Grading on the terrorist curve

ON MONDAY, I’ll be giving a final exam to 80 law students, and judging from their e-mail messages, they’re worried about grades. But this term, I’m even more worried about their grades than they are.

That’s because the Washington Post this week revealed yet another casualty of the Bush administration’s “rule of law/what rule of law?” approach to fighting terrorism: Among those detained and secretly “rendered” to a third country for interrogation was “an innocent college professor who had given [an] Al Qaeda member a bad grade.”

The background here is that the CIA seems to be having a little problem with what the agency terms “erroneous renditions.” That’s when you pick up an innocent guy and -- oops! -- send him off to a foreign country for some of that “enhanced interrogation” stuff.

In practice, terrorism suspects are often rendered to countries such as Egypt and Syria, which are known not merely for enhanced interrogation (like “waterboarding”) but for what we might call “super-sized interrogation”: electric shocks, pulling out fingernails, all that old-fashioned stuff. And if you carefully parse Secretary of State Condoleezza Rice’s recent legalistic assertion that “the United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured,” it’s apparently still cool to render suspects to countries where they will be tortured, as long as “we” don’t “believe” the acts legally constitute torture, or as long as U.S. authorities are not absolutely, 100% convinced that a detainee “will” be tortured.

But back to the case of the innocent college professor. It appears that U.S. intelligence agents at some point picked up a guy they identified as an Al Qaeda member. He was duly interrogated (you guess how). And when interrogators demanded that he cough up the names of other terrorists still at large, the suspect got revenge by rattling off a list of everyone who’d ever annoyed him, including one of his old college professors, who had really burned him up by giving him a bad course grade.

This is the kind of news calculated to send chills up a professor’s spine. The law school where I teach employs a grading curve, so giving low grades to some students is inevitable. But if one of the students who gets a bad grade from me ends up as a terrorism suspect in the hands of the, ahem, authorities, how long will it take before he fingers me? Because I’m not keen on experiencing rendition and enhanced interrogation firsthand, I’m contemplating the only thing possible to protect myself: asking any terrorists in my class to kindly identify themselves to me immediately, so I can be sure to give them a good grade.

But there are a couple of wrinkles in this plan. Because the government seems unable to avoid making errors, practically anyone might someday end up being suspected of terrorism, which makes it hard to know who ought to be given a good grade. Anyway, my law school insists on anonymous grading: Exams are identified only by number, not by student name. I can’t think of any way around that one.

Maybe I don’t need to, though, because today’s terrorists -- unlike the Al Qaeda guy who fingered his former professor -- are a clever lot, likely to get top grades through sheer brainpower. At least, this is what I have learned from watching “Sleeper Cell,” the Showtime miniseries that premiered this week. In “Sleeper Cell,” the Los Angeles-based terrorists are well-groomed young people whose plans are as sophisticated as they are lethal. The most recent episodes have involved terrorist biochemistry experts peering at anthrax samples through microscopes while the FBI struggles to keep up.

According to the 9/11 commission, this is not just TV fantasy. Commission Chairman Thomas Kean concludes that the terrorists are doing pretty well: Despite four years of the war on terror, “the threat has not abated.” Meanwhile, the U.S. government is flunking the war on terror. In this week’s 9/11 commission “report card,” the U.S. got a D for “Intelligence Oversight Reform,” a D for “Government-Wide Information Sharing,” a D for efforts to “Prevent Terrorists from Acquiring WMD” and an F on “Coalition Detention Standards.”

Yet for all their acuity, Kean and his colleagues on the 9/11 commission apparently still don’t grasp the full implications of living under a government that tolerates secret detentions, renditions and torture, and that assumes all terror suspects are guilty until proved innocent.

When you live under that kind of government, you need be mighty careful about handing out bad grades.