The blame game for such doomsday fears ranges far and wide. Many pinpoint the Supreme Court’s 2023 decision to grant immunity to presidents for their core official acts, essentially removing any restraints on Trump’s agenda of retribution and revenge. Some, like Democratic Senators Elizabeth Warren and Richard Blumenthal, see loopholes in the law as the basis for their concern about the future and are urging Congress to pass legislation that will place additional constraints on the deployment of the military on American soil. Others argue that the Constitution itself is the problem. In his new book, No Democracy Lasts Forever: How the Constitution Threatens the United States, Berkeley Law School Dean Erwin Chemerinsky even suggests that it may be time for a new constitution.

But those involved in the fear and blame game might do well to take a step back and reflect for a moment on how we got here. Today’s crisis has been evolving for so many years now. In fact, much (though admittedly, not all) of what we’re witnessing today might simply be considered an escalation of the dire turn that this country took after the attacks of September 11, 2001, nearly a quarter of a century ago. 

“Quaint” and “Obsolete”

It was January 2002 when White House Counsel Alberto Gonzales used the two words “quaint and obsolete,” whose echoes remain eerily with us to this very day (and seemingly beyond). The occasion was a debate taking place at the highest levels of the administration of President George W. Bush in the aftermath of the 9/11 attacks. By then, this country had invaded Afghanistan and authorized the opening of a new detention center at Guantánamo Bay, Cuba, ominously offshore of American justice, for captives of what already was being called the Global War on Terror. Two weeks after the first prisoners arrived at that prison camp on January 11th, administration officials were already wondering which, if any, laws should apply when it came to the treatment of such prisoners.

Gonzales, who was to become the attorney general in Bush’s second term, laid out the options for the president. At issue was whether the Geneva Conventions — a set of treaties established in the wake of the atrocities of the Second World War — applied to the United States in its treatment of any prisoners from its war on terror.

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In a memo to President Bush, Gonzales noted that Department of Justice lawyers had already concluded, when it came to al-Qaeda and Taliban (Afghan insurgents in 2001, now in charge of the country) captives, the answer was no. Gonzales agreed, stating that “the war against terrorism is a new kind of war.” The laws of war, he told the president, were “obsolete” in the current context and the laws and norms requiring humane treatment for enemy prisoners had been “render[ed] quaint,” given this new kind of war.  Accordingly, the Bush administration took the position that the Geneva Conventions did not apply to the prisoners they had already captured. As a result, in the years to come, the indefinite and arbitrary detention of about 780 men would be institutionalized and disregard for the law would become a regular, if secret, part of the war on terror — an approach that would lead to the practice of torture at what came to be known as CIA “black sites” globally.

Nor would that be the only situation in which old laws were deemed outdated on national security grounds. 

The Wider Framework

At the heart of such a rejection of the law was the determination that the president had primary, if not ultimate, authority when it came to national security. As Princeton historian Julian Zelizer has put it, top Bush administration officials “claimed that executive power was essential to fighting the war.” Members of Congress generally agreed and facilitated the shift to ever more solitary executive power in the name of war, setting a template for yielding some of its constitutional and statutory powers in matters of war to the president. One week after 9/11, Congress passed an Authorization for the Use of Military Force (AUMF) that granted the president the power “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”  

Subsequently, other laws were bent, bypassed, or even broken in the name of keeping the nation safe. Congress also further enhanced the powers of the executive by passing the USA Patriot Act which, among other things, weakened the Fourth Amendment’s protections against the surveillance of American citizens. Prior to 9/11, such protections had remained strong. After 9/11, as Brown’s Costs of War Project reports, “These mass surveillance programs allow[ed] the U.S. government to warrantlessly and ‘incidentally’ vacuum up Americans’ communications, metadata and content, and store their information in data centers and repositories,” sacrificing standing protections in the name of greater security.

Nor would that be the end of the matter. In the name of national security, the country’s law enforcement entities would also turn their backs on prohibitions against discrimination based on race, religion, or national origin as laid out, for example, in the Civil Rights Act of 1964. As a Costs of War Project report summed it up, the “Special Registration” requirement “announced in 2002 required all males from a list of Arab and Muslim countries [to] report to the government to register and be fingerprinted.” According to the ACLU, that program (known as NSEERS) would end up affecting foreign nationals from 25 countries.

Worse yet, such deviations from constitutional protections and the law did not come to an end with the Bush administration. Although President Barack Obama would issue an executive order restoring adherence to the laws banning torture and end the NSEERS program (which, the ACLU noted, “did not achieve a single terrorism-related conviction” despite “tens of thousands of people having been forced to register”), there were other key areas in which his administration did not reverse past policy — anything but, in fact. “Early in [President Obama’s] administration,” as historian Kathryn Olmstead notes, “the new president signaled his intention to continue Bush’s surveillance policies.” Though “surprised by the extent of the spying” in the domestic intelligence program, Obama’s team nonetheless “quickly agreed to continue Bush’s mass surveillance program.”

In addition, by escalating a global drone program of “targeted killings,” the Obama administration would forge its own path toward weakening legal protections in the name of national security. During the Obama years, on what came to be known as “Terror Tuesdays,” national security officials presented the president with a list of names, all potential targets to be captured or killed. (It would come to be known in the media as “the kill list.”) As NPR summed it up, Obama, “wishing to be seen as a restraining influence,” would weigh in on the final list of names. According to the Bureau of Investigative Journalism, “A total of 563 strikes, largely by drones, targeted Pakistan, Somalia and Yemen during Obama’s two terms, compared to 57 strikes under Bush.”

Leaving those programs on the table for the next president would be — and remains — a prescription for disaster.

Trump and the Tactics of the War on Terror

Trump’s first presidency combined the strategies of Bush and Obama when it came to the war on terror. Though it was little noted then, he launched an unprecedented number of drone strikes, tripling Obama’s numbers by 2022, including the targeted assassination of a high-ranking Iranian official, Revolutionary Guard leader Qassim Soleimani. Political scientist Micah Zenko noted that, despite his claims of being non-interventionist, Trump proved to be “more interventionist than Obama: in authorizing drone strikes and special operations raids in non-battlefield settings (namely, in Pakistan, Yemen, and Somalia).” 

The 45th president’s disregard for legal restraints took other war-on-terror policies to a new level. Within a week of his inauguration, President Trump had issued an executive order that came to be known as “the Muslim Ban,” forbidding citizens from seven predominantly Muslim countries entry to the United States. And like his predecessor, he showed little interest in sunsetting the expansive surveillance authority he had inherited.

In fact, Trump brought the tools and tactics designed for the war on terror to the “home front,” notably in his approach to dissent. He attacked Black Lives Matter protesters as enemies, labeling them “terrorists.” He made discrimination against foreigners a national policy at the onset of his first presidency, announcing his plans to detain and deport millions of undocumented immigrants and promising to institute policies that intentionally separated migrant children from their families. He even threatened to widen the uses of Guantánamo: “…[W]e are keeping [Guantanamo] open … and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.” Wondering who those “bad dudes” would be, NPR noted that captives in the war on terror were mostly a thing of the past and reminded listeners of an interview in which Trump had said such suspects should be tried by military commissions, the fraught trial system already in place there.

When Joe Biden became president, he curtailed a number of the excesses of the war on terror from the Trump years, even issuing a proclamation revoking the Muslim ban. When it came to drone strikes, he lessened them substantially, leaving them “far from their peaks under the Obama and Trump administrations.”  In addition, he put new limits on their use going forward. In a striking gesture, Director of National Intelligence Avril Haines pledged to “promote transparency” in place of the excessive secrecy that had underpinned the torture program, surveillance abuses, and the targeted-killing program. Still, all too much remained ongoing or fully capable of being revived in the new Trump years.

Bringing It All Back Home

Which brings us to expectations — or fears — of what will happen in a second Trump presidency. When it comes to the use of force, detention, discrimination, and the erasure of constitutional protections, Trump has already promised to bring the broad counterterrorism authority of earlier in this century to bear on the home front.

Let’s begin with his promises to institute discriminatory policies based on race and national origin. As of today, the incoming administration has pledged to round up, put in camps, and oversee the mass detention and deportation of undocumented immigrants from Latin America in particular, potentially combining a detention nightmare (lacking due process and underpinned by massive discrimination) with suspicion often based on national origin rather than specific evidence of criminal behavior — an echo of the war on terror’s early years.

In place of national security, Trump has promised to substitute, in the words of the 2024 Republican platform, the “threat to our very way of life,” a term that expands the vagueness encapsulated in “terror” and “terrorism” to a new level. Notably, in the run-up to the 2024 election he had already made it crystal clear that the path from the war on terror abroad to his internal policy plans would be important to his administration. When candidate Trump promised to use the military to counter “the enemy from within,” a spokesperson clarified the meaning for the press. As the Washington Post reported at the time, Trump spokesperson Steven Cheung acknowledged the way the candidate was linking his political enemies to terrorists. Trump, he explained, was “equat[ing] the prospect of unspecified efforts by the left during the elections with the recent arrest of an Afghan man in Oklahoma, who is accused of plotting an Election Day attack in the United States in the name of the Islamic State group.” Cheung then furthered the analogy by adding, “President Trump is 100% correct — those who seek to undermine democracy by sowing chaos in our elections are a direct threat, just like the terrorist from Afghanistan that was arrested for plotting multiple attacks on Election Day within the United States.”

Where Are We Today?

While the war on terror has receded into the background of our lives, its premises and tactics remain all too readily available. Its expansion of presidential powers, coupled with the Supreme Court’s recent immunity decision when it comes to more or less anything a president does in office, leaves the country in a state of imminent peril. Surveillance powers remain remarkably broad. Drone-strike authorities remain in place, even if, in the wake of the Biden years, curtailed for now. And the prospect of indefinite detention as a codified element of American policy remains possible not only at Guantanamo but for migrants across the United States. And to top it all off, Congress continues to be unwilling to restrict a president’s war powers in any significant way, having repeatedly refused to repeal or replace that original 2001 Authorization for the Use of Military Force in which neither time, nor geographical limits, nor even precise limits on the definition of the enemy exist. 

