On September 2 a federal judge in Detroit threw out the only jury conviction the Justice Department has obtained on a terrorism charge since 9/11. In October 2001, shortly after the men were initially arrested, Attorney General John Ashcroft heralded the case in a national press conference as evidence of the success of his anti-terror campaign. The indictment alleged that the defendants were associated with al Qaeda and planning terrorist attacks. But Ashcroft held no news conference in September when the case was dismissed, nor did he offer any apologies to the defendants who had spent nearly three years in jail. That wouldn't be good for his boss's campaign, which rests on the "war on terrorism." Here, as in Iraq, Bush's war is not going as well as he pretends.
The Detroit case was extremely weak from the outset. The government could never specify exactly what terrorist activity was allegedly being planned and never offered any evidence linking the defendants to al Qaeda. Its case consisted almost entirely of a pair of sketches and a videotape, described by an FBI agent as "casing materials" for a terrorist plot, and the testimony of a witness of highly dubious reliability seeking a generous plea deal. It now turns out that the prosecution failed to disclose to the defense evidence that other government experts did not consider the sketches and videotape to be terrorist casing materials at all and that the government's key witness had admitted to lying.
Until that reversal, the Detroit case had marked the only terrorist conviction obtained from the Justice Department's detention of more than 5,000 foreign nationals in antiterrorism sweeps since 9/11. So Ashcroft's record is 0 for 5,000. When the Attorney General was locking these men up in the immediate wake of the attacks, he held almost daily press conferences to announce how many "suspected terrorists" had been detained. No press conference has been forthcoming to announce that exactly none of them have turned out to be actual terrorists.
Meanwhile, despite widespread recognition that Abu Ghraib has done untold damage worldwide to the legitimacy of the fight against terrorism, the military has still not charged any higher-ups in the Pentagon, and the Administration has shown no inclination to appoint an independent commission to investigate. It prefers to leave the investigation to the Justice Department and the Pentagon, the two entities that drafted secret legal memos defending torture.
And in late July, resurrecting the ideological-exclusion practices so familiar from the cold war, the Department of Homeland Security revoked a work visa for a prominent Swiss Islamic scholar who had been hired by Notre Dame for an endowed chair in its International Peace Studies Institute. DHS invoked a Patriot Act provision that, like the McCarran-Walter Act of the cold war, authorizes exclusion based purely on speech. If a person uses his position of prominence to "endorse" terrorism or terrorist organizations, the Patriot Act says, he may not enter the United States. The McCarran-Walter Act, on the books until its repeal in 1990, was used to exclude such "subversives" as Czeslaw Milosz and Graham Greene. This time the man whose views are too dangerous for Americans to hear firsthand is Tariq Ramadan, a highly respected intellectual and author of more than twenty books who was named by Time magazine as one of the hundred most likely innovators of the twenty-first century.
Notre Dame is not known as a hotbed of Islamic extremism -- and Ramadan is no extremist. He argues for a modernized version of Islam that promotes tolerance and women's rights. Two days after 9/11 he called on fellow Muslims to condemn the attacks. In short, Ramadan is precisely the kind of moderate voice in Islam that the United States should be courting if it hopes to isolate al Qaeda. The barring of Ramadan reinforces the sense that the Administration cannot or will not distinguish between moderates and extremists and is simply anti-Muslim.
What is most troubling is that none of these developments -- the revelation of prosecutorial abuse in the interest of obtaining a "win" in the war on terrorism; the continuing failure to hold accountable those most responsible for the torture at Abu Ghraib; and the exclusion of a moderate Muslim as too dangerous for Americans to hear -- is an isolated mistake. Rather, they are symptoms of a deeper problem. The President thinks he can win this war by "acting tough" and treating the rule of law and constitutional freedoms as optional. With enough fearmongering, that attitude may win him the election. But it will lose the war. Bush is playing right into al Qaeda's hands by further alienating those we most need on our side.
David Cole is The Nation's legal affairs correspondent and a professor at Georgetown University Law Center.