Evidence, weak states, and identifying terrorists after 9/11: Africans in the Crosshairs of America's War on Terror

Introduction

We also have to work sort of the dark side, if you will. We're going to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussions, using sources and methods that are available to our intelligence agencies if we're going to be successful.

(Vice President Dick Cheney speaking on Meet the Press, September 16, 2001)¹

Guantanamo Diary is the firsthand account of a young Mauritanian man, Mohamedou Ould Slahi, who in 2001 found himself extrajudicially detained and incarcerated, clandestinely shipped around the world on a journey that would last until his release in 2016. An alleged terrorist incarcerated for years without due process of American law, Mr. Slahi joins the ranks of others accused of terrorism who were also clandestinely and extrajudiciously detained in the name of defeating Al Qaeda or other terrorist groups. Other well-known cases, such as Moazzam Begg, have since been exonerated in courts of law, but the victims live on with the stigma of having been accused of being terrorists.² Still others, such as the Bagram detainee known only as Dilawar, have died in U.S. custody as a result of what the Bush Administration dubbed "enhanced interrogation techniques."³ In plain English, Dilawar was severely beaten, denied medical treatment, and died. He was never tied to any terrorist act and seems to have simply been in the wrong place at the wrong time. These men have one blaring thing in common: they were all arrested on the hearsay of others who themselves had perverse incentives for reporting these men to the authorities.

Such cases reveal flaws in the intelligence and legal structures that have been put in place to humanely investigate, adjudicate, and prosecute terrorists. They illustrate how easily people with little power living in states with comparatively little power on the international stage can fall into the "dark side"—the shadows of the so-called War on Terror. The first part of this essay focuses on the issues around defining "terrorism" and "terrorists" in the American legal code. The second part explores the implications of these evidentiary flaws for vulnerable people living in West Africa.

Evidence and Terrorism

That information gathered on the "dark side" can be dubious, incomplete, incorrect, or used as a political weapon should not surprise any American—or concerned world citizen—who has lived through the immediate aftermath of 9/11. The failure of the intelligence community to sufficiently warn the government about the 9/11 attacks is well-documented in the 9/11 Commission Report.⁴ Further, the use of poor and politicized intelligence to justify the 2003 Iraq War is also a well-known and costly intelligence failure.⁵ In short, while at its best, intelligence is an integral part of national security, it can be flawed and wielded for ill. Despite the fact that these deficiencies in intelligence exist, the secretive nature of intelligence means that such deficiencies are not subject to public debate or scrutiny. We rely on the professionalism of our military and intelligence community—and in America, the military and intelligence community are highly professional—to have these debates on the merits of the evidence in the shadows. Nevertheless, mistakes can happen and intelligence can be politicized, especially when it remains "in the shadows" and outside the scrupulous public eye.

Against this backdrop, how do we know who is a terrorist? That is the crux of the issue we grapple with in Africa and around the world.

America's legal framework and implications for Africa

In the United States, foreign terrorists are defined under 18 U.S. Code § 2331. Definitions.⁶ The definition of "terrorism" is not especially straightforward, though the tools of terrorism explicated under the law—such as material support to terrorists or crimes of terrorism such as taking hostages and hijacking airplanes—are more so. The U.S.'s legal code governing the designation of Foreign Terrorist Organizations (FTOs) is 8 U.S...