If only, as a nation, we could look beyond the tumultuous context of the current moment and imagine how to make our way to a safer, more sustainable future. Sadly, despite the dangers that may lie ahead, it’s not just partisan politics, or economic disarray, or the fragile state of the world that has brought us to this point. It’s our own negligence in accepting the dismantling of the laws and norms that had guided us prior to 9/11 and refusing ever since to restore our once-upon-a-time respect for the rule of law and for one another.

Copyright 2024 Karen J. Greenberg

Via Tomdispatch.com

Presidential Powers

Throughout American history, presidents have repeatedly sought to increase their powers, nowhere more so than in the context of war. As historian James Patterson has pointed out, “War and the threat of war were major sources of presidential power from the beginning.” Whether it was George Washington’s insistence that he was the one to formulate foreign policy when it came to diplomacy, treaties, and more; Thomas Jefferson’s assertion of complete control over whether or not to attack the Barbary Pirates; James Polk’s decision to take actions which risked war with Mexico; or Abraham Lincoln’s “sweeping assertions of authority” in the Civil War era, executive claims to authority when it comes to matters of foreign relations and warfare have been a persistent feature of American history.

The twentieth century saw a continued rise in the powers of the presidency. As historian Jeremi Suri noted in his book The Impossible Presidency, the four terms of Franklin D. Roosevelt were a transformative moment, essentially multiplying the responsibilities of the president with the ultimate goal of “mak[ing] the national executive the dominant actor in all parts of American life.” The presidents who followed Roosevelt continued to display such enhanced powers, especially when it came to foreign affairs. 

As legal scholar Matt Waxman has reminded us, FDR’s successor, Harry Truman, went to war in Korea without congressional authorization. Dwight D. Eisenhower, who did consult with Congress over the need to protect U.S.-allied Pacific coastal islands from possible Chinese aggression and, in his farewell address, warned against “the military-industrial complex,” still believed “that the president had broad powers to engage in covert warfare without specific congressional approval.” In fact, his successor, John F. Kennedy, exercised those powers in a major way in the Bay of Pigs incident. Richard Nixon unilaterally and secretly launched the invasion of Cambodia in 1970, and Ronald Reagan created a secret Central American foreign policy, while arranging the unauthorized transfer of funds and weaponry to the Nicaraguan rebels, the Contras, from the sale of U.S. arms to Iran, despite the fact that such funding was prohibited by an act of Congress, the Boland Amendment.

The Twenty-First Century

Even within the context of repeated presidential acts taken without congressional assent (or often even knowledge) and in defiance of the constitutional checks on the powers of the presidency, the twenty-first century witnessed a major uptick in claims of executive power. In the name of war, this century has seen an astonishing erosion of constraints on that very power, as Yale law professor Harold Hongju Koh details in his illuminating new book, The National Security Constitution in the Twenty-First Century.

At the dawn of this century, the attacks of September 11, 2001, led to an instant escalation of presidential power and executive unilateralism. In the name of national security, President George W. Bush issued an order that authorized the indefinite detention of prisoners in what quickly came to be known as the Global War on Terror. He also set up an offshore prison of injustice at Guantánamo Bay, Cuba, and authorized military commissions instead of federal court trials for terrorism suspects captured abroad.

Meanwhile, Congress and the courts consistently deferred to the will of the president when it came to actions taken in the name of that war on terror. One week after the attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF), which undermined its own power in Article I of the Constitution to declare war and weakened its powers of restraint on presidential actions carefully articulated in the 1973 War Powers Resolution (WPR), passed to guard against the very kind of secretive engagement in war that Nixon had unilaterally authorized in the Vietnam era.

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Now, turning their backs on the power given them by the Constitution and the WPR, Congress, with that AUMF, acceded to the expansion of presidential powers and opened the door to the disastrous wars in Afghanistan, Iraq, and elsewhere early in this century.  The president, it stated, was “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

In October 2001, Congress also passed the USA Patriot Act. It included an expansion of presidential power at home in the name of protecting the nation in the war on terror, including authorizing greatly expanded surveillance policies that would come to include, among other things, secret surveillance and searches that took place without evidence of wrongdoing, notably in Muslim communities in this country that were considered inherently suspect in the name of the war on terror.

As a result, when, in January 2009, Barack Obama entered the White House, his administration found itself with a strikingly expanded definition of the powers of the presidency on the table.

Obama’s Presidency

A former constitutional law professor, Barack Obama pledged to overturn some of the Bush administration’s most egregious, extralegal breaches, including the very existence of the Guantánamo Bay Detention Facility and the use of torture (or what the Bush administration had politely termed “enhanced interrogation techniques”) authorized by executive unilateralism as part of the war on terror. In what became known as “trust me” government, Obama also pledged to reform the excessive surveillance policies implemented in the war on terror. In 2013, David Cole, a civil rights attorney and currently the National Legal Director of the ACLU, credited Obama with making substantial “shifts” toward restraint by formally declaring an end to many of the Bush administration’s “most aggressive assertions of executive power.”

But while Obama did indeed trim some of the most striking excesses of the Bush era, his record of presidential reform fell significantly short. Jameel Jaffer, the founding director of the Knight First Amendment Institute, for instance, disputed Cole’s claims, citing the Obama administration’s continued reliance on illegal and extralegal policies that Bush’s aggressive actions had already put in play — among them, warrantless wiretapping, indefinite detention, and the military commissions to try prisoners at Guantánamo. In addition, as Jaffer pointed out, the Obama administration frequently relied on the powers granted the presidency in that 2001 AUMF to authorize targeted lethal drone strikes globally, as in the case of the drone-killing of U.S. citizen Anwar al-Awlaki, without further congressional authorization, by expanding the definition of “imminence” in order to appear to be complying with the international rule of law.

When it came to such targeted killings — a military tactic introduced under President Bush but greatly expanded during the Obama years for strikes in Pakistan, Somalia, and Yemen — the president reserved for himself the right to have the final say in authorizing such strikes. As the New York Times reported at the time, “Nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record. His actions have often remained inscrutable, obscured by awkward secrecy rules, polarized political commentary, and the president’s own deep reserve.” 

Although he served as legal adviser to the Department of State in the Obama administration, in his warnings about the perils posed by the slide towards unilateral presidential powers, Harold Hongju Kou concedes that the president could have done more to curtail the Bush era enhancement of the powers of the president. “[T]he cautious Obama administration,” he writes, “succeeded in swinging the national security pendulum only part of the way back” to restraint on executive power via the courts and Congress. While the “cascade of illegality” that defined the Bush era’s war on terror was indeed somewhat addressed by Obama, it remained, Koh reminds us, “undercorrected” — including not seeking “stronger accountability for past acts of CIA torture, and the stubborn continuation of a Guantanamo detention policy.”

While President Obama adhered more closely to restraints on presidential power than his predecessor, his administration did not make the kinds of structural and procedural changes necessary to deter future presidents from following in the footsteps of the Bush administration, as we were soon to learn, since, as Koh points out, enhanced unilateral presidential and executive powers would be “sharply re-intensified” under Donald Trump.

The Trump Years

Indeed, the first Trump presidency vastly accelerated the claims of expanded presidential power. Jack Goldsmith and Bob Bauer, lawyers who worked in the Bush and Obama administrations, respectively, served, as they put it, “very different presidents” and hold “different political outlooks.” Yet they agree that the Trump administration took unchecked presidential authority to a new level. In their 2020 book, After Trump: Reconstructing the Presidency, they contended that “Donald Trump operated the presidency in ways that reveal its vulnerability to dangerous excesses of authority and dangerous weaknesses in accountability.”

And as they make all too clear, the stakes were (and remain) high. “The often-feckless Trump,” they wrote, “also revealed deeper fissures in the structure of the presidency that, we worry, a future president might choose to exploit in a fashion similar to Trump — but much more skillfully, and to even greater effect.” And with the Supreme Court’s recent decision upholding the immunity of Donald Trump for acts taken while in the Oval Office, the shackles that once tied presidential acts in wartime to Congressional authorization are arguably now fully off the table, should a president be determined to act on his or her own say-so. (As Justice Sonia Sotomayor wrote in her dissent, the ruling “will have disastrous consequences for the presidency and for our democracy,” arguing that it will, in essence, “let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”)

The Biden Years

When it comes to recognizing limits on presidential powers, President Biden has had a distinctly mixed record. He immediately withdrew Trump’s executive order known as “the Muslim ban,” set out to close Guantánamo (but has not yet succeeded in doing so), rejoined the Paris climate accord, and revived international ties around the world that had been disrupted by Trump.  And yet, that quintessential institutionalist, who prided himself on his ability to work with Congress, nonetheless veered in the direction of presidential unilateralism in the conduct of foreign affairs.

As Professor Koh put it: “In foreign affairs, even the longtime senator Joe Biden — who widely proclaims his love of the Senate — now operates almost entirely by executive fiat,” including a reliance on “classified policy memoranda, with minimal congressional oversight.”  Overall, in fact, Biden issued more executive orders than any president since Richard Nixon. Though Biden wisely relied upon an interagency group of lawyers to advise him on national security decisions, following their advice, he issued “nonbinding political agreements, memoranda of understanding, joint communiques, and occasionally ‘executive agreements plus,’” just as Obama had done on the Paris climate accords and the Iran nuclear deal, relying on “preexisting legislative frameworks” rather than new Congressional authorizations. When it came to the war in Ukraine, Biden leaned heavily on “the coordinated use of sanctions, enhanced almost weekly post-invasion.” Most of those sanctions were set, as Koh also points out, “by executive orders and regulatory decrees,” rather than in consultation with Congress.

Our Future

A second Trump presidency will undoubtedly take unilateral presidential powers to a new level. After all, he already indicated that he might withdraw the U.S. from NATO and end support for Ukraine.  Nor is Trump likely to be deterred by Congress. Reporting on Project 2025, the Heritage Foundation’s nearly 1,000-page prescription for a second Trump presidency, written primarily by former office holders in the first Trump administration, New York Times reporters Jonathan Swan, Charlie Savage, and Maggie Haberman reported that Trump “and his associates” plan to “increase the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House.”

