Twelve years into America’s “war on terror,” it is time to admit that it has failed catastrophically, unleashing violence, war and instability in an “arc of terror” stretching from West Africa to the Himalayas and beyond.  If we examine the pretext for all this chaos, that it could possibly be a legitimate or effective response to terrorism, it quickly becomes clear that it has been the exact opposite, fueling a global explosion of terrorism and a historic breakdown of law and order.

The U.S. State Department’s “terrorism” reports [3] present a searing indictment of the “war on terror” on its own terms.  From 1987 to 2001, the State Department’s “Patterns of Global Terrorism” reports had documented a steady decline in terrorism [4] around the world, from 665 incidents in 1987 to only 355 incidents in 2001.  But since 2001, the U.S. “war on terror” has succeeded in fueling the most dramatic and dangerous rise in terrorism ever seen.

The State Department reports seem, at first glance, to show some short-term success, with total terrorist incidents continuing to decline, to 205 incidents in 2002 and 208 in 2003.  But the number of more serious or “significant” incidents (involving death, serious injury, abduction, kidnapping, major property damage or the likelihood of such results) was already on the rise, from 123 incidents in 2001 to 172 in 2003.

But then the 2004 report [5], due to be published in March 2005, revealed that the number of incidents had spiked to an incredible 2,177, including 625 “significant” incidents, even though the report excluded attacks on U.S. occupation forces in Iraq.  Secretary of State Condoleeza Rice took decisive action, not to urgently review this dangerous failure of U.S. policy, but to suppress the report.  We only know what it said thanks to whistleblowers who leaked it to the media, and to Larry Johnson [6], an ex-CIA and State Department terrorism expert and a member of Ray McGovern’sVeteran Intelligence Professionals for Sanity [7].

Rice eventually released a reformatted version of the 2004 report, ostensibly replacing “Patterns of Global Terrorism” with a new report titled “Country Reports on Terrorism” that excluded all statistical data.  The State Department has continued to publish “Country Reports on Terrorism” every year, and was forced to include a “statistical annex” beginning with the report for 2005.  The reports also include disclaimers that this data should not be used to compare patterns of terrorism from one year to the next because of the “evolution in data collection methodology”.  In other words, a report that used to be called “Patterns in Global Terrorism” should not be used to study patterns in global terrorism!

So, what is the State Department afraid we might find if we used it to do just that?  Let’s take a look.  The politicization of these reports certainly undermines their reliability, but, as Secretary Rice understood verywell, the dramatic rise in global terrorism that they reveal is undeniable.

The numbers obviously spiked in Iraq and Afghanistan while under U.S. occupation, so we’ll exclude the figures for those periods in those countries.  The rationale for the “war on terror” was always that, by “fighting them there”, we wouldn’t have to “fight them here”, so we’ll just look at the effect “here” and everywhere else.

On that limited basis, the State Department reports nonetheless document an explosion of terrorism, from 208 incidents in 2003 to 2,177 in 2004 to 7,103 incidents in 2005. Since then, the total has fluctuated between a high of 7,251 incidents in 2008 and a low of 5,029 incidents in 2009, after President Obama’s election temporarily raised hopes of a change in U.S. policy.  The State Department has not issued a report for 2013 yet, but the number of “terrorist” incidents in 2012 remained at 5,748, documenting an intractable crisis that is the direct result of U.S. policy.

The ineffectiveness of the war on terror is intricately entwined with its illegitimacy.  In my book,Blood On Our Hands: the American Invasion and Destruction of Iraq, I argued that the illegitimacy of the hostile U.S. military occupation of Iraq was at the root of all its other problems.  The U.S. forces who illegally invaded the country lacked any real authority to restore the rule of law and order that they themselves had destroyed.  Even today, two years after expelling U.S. forces, the Iraqi government installed by the U.S. occupation remains crippled by fundamental illegitimacy in the eyes of its people.

