SECTION 39: Between terrorism and criminality

"Apart from Obama, Eric Holder is the smartest man in the whole team!" It was June, and my Washington taxi's radio was tuned to hearings before the United States Congress.

Holder, the first African-American US Attorney-General, had been challenged on a decision that he had made regarding terrorist suspects. The committee member challenging him was angry, baffled even, that Holder should have the temerity to change policy.

"May I remind you that two Attorneys-General, John Ashcroft and Alberto Gonzales have taken a different position to the one you now propose?" No doubt my African-American taxi driver was a little biased in his smartness perception index.

Still, Holder's response was beautiful in its simplicity. He was not at all fazed by the challenge. He didn't respond to the implied criticism that as a black Attorney-General, he ought to defer to the ‘wisdom' of his white predecessors. He didn't bother to criticise the decisions made by Ashcroft and Gonzales. He didn't even provide a ‘teachable moment'. He simply said: "May I remind the honourable gentleman that I am the holder of the office of Attorney-General now." Holder is back in the cross hairs. He has decided that Khalid Sheikh Mohammed and four others who have been detained at the US's Guantanamo Bay prison, accused of plotting the "9/11" attacks on the World Trade Centre and the Pentagon, should be tried in civilian courts in the US, rather than military commissions in ‘Gitmo'.

Those objecting to civilian trials for the five suspected terrorists complain that since the 9/11 attacks were an ‘act of war' (a term accepted by the United Nations and the North Atlantic Treaty Organisation) the perpetrators should not be tried like ‘common criminals'. Senator Joe Liebermann complains that the suspects are not "American citizens entitled to all the constitutional rights American citizens have in our federal courts" and asserts that the suspects are"war criminals". Senator John McCain complains that civilian court trials "send a mixed message about America's resolve in the fight against terrorism.

Others warn that holding the trial in New York will make the city a terrorist target.

Behind these complaints lie the complications arising from George W. Bush's declaration of a "Global War On Terror" - a more open-ended concept than a response to the specific Afghanistan-based Al Qaeda for its complicity in the 9/11 attacks.

The other complication is the torture to which many sent to ‘Gitmo' were subjected - Mohammed was water boarded 183 times. Small wonder that there is concern that the suspects may claim constitutional rights! The US GWOT makes impossible any distinction between those resisting oppression, invasion or occupation with whatever weapons were available, and those who launch indiscriminate attacks on civilians because they want to impose their ideology on others.

Thus, Hamas and Hezbollah today, or the African National Congress under apartheid, and the Maquis in Nazi-occupied France which have discernible (and negotiable) political objectives are, or would have been lumped together with Al Qaeda and the Baader-Meinhof Group.

It will always be difficult to define terrorism. The methods used by any organisation hardly provide an infallible guide. Hamas and Hezbollah may indeed launch ‘indiscriminate' attacks on civilians, but it is unlikely that they will be given guided missiles and ‘smart' bombs so that they can be ‘selective' about targets. In any case, the performance of ‘smart' weapons in Iraq and Afghanistan, where they have enraged local public opinion because of their ... er, indiscriminate attacks on civilians, indicates rather too large a gap between promise and performance. Defining terrorists by distinguishing ‘state' from ‘non-state' actors leaves the US categorisation of the Taliban, which formed the government of Afghanistan at the time of the invasion, looking like ex post facto justification.

Although some terrorism suspects will still be tried in Gitmo, the decision to try the 9/11 suspects in civilian courts could mark the beginning of an attempt to untangle the GWOT from the criminal justice system and the laws of war by sidestepping any need to define whether an accused person is a terrorist or not. The harbouring of Al Qaeda by Afghanistan may or may not have been cause for war against that country. But murder, even mass murder, was still a crime in the United States before 9/11. That is why Timothy McVeigh was tried, convicted and executed for the 1995 Oklahoma City bombing which killed 168, in a civilian criminal court. Lieberman's suggestion that criminal suspects who are not American citizens enjoy lesser rights or different treatment before the US courts is an erroneous disservice to that country's judicial system.

Of course the US, saddled with the mistakes of the past eight years, has now to remind itself what constitutes criminal conduct, even in pursuit of a political cause.

But just as the US embarks on this task, Nigeria, which under Obasanjo successfully resisted suggestions that it should join the GWOT with sweeping anti-terrorism laws, seems to be driving in the opposite direction! President Umaru Yar'Adua has sent the National Assembly a bill that seeks to create the offence of ‘terrorism'. Whether this is a response to the Boko Haram crisis or designed to inhibit any return to violence in the Niger Delta, the fact is that beyond retrogressive proposals to criminalise the dissemination of information, there is no offence proposed by the bill that is not covered by existing criminal law. When even the US is returning to the rule of law in its response to terrorism, the government's present hunt for trouble that is not hunting for Nigeria seems astonishingly ill-timed and ill-conceived, and leaves the nation wondering all over again, what its priorities are.