In particular, Project 2025’s stance on nuclear weapons is a reminder of just how dangerous a president who refused to be restrained by law or precedent will be. After all, in his first term in office, Trump unilaterally pulled out of the Iran nuclear deal and reimposed sanctions on that country, leading its leaders to increase its nuclear capacity. Meanwhile, the march toward nuclear confrontation has accelerated worldwide. In response, Project 2025 argues for ramping up America’s nuclear arsenal yet more.  “[T]he United States manifestly needs to modernize, adapt, and expand its nuclear arsenal,” the treatise declared,  in order to “deter Russia and China simultaneously,” adding that the U.S. needs to “develop a nuclear arsenal with the size, sophistication, and tailoring — including new capabilities at the theater level — to ensure that there is no circumstance in which America is exposed to serious nuclear coercion.”

Consider all of that a frightening vision of our now all-too-imminent future: a president freed from the restraints of the constitution, unchecked by Congress or the courts — or by his cabinet advisors. In the words of MSNBC’s Ali Velshi, Project 2025 has set the stage for Donald Trump to be the very opposite of what this country’s founders intended, “a king,” surrounded  not by “groups of qualified experts” but by “unblinking yes-men.”

(Dis)Trust in the Presidency

The growing power of the presidency has been taking place in plain view, as unilateral powers have accumulated decade after decade in the Oval Office, while the recent choice of president has also become a grim choice about the nature and powers of the presidency itself. Notably, the rise in executive powers has coincided with a creeping distrust of government in this country. Since the early 1960s, when nearly 80% of Americans said they trusted government “most of the time,” the public’s faith in this country’s federal government hovers at just over 20%, according to the Pew Research Center. And no wonder. When the office of the president refuses to accept the checks and balances that underlie the democratic system, the country’s trust in negotiated, reasonable, and restrained outcomes understandably falls away.

Sadly, in this era, the benefits of restoring the very notion of checks and balances that birthed the nation have come to seem ever more like a quaint dream.

Copyright 2024 Karen J. Greenberg

via Tomdispatch.com

Even today, more than two decades later, the question remains: Will the war on terror ever end?

Certainly, one might be inclined to answer in the affirmative following the recent unexpected endorsement of presidential candidate Kamala Harris by two leading members of the George W. Bush administration which, in response to those attacks, launched the GWOT. First, Bush’s vice president, Dick Cheney, who, after September 11th, sought to take the country down the path to what he called “the dark side” and was a chief instigator of the misguided and fraudulently justified invasion of Iraq in 2003, endorsed Vice President Harris. Then, so did Alberto Gonzales who, while serving as White House counsel to George W. Bush and then as his attorney general, was intricately involved in crafting that administration’s grim torture policy. (You remember, of course, those “enhanced interrogation techniques.”) He was similarly involved in creating the overreaching surveillance policy designed and implemented during the first years of the war on terror.

Consider those surprising endorsements by former Bush war hawks a possible coda for the war on terror as a major factor in American politics. In fact, for almost a decade and a half now, there have been signs suggesting that the denouement of that war might be at hand (though it never quite was). Those markers included the May 2011 lethal raid on the hideout of al-Qaeda leader Osama bin Laden; President Barack Obama’s December 2011 authorization for the “final” withdrawal of American troops from Iraq (though a cadre of 2,500 military personnel are stationed there presently and another 900 are in neighboring Syria). In August 2021, 10 years after the killing of bin Laden, the U.S. did finally exit, however disastrously, from its lost war in Afghanistan. And in 2022, a U.S. drone strike killed bin Laden’s successor, Ayman al-Zawahiri.

The counterterrorism measures have had an impact on the American threat environment. As reported in the Department of Homeland Security’s 2024 Homeland Threat Assessment, in 2022, “Only one attack in the United States was conducted by an individual inspired by a foreign terrorist organization” such as al-Qaeda or ISIS.

Terrorism Prosecutions

Notably, prosecutions of alleged international terrorists have declined precipitously since the Bush administration years (and some of the convictions then have been reversed or altered). In a 2009 report, the Justice Department stated that, “since September 11, 2001, the Department has charged 512 individuals with terrorism or terrorism-related crimes and convicted or obtained guilty pleas in 319 terrorism-related and anti-terrorism cases.” Soon after that, however, the decline began. TRAC, a database that monitors such cases, reported that, in October 2014, “[t]here were no prosecutions recorded that involved international terrorism.” By 2022, TRAC was reporting that the number of domestic terrorism prosecutions far outnumbered international terrorism cases, due in large part to the charges leveled against those involved in the January 6th insurrection. And that trend has only continued. This year, as TRAC indicated, “Overall, the data show that convictions of this type are down 28.6 percent from levels reported in 2019.”

And when it comes to terrorism prosecutions, something unthinkable not so long ago has now happened. Several judges have recently given early release or simply overturned cases involving individuals convicted and sentenced in jihadi-inspired terrorism cases during the first decade of the war on terror. In July 2024, Eastern District of Virginia Judge Leonie Brinkema threw out three of 10 charges against and overturned a conviction carrying a life sentence for Ali Al-Timimi, a U.S.-born computational biology scholar sentenced in 2004 for soliciting treason by inspiring his followers to commit acts of violence abroad to defend Islam. Judge Brinkema reversed her decision following a 2019 U.S. Supreme Court decision that found the term “crime of violence” to be “unconstitutionally vague.” Al-Timimi’s fate on the other counts is now on appeal. Having been released to home confinement after the onset of the Covid pandemic, he now no longer faces a life sentence, though, as the Associated Press reports, he could potentially see “decades of prison time beyond the 15 years he already served.”

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Nor was this Brinkema’s first reversal in a terrorism case. In 2018, she ordered the release of two prisoners convicted in what was known as the Virginia “Paintball Jihad” case following two Supreme Court rulings that held the charges in those cases to be similarly unconstitutionally vague.

And Judge Brinkema was not alone in reviewing and reversing post-9/11 terrorism convictions. This year, in two controversial cases, judges reassessed rulings they had once made, releasing from prison those they had sentenced in the war on terror years. Judge Colleen MacMahon granted “compassionate release” to James Cromitie, after six months earlier ordering the release of his three codefendants, commonly referred to collectively as the “Newburgh Four.” At sentencing, MacMahon had indicated her disagreement with the initial outcome of the case which led to 25-year sentences for the defendants convicted on charges that involved plotting to bomb synagogues and shoot down American planes with stinger missiles, describing their crime as that of “allegedly planting ‘bombs’ that were packed with inert explosives supplied by the FBI.” She further chastised the FBI in her compassionate release ruling, claiming, “Nothing about the crimes of conviction was of defendants’ own making. The FBI invented the conspiracy; identified the targets; manufactured the ordnance; federalized what would otherwise have been a state crime… and picked the day for the ‘mission.’”

Four years earlier, in late 2019, a federal judge in Lodi, California, overturned the conviction of Hamid Hayat, convicted in 2006 for attending a terrorist training camp in Pakistan and plotting an attack on this country, on the grounds that his counsel had ineffectively assisted him. Following that vacated conviction, the National Security Division at the Department of Justice reviewed the case and decided against filing new charges concluding “that the passage of time and the interests of justice counsel against resurrecting this 15-year-old case.” Having served 14 years of a 24-year sentence, Hayat was released.

The “passage of time” in these cases had led to a rethinking of the uses of justice and law after 9/11. Sadly enough, it has not resulted in sunsetting two of the major initiatives of the war on terror — the authorization for the initial military response to the 9/11 attacks that led to this country’s disastrous military engagements in Afghanistan and elsewhere, and the creation of the Guantánamo Bay Detention Facility.

The 2001 AUMF

One glaring element of the war on terror that has defied any sense of ending is the 2001 Authorization for the Use of Military Force, or AUMF, passed by Congress in the days just after 9/11, which initially greenlighted the invasion of Afghanistan. It’s still on the books.

Unlike prior authorizations for war, the 2001 authorization included no temporal limits, no geographical boundaries, and no named enemy. It was a classic blank check for launching attacks anywhere in the name of the war on terror and has indeed been used to justify attacks in dozens of countries throughout the Middle East and Africa, including against “unspecified organizations and individuals connected to international terrorism,” as a Council on Foreign Relations overview reports. As Georgetown professor Rosa Brooks has pointed out, the temporal open-endedness of that AUMF defied international law and norms in which “a state’s right to respond to an armed attack is clearly subject to some temporal limitations; it does not last indefinitely.” Or at least it shouldn’t.

Year after year, Congress has indeed considered sunsetting that 2001 AUMF, as well as the 2002 authorization for war in Iraq. After all, the landscape of international terrorism has changed vastly since the post-9/11 years. While the threat hasn’t disappeared, it has been transfigured. As the 2024 Annual Threat Assessment issued by the Office of the Director of National Intelligence points out, “While al-Qa’ida has reached an operational nadir in Afghanistan and Pakistan and ISIS has suffered cascading leadership losses in Iraq and Syria, regional affiliates will continue to expand.”

The war in Gaza has, of course, further changed the terrorism landscape. According to FBI Director Chris Wray, Hamas’s October 7th attack on Israel took the threat of foreign terrorism to “a whole ‘nother level.”

However, the 2001 authorization for the war on terror that remains in place is not an apt authorization for the new brand of terrorism or for the war in Gaza. It has so far made no difference that a 2022 National Security Strategy issued by the Biden White House pledged “to work with the Congress to replace outdated authorizations for the use of military force with a narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats.” To date, no such narrowed framework has come into existence. And while Congress has repeatedly tried to sunset that piece of legislation, largely under the leadership of California Democratic Congresswoman Barbara Lee (the sole member of Congress who insightfully opposed it in 2001 on the grounds of its expansive overreach), such efforts have failed year after year after year. With Lee’s departure from office this coming January, the possibility of such a sunset will lose its most ardent proponent.