The United States’ “war on terror” faces the same problem on a global scale.  The notion of fighting “terror with terror” or a “war on terror” was always fundamentally flawed, both legally and in its prospects for success.  As Ben Ferencz [8], the only surviving prosecutor from the Nuremberg war crimes trials, explained to NPR on September 19th 2001 [9], a week after the mass murders of 2,753 people in his hometown, New York City:

“It is never a legitimate response to punish people who are not responsible for the wrong done.  We must make a distinction between punishing the guilty and punishing others.  If you simply retaliate en masse by bombing Afghanistan, let us say, or the Taliban, you will kill many people who don’t approve of what has happened.  I wouldn’t say there is no appropriate role (for the military), but the role should be consistent with our ideals… our principles are respect for the rule of law, not charging in blindly and killing people because we are blinded by our tears and our rage.  We must first draw up an indictment and specify what the crimes were, calling upon all states to arrest and detain the persons named in the indictment so they can be interrogated by U.S. examiners… I realize that (the judicial process) is slow and cumbersome, but it is not inadequate… We don’t have to rewrite any rules.  We have to apply the existing rules.”

Ferencz took issue with the use of terms like “war”, “war crimes” and “terrorism.”

“What has happened here is not war in its traditional sense…  War crimes are crimes that happen in wartime.  There is confusion there…  Don’t use the term “war” crimes, because that suggests there is a war going on and it’s a violation of the rules of war.  This is not in that category.  We are getting confused with our terminology in our determination to put a stop to these terrible crimes… To call them “terrorists” is also a misleading term.  There’s no agreement on what terrorism is.  One man’s terrorism is another man’s heroism…  We try them for mass murder.  That’s a crime under every jurisdiction and that’s what’s happened here and that is a crime against humanity.”

British military historian Michael Howard told NPR that U.S. leaders were making “a very natural but a terrible and irrevocable error” in declaring a “war on terrorism.”  He elaborated in a lecture in London [10] a few weeks later:

“…to use, or rather to misuse the term “war” is not simply a matter of legality, or pedantic semantics.  It has deeper and more dangerous consequences.  To declare that one is “at war” is immediately to create a war psychosis that may be totally counter-productive for the objective that we seek.  It will arouse an immediate expectation, and demand, for spectacular military action against some easily identifiable adversary, preferably a hostile state…”

In the U.S. Congress in 2001, Barbara Lee stood alone [11] against a sweeping Authorization for the Use of Military Force (AUMF), giving the president the authority to use “all necessary and appropriate force against those nations, organizations, or persons” whom he judged to have “planned, authorized, committed or aided” the mass murders of September 11th.

Barbara Lee implored her colleagues not to “become the evil we deplore,” but she was the only Member with the clarity and courage to vote “No” to the AUMF.  Twelve years later, she has 31 co-sponsors forH.R. 198 [12], a bill to finally repeal the 2001 AUMF.  They include former civil rights leader John Lewis, who said recently [13], “If I had to do it all over again, I would have voted with Barbara Lee. It was raw courage on her part. So, because of that, I don’t vote for funding for war. I vote against preparation for the military. I will never again go down that road.”

From the outset, few Americans understood that the “war on terror” was not legally a real war in which the civilian rule of law was suspended.  Elizabeth Wilmshurst resigned as Deputy Legal Advisor to the British Foreign Office in protest at the U.K.’s “crime of aggression” [14]against Iraq in 2003.  A year later, she told theIndependent [15], “This rather extraordinary war on terror, which is a phrase that all lawyers hate… is not really a war, a conflict against terror, any more than the war on obesity means that you can detain people.”

As the Obama administration took office in 2009, an Eminent Jurists Panel [16] convened by the International Commission of Jurists, and headed by former President of Ireland Mary Robinson issued a report on the U.S. response to terrorism since 2001.  The report concluded that the U.S. government had confused the public by framing its counter-terrorism activities within a “war paradigm.”  It explained,

“The U.S.’ war paradigm has created fundamental problems.  Among the most serious is that the U.S. has applied war rules to persons not involved in situations of armed conflict, and, in genuine situations of warfare, it has distorted, selectively applied and ignored otherwise binding rules, including fundamental guarantees of human rights laws.”

