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  1. Law
February 17, 2009

Night Terrors

By Spear's

As if global economic meltdown wasn’t enough, Barack Obama has a terrifying array of security-related concerns to keep him awake in the wee small hours, says Nigel West

The new US administration now has the burden of deciding the tactics to be adopted by the intelligence community in the worldwide war on terror, perhaps hamstrung by campaign commitments and pressure from a constituency that has demanded the closure of Guantanamo Bay, a ban on torture and new legal restrictions on electronic surveillance.

The fate of Guantanamo’s nearly 250 inmates is indeed a problem, and requests to Australia and Portugal to provide them with secure accommodation have been rejected.

Doubtless there were plenty of incentives attached to the plea, but the legal status of the detainees will remain a conundrum until there is some international agreement on how enemy combatants should be handled.

However, as a large proportion of the component countries of the United Nations has no interest in settling this thorny issue, it is unlikely that the international community will take the initiative, leaving the United States to wrestle with the implications of denying a large number of dangerous terrorist suspects access to the American justice system.

Even those suspects who are deemed safe for release — and this is a highly subjective judgment — are proving hard to deport as few countries will accept them, and they cannot be returned to their home countries that, invariably, promise them all too warm a welcome, despite assurances that they will not torture them.

The danger posed by the detainees is clear from the statistics released which shows weekly attacks on the guards, and the example of at least one released detainee becoming a suicide bomber in Baghdad. Nor is dispersing these individuals into the American prison system any kind of a solution, as one predictable consequence would be the contamination of the inmate population.

Even assuming that a secure alternative to Gitmo can be found, the new White House will have to face up to some equally pressing challenges. For example, since 2002 three notorious suspects have supplied detailed information while undergoing the interrogation technique known as water-boarding.

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On each occasion the method was applied with the approval of the Attorney-General, and reportedly the resulting confessions saved many, many lives. As a last resort, water-boarding has proved very effective, but it is to be denied as an instrument in future interrogations. And what of the CIA’s other ways of extracting statements from terrorists?

The co-called ‘black sites’, the clandestine detention centres administered by the CIA and thought to have been located on military sites in Poland and Bulgaria, have been closed, thereby denying the organisation a useful instrument in the handling of suspects who had been the subject of ‘special rendition’, plucked off the street and transported to an entirely alien environment where, under intense psychological pressure and completely unaware of their fate, they were inclined to cooperate with their interrogator, probably the only person among their captors who spoke their language fluently.

Unlike ordinary criminals, who have contact with family and lawyers and know the likely sentence they will face upon conviction, abductees in the black sites have no expectation of external contact or even release, and in those circumstances it is not surprising that some succumb to the kind of ruses so familiar to Nato personnel who have undergone escape and evasion courses.

The mock execution, for instance, is a powerful persuader for those who think they have heard a night of agonising screams from a neighbouring cell, followed by a round of gunfire associated with an execution. In fact, of course, the entire charade is intended to instil a sense of despair in the prisoner and thereby obtain his cooperation, but such techniques and the sites where they proved so profitable are to be banned.

The hope is that President Obama’s new national security adviser, former senior US Marine general Jim Jones, will join the nominated new director of national intelligence, Admiral Dennis Blair, to explain the consequences and realities of hamstringing the CIA.

Already the CIA has been prevented from monitoring the Swift international money transfer system based in Brussels. This discreet exercise that dates back to 1974, but the European Commission complains that the operation has infringed privacy.

Similarly, the new administration will have to make some potentially politically painful decisions about electronic surveillance and data-mining. There are a couple of the instruments developed by the CIA and the National Security Agency which have enabled wiring diagrams to be created, linking the various players in international terrorism by their bank transfers, mobile phone conversations, text messages and internet use, without the need for a warrant issued by the Foreign Intelligence Surveillance Court.

These are all hated techniques that appal the strident leftists who dominate the Democratic blogosphere, and they are determined to eliminate what they perceive to be unacceptable remnants of the despised Bush era. The question is, how will the CIA and the NSA be able to function in such a restrictive regime?

The optimists believe that, once faced with the realities of government, and in particular the burden of office, when there are few simple black-and-white decisions but plenty of exceptional challenges in various shades of grey, the new administration will opt for safety and expediency in the area of national security.

However, with a Democratic Congress full of activists who have made numerous policy statements during the past two years, there may be little room for compromise and in those circumstances the very agencies that have provided the front-line protection against al-Qaeda may be neutered.

Denied the black sites, coercive interrogation techniques, special rendition, Guantanamo Bay, Swift monitoring and the controversial so-called ‘warrantless wiretaps’ authorised by President George W Bush, the NSA and CIA may end up entirely impotent in the face of a very determined adversary.

The implications for the agencies are profound, threatening a collapse in morale unless the White House can be persuaded to develop alternative strategies that are less likely to offend the new political leadership.

At stake, without exaggeration, is the West’s ability to interdict planned terrorist atrocities. Blanket coverage of mobile-phone and internet communications, combined with international cooperation and monitoring of bank transfers, has given the interrogators the edge in extracting information from the most recalcitrant of terrorists, and Guantanamo Bay has provided a convenient long-term dumping-ground for the incorrigibles.

All that has been achieved, in spite of legal and international criticism, is now at risk, and it is hard to imagine how hardened terrorists can be housed in the future, or persuaded to betray their accomplices, without the element of coercion that some find so unpalatable.

President Obama has pledged to find and eliminate Osama bin Laden, but how are the intelligence agencies to fulfil their mission without using the specialist skills on which they have depended in the seven years since al-Qaeda’s deadly assault on New York and Washington DC?

There are rumours that some of the agencies’ most outspoken critics have proved themselves far more supportive behind closed doors when given the facts by the agency briefers, so there exists the possibility that, having achieved political power, Congress will turn out to be rather more practical in its approach than its past rhetoric suggests.

Such a view, of course, implies a degree of political cynicism that may prove to be unjustified, but it may also presage a backlash from an electorate that voted for wholesale change, irrespective of the consequences.

Thus far, the omens for change in the intelligence community have not been encouraging. Obama’s first nominee for the post of CIA director, to be vacated by General Mike Hayden, was John Brennan, but he withdrew without explanation, and the latest nominee is an eight-term congressman, Leon Panetta, who was President Bill Clinton’s chief of staff.

If he is approved as the 21st director, he will be one of the five to have been chosen from outside the profession or the armed services. Of those five, only the businessman John McCone, a staunch Republican appointed by John F Kennedy, was considered a success.

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