The Forever Prison

By far the most egregious relic of the war on terror is undoubtedly that forever war’s forever prison at Guantánamo Bay, Cuba. True, the number of detainees still held there — 30 — is down dramatically from the “roughly 780 detainees” in 2002. And 16 of those detainees have now been cleared for release (a review board having determined that they no longer pose a threat to the United States), while three remain in indefinite detention, and 11 others are in the military commissions system either facing charges or convicted. And true, President Biden’s administration has made some progress in those commissions, arranging plea deals to resolve the cases of those who have been charged, as in that of two detainees who had been tortured and who pleaded guilty to charges related to terrorist bombings in Bali, Indonesia.

But whatever progress has been made during this administration, there have been two major setbacks.

First, early in the fall of 2023, the Biden administration reportedly arranged for the transfer of 11 Yemeni detainees to Oman. As the New York Times‘s Carol Rosenberg reported, thanks to Hamas’s October 7th attack on Israel, “A military cargo plane was already on the runway at Guantánamo Bay ready to airlift the group of Yemeni prisoners to Oman when the trip was called off.” Had that transfer occurred, the prison population would have dwindled to 19. But worries about a newly unstable Middle East left members of Congress uneasy and, according to Rosenberg, they expressed their concerns to the State Department and so succeeded in halting the transfer.

In July, however, a momentous forward step did take place. Brigadier General Susan Escallier, the Pentagon’s Convening Authority for Guantánamo, the person in charge of the military commissions there, finally authorized a plea deal that had been in the works for years. It involved three of five defendants in that prison’s signature case, the prosecution of those accused of conspiring in and abetting the 9/11 attacks, including their alleged mastermind Khalid Sheikh Mohammed. The grim years of torture of those five codefendants at CIA “black sites” around the globe had long made it impossible to bring the case to court.

However, a deal was finally reached. As Chief Prosecutor Rear Admiral Aaron Rugh explained, “In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet.” Other parts of the agreement remain secret, but it still seemed like a huge step forward had been taken in bringing justice to the perpetrators of the 9/11 attacks. After endless pretrial hearings, filings, and motions — and no trial — there seemed at least to be a glimmer of light at the end of the tunnel. In the words of Senator Dick Durbin (D-IL), the plea deal “was the best path forward to finality and justice.”

Unfortunately, only two days after the announced deal, Secretary of Defense Lloyd Austin mysteriously revoked it, issuing a two-page memorandum that managed to provide no explanation whatsoever for his decision.

Twenty-three years later, there is arguably no greater reminder of both the need to put the war on terror behind us and an all-American inability to do so than the continued existence of Guantánamo. There, at an estimated expense of more than $13 million per prisoner per year, judges and lawyers, many of whom favor plea deals, continue to play their roles as if a trial in the 9/11 case will ever be possible; as if the passage of time without resolution is an acceptable solution; and as if the example of indefinite detention, the use of torture, and a system that can’t adjudicate justice doesn’t continue to undermine the American promise of justice for all.

Moving Forward?

If only, in acting to restore a balance between punishment and the law, even when it comes to post-9/11 terrorism cases, Judges MacMahon and Brinkema had set an example for others. Certainly, at this truly late date, President Biden and Secretary of Defense Austin should have accepted — and should now reconsider and accept — the plea deal for those 9/11 co-defendants as a way of helping this country finally move past the 9/11 era and those endless, disastrous wars on terror. Isn’t it time to free the country up to focus on truly pressing national concerns instead of letting the aberrations of the past continue to haunt the present moment? Along these lines, perhaps it’s also the moment for Congress to sunset the 9/11 authorization for open-ended all-American global warfare.

Isn’t it truly time to move on from the war on terror’s lingering and painful legacy?

Copyright 2024 Karen Greenberg

Tomdispatch.com

As the pundits weighed in on Joe Biden’s abysmal performance at that June 27th debate with Donald Trump and cast doubt on his prospects for reelection, “learned helplessness“ was used over and over again in the days leading up to his withdrawal from the presidential race in favor of Vice President Kamala Harris. Two days after the debate, for instance, The Economist, focusing on Biden’s refusal to declare himself a non-candidate for the presidency, concluded that “many [Democrats] have fallen into learned helplessness,” as evidenced by the gap between their private doubts and their public assertions.

Writing for the San Francisco-based progressive daily, 48hills, Bruce Mirkin chastised the Democrats for choosing hopelessness over hope. “Instead of ‘yes, we can,’” he wrote, “the instinctive response from a good portion of the folks who should be helping to defend democracy seems to be ‘no, we can’t.’” He then labeled the party’s inaction “learned helplessness.” Jordan Zakarin, writing for the Center for American Progress Action’s Progress Report, extended that diagnosis from “the worst debate performance in modern history” to the larger moment in Washington. He pointed, for instance, to Attorney General Merrick Garland having “slow-walked prosecuting Donald Trump.” “It is,” he concluded, “a learned helplessness,” a “preemptive surrender.”

The question is: What should we make of the concept of “learned helplessness”? Where did it come from and what are the remedies writ large? In this distinctly disturbing moment in our history, is it possible that an all-American version of despair and hopelessness has changed in light of Joe Biden’s backing out of the presidential race?

The Psychological Concept

To better understand the sudden shower of references to “learned helplessness,” a little history is in order. In the late 1960s, psychologist Martin Seligman coined the term while conducting experiments with dogs. He had accidentally stumbled on the fact that dogs that experienced electrical shocks without having any control over starting or stopping them were ultimately rendered strangely passive. They proved unwilling to move, even to escape further mistreatment.

After more experiments demonstrated that being subjected to severe pain or stress did indeed induce a state of inaction in dogs, Seligman then turned to humans and discovered that individuals who had suffered an act or acts of trauma and abuse continued, well after the painful incident, to show signs of depression and anxiety that rendered them completely unable to act. They continued to exist, he discovered, in a state of profound resignation and inaction, long after the traumatic moment in which they found themselves powerless. Afterward, they were convinced that nothing was under their control, that any action they might take would be futile, and that failure was inevitable, should they even try to act. (Later studies suggested that some elderly individuals might also experience such a state of profound resignation and inaction in response to “stressful life events,” at times in association with dementia.)

But here’s the truly strange thing: more than three decades later in the years after the 9/11 attacks, Seligman’s concept of “learned helplessness” would be quite purposely baked into the interrogation and torture program created and implemented for war on terror detainees by American officials during the administration of President George W. Bush. As the executive summary of the Senate Select Committee on Intelligence’s torture report explained, one of the two psychologists contracted by the Central Intelligence Agency (CIA) for the purpose of devising its interrogation program “had reviewed research on ‘learned helplessness,’ in which individuals might become passive and depressed in response to adverse or uncontrollable events. He theorized,” the report added, “that inducing such a state could encourage a detainee to cooperate and provide information.”

That psychologist, Bruce Mitchell, even met with Seligman while designing techniques to use on war-on-terror detainees suspected of ties to the 9/11 terror group al-Qaeda and its leadership at the secret “black sites” the CIA set up globally. (Seligman, it seems, had no idea of the horrors Mitchell and his associates were planning.) Ironically enough, Seligman’s findings and his concept of “learned helplessness” would indeed become a basic part of the development of the CIA’s torture program. (Seligman would come to condemn the use of the concept for interrogations at those black sites. As The Washington Post reported, “When [Seligman] later learned through media accounts how it was employed — for enhanced interrogation — he issued a statement: ‘I am grieved and horrified that good science, which has helped so many people overcome depression, may have been used for such bad purposes.’”)

To induce a profound state of helplessness, those post-9/11 captives were sent to the CIA’s black sites where they were subjected to “enhanced interrogation techniques” designed to elicit information from them. Their torture included beatings, being smashed into walls, being hung by their limbs in excruciatingly painful positions, forced nudity, sodomy, and repeated sleep deprivation, among other things. The CIA also used waterboarding (subjecting detainees to the feeling of drowning), placed them in coffin-like boxes, and threatened to use a gun or a power drill on those who refused to give answers sought by their interrogators. Just last month, in a pre-trial hearing at the forever prison the Bush administration set up offshore — and away from the federal court system — at Guantánamo Bay, Cuba, in 2002, such techniques were once again described in detail, this time by John Bruce Jessen, the psychologist who, along with Mitchell, designed the nightmarish interrogation program. In addition to his testimony, he also demonstrated the technique of “walling,” which involved slamming a detainee’s head against a wall.

The goal was simple: to reduce that prisoner to a profound state of complete paralysis and disempowerment in which, having no hope of relief or escape, he would do whatever his captors wanted. Detainees would see that there was no way out but to answer their captors’ questions, which, it turned out, often led them, in desperation and a state of learned helplessness, to confess to things they hadn’t done, to confess to whatever their captors wanted to hear.

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Having studied and written about the nightmare of those prisoners and Guantánamo for so many years now, it’s been supremely jarring to see the term “learned helplessness” re-emerge in connection to the current unnerving state of American politics and the 2024 presidential election. Yet, in many ways, it seems a strangely appropriate lens through which to view the world of Donald Trump and the rest of us. It was true, as many commented, that a sense of learned helplessness indisputably crept into the mindset of so many of us in this country — at least prior to Joe Biden’s decision not to pursue a second term as president.

The American people have indeed suffered multiple stressful, even traumatic experiences in recent years. The shock of a government that didn’t protect them on September 11, 2001; the devastating experience of a president who refused to protect them from Covid, as bodies piled up on the streets of this country; the winnowing away of rights and liberties once protected by the Constitution and the Supreme Court — from the overturning of Roe v. Wade to a rash of recent decisions, including one that gave a president essential immunity in relation to more or less anything he did, no matter how devastating; the inability of the courts to proceed in their prosecutions of Donald Trump; the nearly paralyzed state of a riven Congress amid an economic reality that has led so many younger Americans to be unable to purchase their own homes or send their children to college — all have collectively cowed the population. Even before both the Supreme Court’s presidential immunity decision and the dismal debate performance of Biden, a sense of learned helplessness seemed well in place, and understandably so.