Like Ben Ferencz, the ICJ panel insisted that established principles of law “were intended to withstand crises, and they provide a robust and effective framework from which to tackle terrorism.”

But Barack Obama was an unlikely candidate to restore the rule of law to U.S. policy, to demilitarize the “war on terror” or to derail the gravy train of the largest military budget since World War II.  Hislong-term ties to General Dynamics CEO Lester Crown [17] and his thorough vetting by Crown and other military-industrial power-brokers ensured that the 2008 election was the first in 14 years in which Democrats raised more campaign cash from the weapons industry than Republicans, even after the Republicans almost doubled the military budget in 8 years and nominated industry darling John McCain for president.

A persistent part of the Obama myth is his description of himself as a “constitutional law professor.”  While serving as an Illinois State Senator, Mr. Obama did have a part-time job as a lecturer teaching 3 two-hour seminars per year at the University of Chicago in a program that brought politicians and other prominent people into the law school to give students a taste of the “real world.”  Most of the seminars were on public interest law or racism, not constitutional law [18], but in the looking-glass world of Obama mythology, this has transformed him into a “constitutional law professor” for political purposes.

Obama has failed to close Guantanamo, escalated the longest and most unpopular war [19] in U.S. history in Afghanistan, maintained the largest military budget since World War II [20], conducted23,000 air strikes [21] (mostly in Afghanistan [22]), launched or expanded covert and proxy wars in Pakistan, Yemen, Somalia, Libya and Syria, and deployed U.S. special forces to 120 countries [23].

But perhaps the signature initiative of Obama’s war policy has been the expansion of assassination operations [24] using unmanned drones and JSOC death squads.  These operations violate still-standing executive orders [25] by previous presidents that prohibit assassination by U.S. forces or officials.  They are not legally covered by the 2001 AUMF, because very few of the people he is killing were involved in the crimes ofSeptember 11th, as former State Department Legal AdviserJohn Bellinger pointed out to the Washington Post [26] in 2010.

Just as Bush administration lawyers wrote memos claiming that torture was not torture, Obama’s have reportedly written memos claiming that assassination is not assassination and that innocent civilians in half-a-dozen countries are somehow implicated in September 11th and therefore legitimate targets under the 2001 AUMF.  But after Bush’s torture memos were widely ridiculed as legal fig-leaves to justify war crimes, the Obama administration has drawn a veil of secrecy over its assassination memos.  If Obama’s legal training has taught him nothing else, it’s that he can’t afford to expose his illegitimate cover for war crimes to public scrutiny and global outrage.

As the U.N.’s Special Rapporteur for Extrajudicial Executions Philip Alston wrote in June 2010 [27],

“Targeted killings pose a rapidly growing challenge to the international rule of law, as they are increasingly used in circumstances which violate the rules of international law… The most prolific user of targeted killings today is the United States, which primarily uses drones for attacks… the United States has put forward a novel theory that there is a “law of 9/11″ that enables it to legally use force in the territory of other states as part of its inherent right to self-defense on the basis that it is in an armed conflict with Al-Qaeda, the Taliban and “associated forces,” although the latter group is fluid and undefined.  This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter.”

The prohibition against the threat or use of force in Article 2.4 of the UN Charter [28] is the foundation of peace in the modern world.  As Alston implied, it is either an unintended victim or an intended target of the “war on terror.”  The history of U.S. war policy since the end of the Cold War suggests the latter.  U.S. officials came to see the Charter’s prohibition on the threat or use of force as a constraint on their ability to exploit the “power dividend [29]” they gained from the collapse of the Soviet Union.  For ten years, they struggled to sell the world on new interventionist doctrines of “reassurance [30]“, “humanitarian intervention [31]“, “responsibility to protect [32]” and “information warfare [33].”  In the Clinton administration’s 1997 Quadrennial Defense Review (QDR) [34], itclaimed the right to use unilateral military force to “defend vital national interests,” including “preventing the emergence of a hostile regional coalition…(and) ensuring uninhibited access to key markets, energy supplies and strategic resources.”

