Losing the war for justice against the 'Islamic menace'

He was public enemy number one. His bearded visage stared at us from newspapers, magazine covers and the television, the evil genius who threatened the United States and all civilised nations: Osama bin Laden. It is two years since the US launched missile attacks on Sudan and Afghanistan in retaliation for the bombs that destroyed its embassies in Dar es Salaam and Nairobi. Operation Infinite Reach aimed at targets linked to Mr Bin Laden, we were told, and Washington led a campaign to bring him to justice, a campaign that is still under way. But in the carrying-out of that crusade, justice is precisely what has been put in question.

He was public enemy number one. His bearded visage stared at us from newspapers, magazine covers and the television, the evil genius who threatened the United States and all civilised nations: Osama bin Laden. It is two years since the US launched missile attacks on Sudan and Afghanistan in retaliation for the bombs that destroyed its embassies in Dar es Salaam and Nairobi. Operation Infinite Reach aimed at targets linked to Mr Bin Laden, we were told, and Washington led a campaign to bring him to justice, a campaign that is still under way. But in the carrying-out of that crusade, justice is precisely what has been put in question.

Ask Salah Idris. Mr Idris owned the pharmaceutical factory in Khartoum that the US blew up with cruise missiles on the pretext that it was being used to produce the precursors for VX nerve gas, a horrifying weapon that might be used against Americans. It wasn't. Or at least, no satisfactory evidence has been produced to show that it was.

In the absence of any evidence, the US turned to smear. It alleged that Mr Idris was an associate of Mr Bin Laden and froze his bank accounts - accounts held in London by a US bank. When he threatened to sue, they rapidly unfroze the accounts. But they refused to back down on their accusations.

Mr Idris has never been indicted or tried. But when senior US government officials speak, anonymously, of his guilt, there is no accountability; and Mr Idris is in effect convicted in the court of public opinion without a chance to speak, to hear witnesses or to defend himself. He is now suing for compensation and to clear his name.

There are several other people sitting in a grim building in New York in a similar position, the indicted suspects charged with the embassy bombings. They are held in total isolation, sometimes for 24 hours at a stretch, in the notorious 10 South unit of the New York Correctional Center, under what are euphemistically referred to as special administrative measures. Perhaps they are guilty; perhaps they are not. They have not had their day in court, and there is little sign that they will for some time. Their lawyers have complained about the conditions under which they are held and the lack of access, without success. One has even been denied dental floss, on the basis that he might use it to saw his way to freedom.

There is a solid body of US legislation authorising extreme measures against "terrorists". A series of top-secret US presidential decision directives authorise striking back at suspects wherever and however the US chooses: Infinite Reach. The 1996 Anti-terrorism and Effective Death Penalty Act established a new court charged with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity, on the basis of secret evidence submitted in the form of classified information. The secret evidence has always been used against Arab or Muslim suspects. It has frequently been overturned, much of it has proved unreliable and some has proved plain wrong.

There is little sign that the cases against Mr Bin Laden are going anywhere. According to the public record, none of the informants involved in the case have direct knowledge of his involvement. But then, for those involved in this operation, evidence, apparently, is of little concern. "We should have a very low barrier in terms of acting when there is a threat of weapons of mass destruction being used against American citizens," Richard Clarke, America's top counter-terrorism official, told The Washington Post. "We should not have a barrier to evidence that can be used in a court of law." Mr Clarke led the 1998 missile attacks. From virtually nothing, he has built up a huge power-base in Washington, aimed at "global terrorism", supposedly the greatest single threat to the lives and liberty of Americans.

The war on terrorism has become an all-consuming passion for some in Washington, against which they will "pay any price, bear any burden", as John F Kennedy once said of Communism. But this is about more than just a threat. It is about bureaucratic in-fighting in Washington, for a start. Since the end of the Cold War, there has been a struggle to define a new enemy (and the money and powers needed to fight it), and Clarke has come out on top. From Oliver North's old office at the National Security Council, he masterminds US counter-terrorism operations, reliving the dream of National Security Council officials since the Fifties of turning the institution into the operational arm of US defence and intelligence.

Clarke, a little-known figure even within Washington, has emerged as the Dr Strangelove de nos jours. More than anyone else, he has also been responsible for raising the spectre of an "electronic Pearl Harbour", a devastating assault by hackers on computer systems. "Why would anyone want to mount such an attack?" asked The New York Times, but Clarke had an easy answer. "To extort us," he told the newspaper. "To intimidate us. To get us to abandon our foreign policy - 'Abandon Israel or else'."

There have been plenty of "life or death" struggles such as this over the years, directed by strange men in dark Washington offices, with odd agendas and little accountability. The "war on drugs", for example, that incredibly counterproductive US policy in South America and the streets of its cities; J Edgar Hoover's fanatical crusade against Communism; or North's "neat idea" for funding the Contras in Central America. In each case, the "ends justified the means" - except that, in the end, they didn't.

The claim to international leadership that the US makes is a strong one. But it relies, crucially, on moral leadership - on persuading others that it has right as well as might on its side. Without that it still has Block III Tomahawk cruise missiles, Carrier Battle Groups and Marine Expeditionary Units, but it will lose the fight. And who is really the greater threat to freedom in America: Osama bin Laden or Richard Clarke?

The "crusade" against terrorism and the "Islamic menace" has led American officials - all too willingly - into illiberal and unacceptable measures. America's unique dominance means that no one and nothing acts as a counterweight; nor do Arabs or Muslims have anyone to speak effectively for them in Washington.

America wanted, and wants, justice for those murdered in the embassy bombings. That is a noble aspiration; those bombs killed and wounded hundreds, many with little more connection to the US than that they happened to be walking past the embassy at the time of the blast. They were evil deeds. But the way it has gone about pursuing justice has involved the US in unjust actions of its own.

It is not just pious liberalism to say that, even when pursuing terrorism, ends do not justify means. "This will be a long, ongoing struggle", Bill Clinton said after the embassy bombings, "between freedom and fanaticism, between the rule of law and terrorism." No one could disagree with the formulation; but America needs to remember which side of that struggle it is on.

andrewmarshall@prodigy.net