The Republican Party has also succumbed to a state of learned helplessness. One after another, former opponents of Trump and the MAGA ideology he stands for have succumbed to his agenda and given up on pursuing their own independent goals. Republican vice-presidential nominee J.D. Vance is certainly a case in point. Having formerly called out Trump for his lack of morality, his xenophobia, and his racism, as well as for being a “total fraud” and “America’s Hitler,” he is now on board with the ideas he once said he deplored, including, for example, an untethered anti-immigration stance that calls for massive deportations of illegal immigrants. Similarly, Trump’s Republican election opponent Nikki Haley has given up her “legacy of blunt assessments and brutal takedowns” of the former president, as The Nation’s John Nichols has aptly described her opposition to Trump, whom she once described as “a dangerous stooge of Russian president Vladimir Putin.”

The question is: What, if anything, does the research tell us about curing such a state?

Is There, in Fact, a Cure?

Psychologists do point to remedies for such a profound state of hopelessness. They suggest several healing paths forward, including therapy to examine the causes of one’s despair and to discover constructive paths beyond it; exercise to stimulate the body and the mind; and a commitment to “learned optimism,” a pattern of reaction geared to expecting the best rather than the worst out of any situation. As Psychology Today points out, “Seligman later developed the concept of learned optimism. By explaining events to ourselves in a constructive manner and developing a positive internal dialogue, people can break free from their cycle of helplessness.” Small wins and an energized commitment to positivity are basic tenets of finding a way to “learned optimism.”

If a turn towards optimism offers a way out of the helplessness of our times, perhaps we are seeing the beginning of just such an event. Recently, Slate‘s Dahlia Lithwick, again invoking the term “learned helplessness,” suggested that reports of the plans of the Biden administration to back Supreme Court reform were a sign of the kind of future “systemwide cognitive reboot for American voters that seems almost inconceivable in the generalized torpor and despair of July 2024.” The headline of her article read, appropriately enough, “Are We Finally Letting Go of Our Learned-Helplessness Syndrome Around the Supreme Court?”

So, too, the outpouring of energy and excitement following Biden’s decision to bow out of the presidential race and the enthusiasm for newer, younger Democratic Party leadership — and for Vice President Kamala Harris, in particular — already seems eons removed from the head-shaking resignation of Democratic voters confronting a “choice” between an aging Joe Biden and You Know Who on election day. In fact, in many ways, that new turn of affairs could be just what the doctor ordered, though, of course, a possible November election victory for Donald Trump could still put the phrase “learned helplessness” in a grimly new light.

For Democrats, the idea that there could be a brighter future, one in which a sense of control replaced one of powerlessness — an election in which their presidential candidate has a viable chance of winning — has taken hold. In place of anxiety and depression, there is optimism, or at least a “cautious hope.” Declaring her “immense pride and limitless optimism for our country’s future,” Nancy Pelosi echoed the importance of this newfound optimism when endorsing Kamala Harris as the party’s candidate for 2024. As Tim Alberta summed it up in The Atlantic, “As far back as springtime, the numbers told a straightforward story: Biden was not going to win. Democrats could only look on, powerless.” However, now, he concludes, it is the Republicans who are feeling hope and control fade away: “Sunday brought an unfamiliar feeling of powerlessness. For the first time in a long time, Trump does not control the narrative of 2024.”

Whether or not such optimism gains momentum in the potentially tumultuous days ahead remains to be seen, as does whether the Republicans can find a way out of their own potential sense of learned helplessness in the face of a changing scenario. Whatever happens, given what I know about the past use of that phrase and the nightmare of the war on terror’s use of torture, my own hope is that, with election 2024, the very concept of learned helplessness and the realities it represents, whether it applies to torture at the hands of the U.S. government or suffering at the hands of Trumpian politics, can finally be politically laid to rest.

Call it learned optimism, if you wish, but fingers crossed.

Copyright 2024 Karen Greenberg

Tomdispatch.com

Mind you, I’ve been covering Guantánamo since President George W. Bush and his team, having responded to the 9/11 attacks by launching their disastrous “Global War on Terror,” set up that offshore prison to house people American forces had captured. Previewing Diaz’s movie, I was surprised at how it unnerved me. After so many years of exposure to the grim realities of that prison, somehow his film touched me anew. There were moments that made me sob, moments when I turned down the sound so as not to hear more anguished cries of pain from detainees being tortured, and moments that made me curious about the identities of the people in the film. Although the names of certain officials are mentioned, the central characters are the detainees and individual interrogators, as well as defense attorneys and guards, all of whom interacted at Guantánamo’s prison camp over the course of its two-plus decades of existence.

While viewing it, I was reminded of a question that Tom Engelhardt, founder and editor of TomDispatch, has frequently asked me: “What is it about Guantánamo that’s so captivated you over the years?” Why is it, he wanted to know, that year after year, as its story of injustice unfolded in a never-ending cycle of trials that failed to start, prisoners cleared for release but still held in captivity, and successive administrations whose officials simply shrugged in defeat when it came to closing the nightmarish institution, it continues to haunt me so? “Would you be willing,” he asked, “to reflect on that for TomDispatch?” As it turned out, the death of my dad somehow helped me grasp a way to answer that question with previously unattainable clarity.

The Missing Outrage

As a start, in response to his question, let me say that, despite my own continued immersion in news about the prison camp, I’m struck that, in the American mainstream, there hasn’t been more headline-making outrage over the never-ending reality of what came to be known as Gitmo. From the moment it began in January 2002 and a photo appeared of shackled men bent over in the dirt beside the open-air cages that would hold them, wearing distinctive orange jumpsuits, its horrid destiny should have been apparent. The Pentagon Public Affairs Office published that immediately iconic image with the hope, according to spokesperson Torie Clarke, that it would “allay some of our critics” (who were already accusing the U.S. of operating outside of the Geneva Conventions).

Rather than allay them, it caught the path of cruelty and lawlessness on which the United States would continue for so many endless years. In April 2004, the world would see images of prisoners in American custody at Abu Ghraib prison in Iraq, naked, hooded, cuffed, sexually humiliated, and abused. Later reports would reveal the existence of what came to be known as “black sites,” operated by the CIA, in countries around the world, where detainees were tortured using what officials of the Bush administration called “enhanced interrogation techniques.”

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For 22 years now, through four different administrations, that prison camp in Cuba, distinctly offshore of any conception of American justice, has held individuals captured in the war on terror in a way that defies any imaginable principles of due process, human rights, or the rule of law. Of the nearly 780 prisoners kept there, only 18 were ever actually charged with a crime and of the eight military court convictions, four were overturned while two remain on appeal.

A large number of those captured were originally sold to the Americans for bounty or simply picked up randomly in places in countries like Afghanistan known to be inhabited by terrorists and so assumed, with little or no hard evidence, to be terrorists themselves. They were then, of course, denied access to lawyers. And as I was reminded recently on a trip to England where I met with a couple of released detainees, those who survived Gitmo still suffer, physically and psychologically, from their treatment at American hands. Nor have they found justice or any remedy for the lasting harms caused by their captivity. And while the post-9/11 war on terror moment has largely faded into the past (though the American military is still fighting it in distant lands), that prison camp has yet to be shut down. 

A Generation Comes of Age

A second and more timely answer right now to Tom Engelhardt’s question is that my unwavering revulsion to the existence of Guantánamo has stemmed from a worldview that distinctly marked my father and many in his generation — men and women who came of age in the 1940s and early 1950s, whose first moments of adulthood coincided with the postwar emergence of the United States as a global superpower that touted itself as a guardian of civil rights, human rights, and justice. The opposition to fascism in World War II, the support for international covenants protecting civilians, a growing commitment at home to civil liberties and civil rights – those were their ideological guideposts. And despite the contradictions, the hypocrisy, and the failure that lurked just behind the foundational tenets of that belief system, many like my father continued to have faith in the honorable destiny of the United States whose institutions were robust and its motives honorable.

To be sure, there was deep denial involved in his generation’s sugar-coated version of the American experience. The revelation of the Phoenix Program in Vietnam; decisions to overthrow elected governments in Guatemala, Iran, and elsewhere; the profound and systemic domestic racism of the country as described in Michelle Alexander’s The New Jim Crow; even the dirty dealings of the Nixon White House during Watergate; and, in this century, the official lying that set the stage for the disastrous Iraq War all should have dampened their rose-colored assessment of American democracy. Still, in so many ways he and many of his compatriots held fast to their belief in the power of this country to eternally return to its best self.

True to his belief in the American dream, my father took me to see movies and plays at our local college that amplified a worldview that he, like so many of his generation, embodied. I was often the youngest attendee at those films with stars like Spencer Tracy in Inherit the Wind, an ode to free speech; Gregory Peck in To Kill a Mockingbird, with its portrayal of the evils of racism; and Henry Fonda in Twelve Angry Men, whose message doubled down on the tenet that the accused are always innocent until proven guilty. And let’s not forget Judgement at Nuremberg, the dramatization of the post-World War Two war crimes tribunals, led by U.S. Supreme Court Justice Robert Jackson, a series of trials in which Nazi leaders were convicted of committing genocide.

Those films, crying out for fairness, equality, and an end to racism, gave voice to champions of democracy, and energy to my father’s generation’s firm embrace of American possibilities.

Memory and Forgetting

A third answer, also underscored by my recent personal encounter with life’s fleetingness, is my growing fear, as an historian, that Guantánamo will simply be forgotten. In a sense, in the world of Donald Trump, collapsing bridges, and blazing wars in distant lands, it already seems largely forgotten. Although 22 years later it’s still home to 30 detainees from the war on terror, Guantánamo attracts little attention these days. If it weren’t for the invaluable work of Carol Rosenberg at the New York Times, who has reported on Gitmo since Day One in January 2002, as well as a handful of other dedicated reporters including John Ryan at Lawdragon, few could know anything about what’s going on there now. As sociology professor Lisa Hajjar points out, “Media coverage at Guantánamo has become a rarity.” While the press pool for the hearings of the military commissions that are still ongoing there averaged about 30 reporters until perhaps 2013, it’s now been whittled down to, at most, “about four per trip,” according to Hajjar.