As the British Foreign Office’s top Legal Adviser [35] told his government during the Suez Crisis in 1956, “The plea of vital interest, which has been one of the main justifications for wars in the past, is indeed the very one which the U.N. Charter was intended to exclude.”  So the implicit threat in Clinton’s QDR was a violation the U.N. Charter, and his attack on Yugoslavia in 1999 was a flagrant violation and a crime of aggression.  When British Foreign Secretary Robin Cook told Secretary Albright the U.K. was having difficulty “with its lawyers” over the plan to attack Yugoslavia, she told him the U.K. should “get new lawyers.”

When planes crashed into the World Trade Center and the Pentagon on September 11th, counter-terrorism still seemed an unlikely pretext for overturning the U.N. Charter. But, within hours, according to Under-secretary Cambone’s notes [36] obtained by CBS News, Defense Secretary Rumsfeld told a meeting at the Pentagon, “Judge whether good enough hit S.H. (Saddam Hussein) at same time – not only UBL (Usama Bin Laden)… Go massive.  Sweep it all up.  Things related and not.”

Twelve years later, as Michael Howard predicted, it is much harder to unscramble the consequences of America’s “natural but terrible” embrace of open-ended aggression and militarism.  But underlying all the crimes and atrocities committed in our names is the fiction that we are at “war” with “terror”, whatever that can possibly mean.  What it means in practice is that the U.S. government has applied an opportunistic soup of peacetime and wartime rules to justify whatever it wants to do, to use force anywhere in the world, to kill or maim anybody, to spy on anybody, to violate any treaty or human rights law and to project power anywhere, to effectively place itself beyond the rule of law.  To paraphrase Richard Nixon [37], “When the United States does it, that means that it is not illegal.”

The analysis of international lawyers like Ben Ferencz and other experts gives us a clear road-map to ending the war on terror and starting to undo its terrible consequences. There is a surprisingly clear consensus across the political spectrum on what needs to be done.

On the one hand, we have Noam Chomsky saying [38], on October 18th 2001, that, “The only way we can put a permanent end to terrorism is to stop participating in it.”  On the other hand we have Eliza Manningham-Buller, the first woman to head MI5, the U.K.’s domestic intelligence agency, describing a meeting at the British Embassy [39] in Washington on September 12th 2001, where “there was one thing we all agreed on: terrorism is resolved through politics and economics, not through arms and intelligence… I call it a crime, not an act of war… I have never thought it helpful to refer to a “war” on terror any more than a war on drugs.”

Ending the failed war on terror means restoring the rule of law to U.S. policy – not by secret interpretations of extraordinary laws granting unconstitutional emergency powers, but by genuine compliance with U.S. law and international treaties like the U.N. Charter and the Geneva Conventions.  If we allow our government to persist in this failed and disastrous policy, it will continue to corrupt and erode its own authority, it will destabilize the entire world and it will leave us defenseless in the face of real existential dangers like climate change and nuclear war.

Nothing could be more urgent than ending the failed war on terror (FWOT).  These are the practical steps we must demand of the President and Congress:

1) Pass Barbara Lee’s bill, H.R.198 [40], to repeal the 2001 Authorization for the Use of Military Force.

2) Close the concentration camp at Guantanamo Bay.  Transfer accused criminals to stand trial in legitimate courts under fair trial standards, and release and compensate people wrongly imprisoned and/or tortured.

3) Halt all drone strikes, assassinations and military or paramilitary operations that violate the U.N. Charter, the Geneva Conventions or other established principles of international law.

4) Substantially cut the U.S. military budget to end the most expensive and destabilizing unilateral arms build-up in the history of the world.

5) Acknowledge that the U.S. has committed aggression, torture and other war crimes during the past 12 years.  Restore legal accountability and compensate victims.

6) Make a new commitment to good faith diplomacy and cooperation with other countries to deal with the world’s pressing political, economic, social and environmental problems, including the explosion of terrorism caused by the war on terror.

Nicolas J. S. Davies is author of Blood On Our Hands: The American Invasion and Destruction of Iraq. He wrote the chapter on “Obama At War” for the just released book, Grading the 44th President: A Report Card on Barack Obama’s First Term as a Progressive Leader.