The Course of Least Resistance: Ignoring the Lessons of History in Responding to ISIS

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

If the goal of the Islamic State terrorists who launched a brutal and cold-blooded attack on hundreds of innocent civilians in Paris was to spread fear and induce overreaction, they have plainly succeeded. The attacks, which brought to the heart of Europe the sorts of horrific calamities that have become all too frequent in Iraq, Syria, Afghanistan, Pakistan, and North Africa, have triggered predictable responses, not only from the French, but from American politicians as well. While the French reaction is understandable, if misguided, too many of the American responses appear to be no more than sheer political opportunism. Both sets of reactions are almost certain to be viewed in the light of history as overreaching. With the exception of President Obama, who has refused to stoop to fear-mongering, it seems that very few of us on either side of the Atlantic have learned from our past mistakes.

When al-Qaeda terrorists hijacked airliners and flew them into the World Trade Center and the Pentagon 14 years ago, we, too, overreacted. The Bush administration promptly declared a global “war on terror.” It authorized the NSA to conduct warrantless wiretapping in violation of a criminal statute, and directed the CIA to disappear terrorism suspects into secret prisons in order to subject them to torture and inhumane interrogation tactics. It okayed the CIA to abduct other suspects and render them to foreign countries that its own State Department had condemned for using torture as an interrogation tool. And it asserted the right to use wartime powers for detention of “enemy combatants,” while refusing to abide by the limits the laws of war place on such detentions.

At the time, much of Europe, including France, was highly critical of the US response. One of the most common complaints was that a “war on terror” is fundamentally ill-conceived. Terrorism is a criminal problem, critics maintained, and declaring war only gives the terrorists what they want — status as warriors, rather than brutal criminals. (The French, of course, have their own history of overreaching, in particular in the deployment of collective responsibility and torture in opposing Algerian independence.)

Yet one day after the Paris attacks, French President François Hollande declared a war on terrorism. At the same time, he sought — and has received — extraordinary emergency powers from the French National Assembly. They include the authority to ban radical groups, suppress websites that glorify terrorism, conduct searches and arrests without warrants, and impose house arrest and electronic ankle bracelets on suspects not convicted of any crime. President Hollande also wants, and will probably get, the power to strip French citizenship from dual nationals who are deemed security threats in order to expel them. In just the first week following the Paris attacks, French authorities carried out more than 414 raids, arrested 64 people, and placed 118 under house arrest. One raid, in the Paris suburb of St. Denis, resulted in the death of the man suspected of being the mastermind of the Paris attacks. But it remains to be seen how many of the other raids, or individuals rounded up, are in any way connected to terrorism.

If history is any guide, nearly all of those targeted will be Muslim — but few if any will be terrorists. In the wake of the 9/11 attacks, the Bush administration rounded up thousands of Arab and Muslim foreign nationals in the United States on pretextual immigration charges and subjected them to lengthy preventive detention while it investigated them; none turned out to be terrorists. In 1919, when terrorist bombs exploded in eight different cities in the United States on the same day, the Justice Department responded by using immigration powers to round up and deport thousands of foreign nationals — not for their involvement in the attacks, but for their alleged connections to the Communist Party. None was ever charged with the bombings. And in World War II, President Franklin Delano Roosevelt authorized the internment of over 110,000 Americans and foreign nationals, solely because of their Japanese ancestry. Again, none was convicted of espionage or sabotage, the ostensible reason for the internment order.

These measures are driven by an understandable concern to prevent the next attack in times of crisis. But when it’s not evident where the next attack might arise, government officials inevitably reach more broadly than necessary, sweeping up countless persons whose only “crime” is to be of the same nationality, ethnicity, or religion as the suspects. And in the long run, such responses often do more harm than good, alienating the very communities with which the authorities need to develop healthy ties if they are to have a chance at identifying potential problems before they manifest themselves in another attack. New York City’s Police Commissioner Bill Bratton ended the NYPD’s controversial program of monitoring mosques and Muslim businesses when he took office, and recently asserted that “not one single piece of actionable intelligence ever came out of that unit in its years of existence.” But that program has caused deep distrust in the Muslim communities of New York and New Jersey.

While the French overreaction may be comprehensible, if misguided, the reactions of American politicians are not. Republican Presidential candidates have fallen over themselves to advance the most xenophobic and bigoted responses. Ben Carson compared potential terrorists to “rabid dogs,” and urged screening of all Syrian refugees — even though refugees are already more carefully screened than any other foreign national seeking entry to the United States. Donald Trump, never to be outdone, said that if he were president he’d institute registration, a database, and perhaps special ID cards for all Muslims in the United States. Ted Cruz has proposed a religious litmus test, suggested that we accept only Christian refugees from Syria, a majority-Muslim country. And on Thursday, November 19, the House of Representatives voted to halt all admission of Syrian refugees, with nearly 50 Democrats joining the Republicans, despite a veto threat from President Obama, who has admirably kept his cool during the crisis, and has rightly condemned the Republicans’ demagoguery.

It is worth underscoring the singular courage of President Obama’s response. The easy thing to do in times like this is to play to fear, to appeal to the least common denominator, and to target foreign nationals, arguing that we can beef up our security by denying rights to others.  As Louis Post, an immigration official who opposed the Palmer Raids, wrote of that period, “the delirium caused by the bombings turned in the direction of a deportation crusade with the spontaneity of water seeking out the course of least resistance.” Few leaders have been able to withstand “the course of least resistance.” Thus far, Obama has.

With reactions like those of Carson, Trump, and Cruz, one might even begin to feel nostalgic for George W. Bush, who despite his many faults, understood from the outset that it was critical not to confuse terrorism with Islam. Just six days after 9/11, Bush visited a mosque and insisted that the conflict was not with Muslims, but with terrorists. The Republican candidates would do well to pay heed to that message. Nothing serves ISIS’s interests better than portraying the conflict as pitting Islam against the West. Targeting innocent Muslims in the name of preventing the next attack will inflict needless suffering, make us less, not more safe, and play into ISIS’s hands. So far, only President Obama seems to understand that.

ISIS undoubtedly poses an unacceptable threat. We and other nations will need to use all the tools available — criminal, diplomatic, economic, and military — to address the problem. Hillary Clinton, to her credit, responded to the Paris attacks not by fear-mongering, but by laying out a concrete plan for defeating ISIS. As Steve Coll makes abundantly clear in a recent comment in the New Yorker, there is no straightforward way to achieve that goal at the moment. In the meantime, we need to manage the risk. And if history teaches us anything, it is that invoking unnecessary emergency powers, sweeping up thousands of innocents, and calling for religious registration and databases is mismanagement of the worst kind. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).