Gitmo media coverage (and so public attention) has essentially disappeared — hardly a surprise given the current globally crushing issues of war and deprivation, injustice and extralegal policies, not to speak of the mad discomfort of election 2024 here in America. Guantánamo, whose last inmate arrived in 2008 and whose viable path to closure has remained blocked year after year (no matter that three presidents — George W. Bush, Barack Obama, and Joe Biden — each declared his desire to shut it down), persists, its deviations from the law unresolved.

As it happens, flagging interest in Guantánamo has coincided with an eerie larger cultural phenomenon — a turn away from history and memory.

In the world of social media and the immediate moment, a malady of forgetfulness about past events should be a cause of concern. In fact, Mother Jones Washington bureau chief David Corn recently published a striking piece on the phenomena. Citing an Atlantic article by psychiatrists George Makari and Richard Friedman, Corn noted that, while forgetting can help people get on with their lives after a traumatic experience, it can also prevent trauma survivors from learning the lessons of the past. Rather than confront the impact of what’s occurred, it’s become all too common to simply brush it all under the rug, which, of course, has its own grim consequences. “As clinical psychiatrists,” they write, “we see the effects of such emotional turmoil every day, and we know that when it’s not properly processed, it can result in a general sense of unhappiness and anger — exactly the negative emotional state that might lead a nation to misperceive its fortunes.”  In other words, events like the 9/11 attacks and what followed from them, the Covid pandemic, or even the events of January 6, 2021, as Corn’s psychiatrists point out, can bring such pain that forgetting becomes “useful,” even at times seemingly “healthful.”

Not surprisingly, an increasing forgetfulness about traumatic events is echoed on an even broader scale in a contemporary trend toward the abandonment of history, presumably in favor of the present and its megaphone, the social media universe. As historian Daniel Bessner has pointed out, this country is now undergoing a profound reconsideration of the very purpose and importance of the historical record. Across the country, universities are reducing the size of their history faculties, while the number of undergraduates majoring in history and related fields in 2018-2019 had already declined by more than a third since 2012.  

No wonder Guantánamo has been relegated to the past, a distant chapter in the ever-diminishing war on terror and no matter that it continues to function in the present moment. For example, two death penalty cases are currently in pretrial hearings there. One involves the October 2000 bombing of the USS Cole, a Navy destroyer, which resulted in the deaths of 17 American sailors. As the intrepid Carol Rosenberg points out, the case has been in pretrial hearings since 2011. The other involves four defendants accused of conspiring in the attacks of September 11th. A fifth defendant, Ramzi bin al Shibh, was recently removed from the case, having been found incompetent to stand trial due to the post-traumatic stress disorder that resulted from his torture at American hands. As for the remaining defendants, originally charged in 2008 and then again in 2011, no trial date has yet been set. The ever-elusive timetable for those prosecutions tells you everything. Evidence tainted by torture has made such a trial impossible.

The Cycles of American History

It’s hard to fathom how my father’s generation, stubbornly rose-colored in their vision of the country, swallowed the blatant failures of the post-9/11 years. My sense is that many of them, like my dad, just shook their heads, certain that the true spirit of American democracy would ultimately prevail and the wrongs of indefinite detention, torture, and judicial incapacity would be righted. Still, as the country spiraled into January 6th and its aftermath, the reality of America’s lost grip on its own promises of justice, morality, lawfulness, and accountability actually began to sink in. At least it did with my dad, who expressed clear and present fears of a country succumbing to the specter of his childhood, fascism, the very antithesis of the America he aspired to.

Philippe Diaz’s film about Gitmo (which I encourage readers to catch when it premieres at the end of April) should remind at least a few of us of the importance of living up to the image of the country my father and others in his generation embraced. Isn’t it finally time to highlight the grave mistake of Guantánamo? Isn’t it finally time to close that shameful prison, distinctly offshore of American justice, and reckon with its wrongs, rather than letting it disappear into the haze of forgotten history, its momentous violations unresolved. 

In 2005, in his confirmation hearings for attorney general, George W. Bush’s longtime legal counsel Alberto Gonzales maintained that the ideals and laws codified in the Geneva Conventions were “quaint and obsolete.” That phrase, consigning notions of justice and accountability to the dustbin of history, encapsulated this country’s post-9/11 strategy of evading the law in the name of “security.” And as long as Guantánamo remains open, that strategy remains in place.

Wouldn’t it be nice if, rather than letting Gonzalez etch in stone an epitaph for the ideals my father and his generation so revered, we could find hope in a future where their trust in the rule of law and in a government of responsible citizens who put country above personal fortune, law above fear, and peace above war might prevail? As we lay my dad’s generation to rest, shouldn’t we take some consolation in the possibility that their spirit may still help us find our way out of today’s distinctly disturbing and unnerving times?

Copyright 2024 Karen J. Greenberg

Via Tomdispatch.com

Sadly enough, justice delayed (and possibly denied) is once again front and center in America as we face the specter of Donald Trump and his insistence on eternally evading the reach of the law. What’s at stake isn’t just the fate of the former president, but an essential aspect of democracy.

The Georgia Case

Recently, the country was privy to attempts by Donald Trump’s lawyers to delay, if not completely derail, legal proceedings in a Georgia courtroom where Trump faces 13 felony counts for, in essence, trying to steal an election. In a hearing linked to that Georgia election interference case, originally scheduled to begin in August, a team of Trump defense attorneys attempted to remove prosecuting District Attorney Fani Willis from the case. The defense team has argued that Willis was not only having an affair with a man she had appointed as lead prosecutor in that case but had gained financially from doing so.

Should the judge indeed order her removed, the trial could be delayed until well past the November presidential election and might never take place at all. A new prosecutor could decide not to bring charges against Trump and his 14 co-defendants, and even finding one could prove painfully difficult, given the size, complexity, and cost of the case. According to NBC News politics reporter Dareh Gregorian, it would be a “massive undertaking.” Not to mention that selecting a new prosecutor could spark all sorts of internal politics in the Georgia justice system. The “delay,” in other words, could well amount to an utter defeat. Originally scheduled to be decided before the 2024 presidential election, the trial would, at best, be postponed into the distant future and might never take place.

And that’s not the only case in which Trump’s team is deploying a strategy of delay in the service of strangling future legal proceedings.

The Jack Smith Federal Cases

Special Counsel Jack Smith — appointed by Attorney General Merrick Garland in November 2022 after more than a year of persistent calls for an investigation into the January 6th insurrection — has mounted two federal criminal cases against Trump. One involves classified documents he took back to his Mar-a-Lago estate and refused to return. It’s now before a Florida federal court (and a Trump-appointed judge). The other is the January 6th election interference case taking place in Washington, D.C. Both have repeatedly succumbed to “assorted motions and maneuvers” of delay, as Mother Jones columnist David Corn aptly puts it.

In truth, delay has been front and center in each case. Only recently, Trump’s lawyers petitioned the Supreme Court to put Smith’s potentially devastating election interference case on hold while the former president appealed a lower court ruling that he doesn’t have presidential immunity from federal prosecution. He has now filed an appeal with the Supreme Court, asking the justices to determine whether or not he indeed does have immunity. This comes after the D.C. appellate court took over a month to issue its decision, just one more way in which timeliness has been left in the lurch at a moment when time should be of the essence.

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In a second delaying maneuver in that case, the former president’s lawyers have asked the Supreme Court to pause proceedings until the trial of another January 6th defendant — subject to similar charges — concludes. Originally scheduled to begin on March 4th, the case has already been successfully stalled, though it could still, at least theoretically, begin in July, overlapping with the Republican National Convention or even during the fall election period itself.

In a similar fashion, Trump’s legal team has sought to push off Smith’s second case, the one involving those boxes of classified documents, some of which Trump so tellingly piled up in his Mar-a-Lago bathroom and shower. That case involves a 37-count indictment, including charges of willfully retaining national security documents, withholding and mishandling classified documents, and the purposeful obstruction of justice. Repeatedly, Trump’s lawyers have asked for delays in the case, including a request that Judge Aileen Cannon postpone the trial until after the November election. That Trump-appointed judge has indeed agreed to some delays but so far has kept the trial’s starting date at May 20th. In frustration at the slow pace of that case, Smith has called the Trump team’s persistent attempts at delay “relentless and misleading.” According to New York Times reporters Alan Feuer and Maggie Haberman, the trial date “will almost certainly be delayed” — the only question is how long the delay will be.

The New York State Case

As in the Georgia case, the fourth criminal indictment against the former president is taking place in state court. Manhattan District Attorney Alvin Bragg has indicted him in what’s commonly known as “the hush-money case.” What’s at stake, however, is not only the silencing of porn star Stormy Daniels with whom Trump had an affair just before the 2016 election. The indictment accuses him of “falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.” As Bragg explained to WNYC’s Brian Lehrer, “The core is not money for sex. We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up. That’s the heart of the case as we’ve laid out in court filings.”

Here, too, Trump sought a delay, alleging that showing up in court for the trial, as required by law, would interfere with his campaign for president. His appeals were, however, denied by the judge overseeing the case, which may indeed mean that it will be the first criminal case against him to actually take place. It’s now scheduled for March 25th in Manhattan.

Undermining Democracy

Delay matters when it comes to the 2024 election. As has become ever clearer, potential peril of a remarkable sort may lie ahead for our democracy, given Trump’s warnings about his plans, if reelected, to dismantle the civil service, pull out of NATO, deploy federal troops domestically, and gut the Department of Justice, as well, undoubtedly, as trying to pardon himself in the federal cases against him. And that’s just to begin down a list of the possible dangers.

But part of what’s now at stake, even without such an election outcome, is the viability and legitimacy of the judicial system itself. While the question of whether a president is above the law hovers over political discourse these days, there should be another major concern here — namely, the perception that our courts may not be up to the tasks assigned to them. Nowhere has this test been more strained than when it comes to the issue of timely justice, the right, that is, to a fair and speedy trial.

