2003. The Western powers, he suggested, have been playing a big game of bait and switch. “The Libyan crisis is teaching the international community a grave lesson,” the official said. He stated that North Korea will not make Qaddafi's mistake and instead is doing the right thing by holding on to every weapon it has.

The United States has been giving the North Koreans not only a single lesson but a whole course on what to do with its nuclear weapons program. The Iraq War, coupled with U.S. policy toward North Korea itself, taught the lesson that if you're thinking of getting involved with nuclear weapons, go full steam ahead so you can get at least one bomb in the basement as a deterrent before the United States or someone else uses military force to get rid of you. Now with the Libyan situation, the lesson is to cling to whatever nuclear weapons you have already managed to make. The rulers in Iran, being no dummies, are almost certainly drawing the same lessons. It will be very difficult, and will take much time and effort, to cause such lessons to be unlearned.

The unfortunate lessons are the sort of indirect effect that gets too little attention before major initiatives like the military intervention in Libya. It is not as if the possible impact on the perceptions of third parties is never considered, but the consideration gets narrowed to a single notion: that if the United States does not use force in the situation under discussion, its credibility will be damaged and other governments will not believe that it will not use force as necessary in other situations in which its vital interests may be at stake. As Benjamin Friedman points out, the historical record belies that notion. Governments do not gauge credibility that way because what the United States does when its vital interests are not at stake is a poor indicator of what it will do when they are. In contrast, the experience of Qaddafi's regime in dealing with the West is directly applicable to the predicaments of an Iran or North Korea.

None of this should surprise anyone who has studied his Thomas Schelling and the principles of deterrence and coercive diplomacy. Successful influence depends not only on the other party believing that we will execute a threat if he does not cooperate, but also on his believing that we will not execute the threat if he does cooperate. We would do well to learn that lesson, and to stop bankrupting our own diplomacy.