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Associated Press/Photo by Khalid Mohammed

Blood on the ground

Policies to detain terrorists were designed to prevent it

Issue: "Profiles in effective compassion," Sept. 26, 2009

On Aug. 31 a suicide bomber managed to pass security at two Saudi airports and board a private jet carrying Prince Mohammed Nayef, Saudi Arabia's deputy interior minister and anti-terrorism chief. Saudi Arabia has some of the strictest security anywhere-at the country's oil and shipping facilities, at airports, and particularly surrounding members of the royal family. How did this breach happen? Abdullah Hassan Taleh Al Asiri, I hate to say, concealed the explosives in his rectum. By doing so he blew himself to bits, according to an expert quoted on Saudi television, while his target escaped with minor injuries.

Terrorist methods are a pertinent aspect of the debate over terrorist detention and whether interrogators and others should be subject to a new criminal investigation, as U.S. Attorney General Eric Holder has now opened.

Real story No. 2: Terrorists in Baghdad saw opportunity where most street vendors saw nuisance: two mentally disabled women, one called simply "the crazy woman," who wandered the markets every day. On a Friday, when everyone hurries to shop before vendors close early for prayers, militants collected the two women, strapped them with dynamite and ball bearings, then sent them back out into the streets. Once they reached separate, crowded markets, the insurgents detonated the hapless women via cell phones. About 100 people died and more than 200 were wounded.

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When terrorists will go to any extreme to turn themselves or innocent others into human bombs, what can officials charged with protecting public safety do to stop them? When they enjoy the idea of dying to achieve their objectives, as one federal attorney complained to me recently, there is no deterrent left.

Sending a warning to others is a key part of sentencing-when a federal judge in June gave Bernie Madoff the maximum penalty of 150 years, he cited deterrence as the reason. And the oft-debated "deterrent effect of capital punishment" is why public executions throughout history have been just that.

Early on, legal authorities recognized that traditional punishment would not deter terrorism. The only way to stop terrorists, to preserve public safety, said the attorney, who has reviewed classified reports on detainees, "is to stop them in advance by finding out what they are going to do, and by rounding them up so they can't do it."

That realization led to the finding that terror suspects be detained indefinitely as unlawful enemy combatants. They are not criminals but enemies of the state, yet they are not combatants who qualify for POW status under the Geneva Convention because they hide aboard planes in civilian clothes or behind the skirts of mentally deranged women.

The paper trail that followed, the so-called "terror memos" and other findings by government lawyers left, right, and center-careerists, not political appointees-can better be seen as efforts to bring order out of chaos created by terrorists than as founding documents of a right-wing conspiracy to maim Muslims.

By reopening a criminal investigation (one task force of federal prosecutors already has ruled that there is insufficient evidence to prosecute), the attorney general threatens what some regard as an important tool of deterrence, temporary detention without prosecution. Without it, the legal expert said, "you have to wait until there is blood on the ground."

That detainee abuses have happened is not a surprise, given fallen human nature and the frustration of this kind of war. Here the work of investigative reporters and groups like the ACLU in uncovering misconduct has been helpful. Thanks in part to them the Abu Ghraib abusers and at least one CIA contract interrogator have been punished.

The problem is that abuses continue to be portrayed as the norm when they have been the exception. Liberal pundits cite "100 deaths in U.S. custody." But a read of those case reports shows that pathologists ruled 44 possible homicides while the others were deaths of natural causes. Of the 44 less than 10 appear to be cases of possible abuse in U.S. custody.

If by that measurement the ACLU and others are right one-tenth of the time, then they have helped Americans uphold a humane standard but they have not uncovered "the full contours of this illegal national policy," as one ACLU lawyer suggested. And to dismantle the policy for detaining terrorists without putting other deterrents in place may lead to more blood on the ground.
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