The notion of a timely trial, after all, has been part of the fabric of American justice since the founding of the legal system. The Sixth Amendment very specifically calls for the ensuring of “a speedy and public trial.” Later statutes passed by Congress — notably the 1974 Speedy Trial Act — offered additional support for the idea that justice must be dealt out in a timely fashion. Under that act, the disposition of a case is supposed to occur within 70 days, although numerous exceptions are allowed for extending that timeframe in the name of fair and just proceedings, among them the many pre-trial motions we’re now seeing in the Trump cases.

Guantánamo

It’s worth noting that the potential failure of the courts to operate in a timely fashion is anything but new to this Trump-era moment. Notably, in the major national security case of the twenty-first century, the courts failed dismally. Imagine this: more than 22 years after the nightmarish 9/11 attacks, this country has been unable to try the individuals, long in custody, who are accused of being co-conspirators in those attacks that killed thousands of Americans and took down the Twin Towers in New York, while devastating the Pentagon in Washington.

The 9/11 case has, in fact, been in a pretrial phase for nearly two decades now. In 2008, prosecutors for the military commissions set up at Guantánamo, Cuba, produced an initial indictment in the case. In 2009, Eric Holder, President Barack Obama’s attorney general, moved to transfer the case from the military commissions to federal court in Manhattan, a place where numerous international terrorism cases had been tried from the 1990s on. At the time, Holder’s Department of Justice issued a federal sealed indictment against the five 9/11 defendants.

Holder’s explanation spoke directly to the connection between timeliness and justice. He already rued the five years that had passed since those men were brought to Guantánamo. “I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The victims’ loved ones deserve the opportunity to see the alleged plotters of those attacks held accountable in court, an opportunity that has been too long delayed.”

Before the federal courts even had a chance to take up the case, however, public reaction ensured further obstacles to a federal trial. New York officials, family members of the victims, and congressional representatives insisted that security concerns made Holder’s proposal too dangerous. The pushback took the form of fears of violence on the streets of New York, along with anger that American rights and laws would be extended to terrorists. New York Mayor Mike Bloomberg and eventually Senator Chuck Schumer withdrew their support for Holder’s plan.

Sent back to Guantanamo in 2011, the 9/11 trial still has no set date. And because the defendants were tortured while in CIA custody — subjected to sleep deprivation, long periods of solitary confinement, waterboarding, and beatings — defense attorneys have persistently argued that the confessions of any of the defendants or tortured witnesses are invalid. In 2024, it’s hard to imagine the actual trial ever starting, though pre-trial hearings go on year after year after year.

Prior to the pandemic, jury selection for the trial was scheduled to begin in January 2021. Three years later, no trial date has yet been set and it may never be. Currently, the judge in the case has been asked to rule on an argument by one of the 9/11 case defense attorneys that, due to “outrageous government conduct” — that is, the torture of his client at a CIA “black site” — the case should be dismissed.

To make matters worse, after so many years, judges, prosecutors, and defense attorneys attached to the trial continue to resign or retire, including the presiding judge and, last month, one of the longest-serving prosecutors, both in the wake of the resignations of others in recent years, including a lead defense attorney and the chief prosecutor in the case.

What’s at Stake

While the military commissions, the federal courts, and the state courts each have different expectations of speed, they do share the mandate of upholding a fundamental element of democracy. In adjudicating guilt and punishment according to the laws of the land, they promise victims the right to a resolution and remedy and defendants the right to a fair trial. In a larger sense, they promise society security and safety, premised on the expectation that those who have broken the law will be punished in a timely fashion and serve as a deterrent to others who might seek to do the same.

In an address to the American Bar Association in August 1970, then-Supreme Court Chief Justice Warren Burger waxed eloquent about the foreseeable and devastating fallout that would follow a loss of trust in the courts. In his words, “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.”

According to the former chief justice, delay was one of three things that “could destroy that confidence and do incalculable damage to society.” He concluded that “the delays in trials are often one of the gravest threats to individual rights. Both the accused and the public are entitled to a prompt trial.”

Unfortunately, so many years later, Donald Trump and his lawyers seem hard at work proving that the institutionalization of delay and the damage to the legitimacy of the court system that goes with it wasn’t restricted to those 9/11 cases. Quite the opposite, we now find ourselves in an era when the institutions designed to keep the United States a functioning democracy, including those courts, are at risk.

The 118th Congress is currently on course to be “one of the least productive in U.S. history.” In the name of partisanship, it has opted for stasis over passing bills. And thanks to this Congress — and the encroaching influence of Donald Trump –the executive branch is under duress as well. Witness the ludicrous congressional impeachment drives now underway against both President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. So, too, the Supreme Court may be getting its lowest approval ratings ever, having reversed important rulings like Roe v. Wade and the Voting Rights Act.

Rather than rising to the moment, our courts seem to be succumbing to the uncertainty of it all, delaying justice again and again rather than demonstrating the power of our judicial system to operate responsibly. In the current context, should such failure continue, justice delayed could all too easily become democracy denied.

Copyright 2024 Karen Greenberg

Via Tomdispatch.com

But Guantánamo, a prison that, from its founding, has violated U.S. codes of due process, fair treatment, and the promise of justice writ large isn’t the only unnerving legacy of the “war” on terror that still persists. If indefinite detention at Guantánamo was a key pillar of that war, defying longstanding American laws and norms, it was just one of the steps beyond those norms that still persist today.

In the days, weeks, and even years following the attacks of September 11th, the U.S. government took action to create new powers in the name of keeping the nation safe. Two of them, more than two decades after those attacks, are now rife with calls for change. Congress created the first just a week after 9/11 (with but a single no vote). It authorized unchecked and unending presidentially driven war powers that could be used without specified geographical limits — and, strangely enough, that power still remains in place, despite recent congressional efforts to curtail its authority. The second, the expansive use of secret surveillance powers on Americans, is currently under heated debate.

War Powers

The very first new authority created in the name of the war on terror was the Authorization for the Use of Military Force, or AUMF, passed by Congress one week after the 9/11 attacks. It gave the president the power “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

Unlike past declarations of war or authorizations for war in American history, it was staggeringly vague. It named no actual enemy or geographical locations. It made no reference to what conditions would end the hostilities and the power of that authorization. It was in essence “a blank check” for presidential war powers, as Congresswoman Barbara Lee (D-CA), the single member of Congress to vote no on its passage, warned at the time and has reiterated over the years.

It was also a game-changing authorization. Not only did it lack specifics, but it stripped Congress of its constitutionally authorized power to declare war. In the war on terror, Congress would defer to the president who could decide on his own when and where to launch attacks.

Over the course of the last two-plus decades, that 2001 AUMF has been used repeatedly to do exactly what Barbara Lee feared — namely, broaden the president’s power to commit acts of war against not just the terrorist groups who conspired in the 9/11 attacks, but groups in countries far and wide. According to the Costs of War Project at Brown University’s Watson Institute, as of 2021, it had been used in at least 22 countries, including Afghanistan, Djibouti, Eritrea, Ethiopia, Georgia,  Iraq,  Kenya, Niger, Pakistan, the Philippines, Somalia, and Yemen.

Twenty-two-and-a-half years later, in April 2023, Congressman Gregory Meeks, (D-NY), ranking member of the House Foreign Affairs Committee, acknowledged that the 2001 AUMF had indeed become, in the words of fellow Democrat Annie Kuster (D-NH), “a blank check for presidents from both parties to wage war around the world.”

There have been calls for the repeal of that AUMF over the years, including from — you undoubtedly won’t be surprised to learn — Representative Lee (repeatedly). This past fall, several such bills were introduced in both the House and Senate, including a bipartisan version by Senator Rand Paul (R-KY). 

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In the spring of 2023, Representative Meeks submitted his bill to replace the 2001 AUMF with a new one. In doing so, he sought to reestablish Congress’s constitutionally granted power to declare war, emphasized the statutory obligation of the president to brief Congress after launching any attack, and added that the president must brief Congress on a regular basis as to the uses of the AUMF.

In addition, he inserted language aimed at curtailing the Act’s expansiveness, including a requirement that the enemies to whom it could be applied be specifically named. He suggested three: the original al-Qaeda; the Islamic State Khorasan, based in Afghanistan and known as IS-K; and the Islamic State in Iraq and Syria, or ISIS. Moreover, his bill called for an annual reconsideration of those enemies and added provisions designed to end the president’s right to authorize the AUMF’s use for new groups by claiming they were just extensions of, or forces associated with, the already named groups. Furthermore, his bill prohibited its use against any unnamed enemy, “whether or not the entity is involved in an armed conflict against a force of a United States ally or partner or is an affiliate, associated force, or successor entity of an entity described in such subsection.”

To further constrain the broadness of that 2001 authorization, Meeks included a sunset clause at the end of four years unless it was reauthorized by Congress.

In a world where wars have broken out in Ukraine and now the Middle East, and where additional hostilities are simmering when it comes to the U.S., Iran, China, and Russia, such language would ensure that a separate congressional declaration of war would have to be approved for any enemy the U.S. decided to attack.

In these many ways, the new version of the AUMF would rein in the aberration of those war powers that came into being in the aftermath of 9/11.

And yet the time to redesign the authority of presidential war powers, as created more than 22 years ago by the war on terror, has still not arrived. Meeks’s bill, like Rand Paul’s, gained remarkably little traction. Likewise, a bill from those relatively few congressional representatives calling for a full repeal of that AUMF rather than a replacement of it failed to make it to a vote.

Surveillance

In addition to indefinite detention at Guantánamo and the authorization of endless, expansive war-making, ever more expansive intelligence collection, at home as well as abroad, has been a foundational pillar of the war on terror — and, like the AUMF, bringing it under some control has been mired in debate and controversy in recent months. In 2023, some members of Congress tried to put limits on part of a controversial law, Section 702 of the Foreign Intelligence Surveillance Amendments Act, passed in the summer of 2008 in the waning months of George W. Bush’s presidency. It authorized the collection and sharing of foreign intelligence for the purpose of deterring national security threats.

The problem was not the stated purpose of Section 702 — to acquire information on foreigners abroad who might pose a threat to the United States — but the domestic uses to which it’s been put. The act allows foreigners abroad to be surveilled without a warrant. But since its inception, it’s also been used for warrantless investigations of Americans whose communications have been caught up in sweeping searches of the communications of foreigners — investigations that have become known as “back-door searches.”

Constitutional scholars and civil liberties advocates have fought against Section 702 from its inception, arguing that such searches violate the Fourth Amendment’s guarantee against unreasonable searches and seizures without a warrant based on probable cause of criminal activity. As Elizabeth Gotein of the Brennan Center for Justice explains, “Section 702 lets the government collect the communications of non-Americans located abroad without a warrant. But because Americans talk to people outside the country, the surveillance inevitably sweeps in our private phone calls, emails, and text messages, too — information that the government would normally need a warrant to access.”  

In addition, experts note that, over time, the broad authority to collect the communications of Americans has been abused in alarming ways by the authorities. Gotein points out that 702-based warrantless searches have scrutinized the “communications of Black Lives Matter protesters, members of Congress, a local political party, a state court judge, journalists, and in one case, more than 19,000 contributors to a congressional campaign.” For their part, intelligence officials seeking a continuation of Section 702 point out that recent reforms have led to more responsible use of the authority.

Now, for the third time since its passage, Section 702 is up for renewal. December 31, 2023, was the legal deadline for a vote on it. Unlike the two prior times, however, the renewal date came and went without a vote. Instead, substantial opposition by legal experts and others led to several competing bills calling for Section 702’s reform.

One of the proposed bills, the Government Surveillance Reform Act, introduced by Democratic Senator Ron Wyden of Oregon and Republican Senator Mike Lee of Utah, as well as representatives Warren Davidson (R-OH) and Zoe Lofgren (D-CA) in the House, proposed that a warrant requirement be added to the search requirements when looking at the location data of Americans, web browsing and search records, vehicle data, and the like. In Lee’s version, any queries about the communications collected in a 702 search would, in accordance with the Fourth Amendment, require a warrant for material involving Americans.  The new bill would amount, in Gotein’s words, to closing “the backdoor search loophole.”

The Biden administration has, however, taken a notably aggressive stance against changes to the law, especially when it comes to the introduction of the warrant requirement. Numerous high-ranking officials have spoken out publicly, insisting that the warrant requirement would imperil their ability to keep the nation safe. In his written testimony before Congress, FBI Director Chris Wray insisted that it was “an essential tool” in the counterterrorism toolbox. In fact, he told Congress, it was potentially “the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans.” Andrew McCabe, acting director of the FBI after Donald Trump fired Director Jim Comey, put it even more starkly in a podcast devoted to the issue, labeling Section 702 “arguably the most significant national security tool in the intelligence community.” He then insisted that the requirement for a warrant was “completely unworkable.”

So fraught was the congressional loggerhead over Section 702 that the deadline for a decision proved unworkable. Instead, Congress inserted an extension to mid-April 2024 in this year’s defense spending bill, signed into law by President Biden three days before Christmas.

It’s likely that, as with the 2001 AUMF, the attempt to change Section 702 will fail. Powers once given, it seems, only prove ever harder to relinquish and, all too sadly, the overreach engendered by the war on terror has by now become an accepted part of the American (and congressional) way of life.

Guantánamo

And then there’s the most glaring symbol of the never-ending, often extralegal legacy of the war on terror, the continued existence of that grim prison at Guantánamo Bay, Cuba. Twenty-two years ago, the Bush administration set up that offshore detention facility for war-on-terror detainees, placing it beyond the reach of military, federal, or international law. Since then, on numerous occasions, new protections for the rights of prisoners there have been put into place, but none of them have addressed one fundamental wrong — namely, the decision that the federal court system was incapable of prosecuting those accused of engaging in terrorism against the United States, including those who conspired in the 9/11 attacks. 

Despite candidate Biden’s assertion that, unlike Donald Trump, he would support the closure of Guantánamo, his appointment of a special representative to oversee the transfer of its prisoners to federal prisons, and the actual transfer of 10 detainees, substantial efforts to finally shut down the prison have been noticeably absent. Once a facility that held 780 men captured in the war on terror, it now holds 30 individuals, 16 of whom have been cleared for transfer elsewhere, pending appropriate security arrangements. Another 10 are scheduled for trial by military commissions but their trials are not expected to begin anytime soon.

Whether it’s an endlessly expansive authorization for eternally conducting war around the world, the redefinition of surveillance powers to include Americans under the guise of a foreign threat, or the seemingly lackadaisical acceptance of Guantánamo as an institution, there is certainly one lasting lesson from the war on terror.  Once powers previously outlawed or at least restrained in the name of fair, just, and responsible laws and norms become codified and implemented, the road back to normalcy is tantamount to impossible.

Perhaps the best we can hope for is that wiser heads will prevail in the days to come. It is, however, a terrifyingly fragile approach, given the outlook for the 2024 election.

Copyright 2024 Karen J. Greenberg

Via Tomdispatch.com

At times due to a failure of will, at times due to a failure of the system itself or the sheer complexity of the logistics involved, and at times due to acts of Congress or the courts, efforts to shut that prison have been eternally stymied. Despite endless acknowledgements that what’s gone on there has defied domestic, international, and military law — not to mention longstanding norms of morality and justice — that prison persists.  

Recently, however, for those of us perpetually looking for a ray or even a glimmer of hope, there have finally been a few developments that seem to signal steps, however tiny, toward closure.

There are still 30 detainees at Guantánamo. Sixteen of them have been deemed no longer threats to the United States and cleared for release, but arrangements have yet to be made to transfer them to another country. Three others are considered too dangerous for release. And eleven have been charged in the military commissions system that was set up in 2006 and revised under President Obama in 2009. One, Ali Hamza Ahmad Suliman al-Bahlul, has been convicted. Another, Abd al-Hadi al-Iraqi, recently pleaded guilty. Now, nine detainees face trials in three separate cases. All of them were tortured at CIA “black sites” for different periods of time between 2003 and 2006.

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Progress in the Biden years has been occurring, even if at a snail’s pace. His administration has said that it intends to close Guantánamo by the end of his term.  And in the last two and a half years, it has indeed reduced the population from 40 to 30, the most recent transfer of a freed prisoner to another country occurring this April. In addition, the Biden administration increased the total number of remaining detainees eligible for release from six to its current 16.

Arranging such transfers has proven painstaking work, requiring complex negotiations with foreign countries, as well as assurances to American officials — and ultimately Congress — that the release will pose no future threat to the United States and that the prisoner will be treated justly in the receiving country. Those releases have been complicated because, after Obama announced at the outset of his presidency that Guantánamo would close within a year, Congress banned any Gitmo detainee from ever being transferred to the United States for any purpose whatsoever, a ban that’s been re-authorized every year since then.

While those detainees cleared for release await transfer to other countries, developments over the past few months have put the military commissions in the forefront of activities aimed at closure.

Until now, the commissions have indeed been a dismal failure. A mere nine convictions have been secured since the passage of the first Military Commissions Act in 2006, all but two through plea deals, and four of the nine have been overturned on appeal. Two remain on appeal. Generally, however, the fact that all of the individuals currently charged and facing trial were initially held at CIA black sites around the world where they were grievously tortured has proven an impassable barrier to trial. Consequently, as New York Times reporters Carol Rosenberg and Charlie Savage have reminded us, “No former C.I.A. detainee has been convicted at trial before a military commission.”

The reasons are many. Obama delayed the trials for three years and the pandemic delayed them further. But by far the biggest obstacle remains the fact that the detainees were horrifically tortured at those black sites. Defense attorneys have persistently insisted that evidence derived under torture should be inadmissible in the proceedings in accordance with the law. While the prosecutors have claimed otherwise, even so many years later, the tortured defendants continue to suffer from the devastating fashion in which they were treated, impeding their defense and causing further delay. In fact, their torture-induced severe psychological instability and often physical incapacity, not to mention instances of distrust of their lawyers, have made it difficult to hold hearings of any sort. As a result, after so many years, the cases remain in the throes of pre-trial hearings and jury selection is still far off.

President Biden has indeed set himself a lower bar than Obama, who issued an early executive order calling for the closure of the prison within a year only to encounter immediate blowback and failure. Still, Biden has made some modest headway in closing Gitmo. Since he took office, most of those who remained in “forever prisoner” limbo have at least been cleared for release. In addition, he’s appointed Tina Kaidanow, former State Department ambassador at large for counterterrorism, to oversee their transfers and has secured the release of 10 prisoners since he took office.

But the recent signs, however incremental, of further movement pertain not to the three remaining “forever prisoners” or to the 16 who have been cleared for release but to those being dealt with by the military commissions established by Congress.

The Military Commissions Cases

The military commissions still face the almost insurmountable hurdle that has haunted them from the start: the legacy of CIA torture. Nevertheless, there has been some recent modest progress, despite the irrevocable damage it caused both individual detainees and our system of justice.

The first signs of movement came in the initial days of the Biden presidency when the Pentagon referred charges against three men to the military commissions. The two Indonesians and one Malaysian captured in Thailand in 2003 had been accused in connection with bombings that targeted two nightclubs in Bali in 2002 and a Marriott Hotel in Jakarta in 2003, resulting in the deaths of more than 200 people, including Americans. A trial date has now been proposed for 2025. (This would, of course, be after Joe Biden’s first term in office.)

Then, there have been signs of progress on potential plea deals. In the summer of 2021, pretrial hearings in the case of Abd al-Hadi al-Iraqi, an Iraqi captured in 2006 and accused of being a senior member of al-Qaeda, began. The al-Iraqi case reached a resolution in June 2022, when he pleaded guilty to war-crime charges for acts committed in Afghanistan. The terms of his plea deal are still unknown. His sentencing is set for 2024.

In addition, starting in the spring of 2022, prosecutors reached out to defendants in the 9/11 case, who have been facing the death penalty, to begin potential plea-deal discussions in which a maximum life sentence would replace the threat of death. But the path towards resolution remains fraught. In September, perhaps in response to pressure from some of the 9/11 families intent on keeping the death penalty in place, President Biden reportedly refused to approve certain details of those proposed deals. As with so much else at Guantánamo, for every step forward, there seem to be two steps back. Still, negotiations are presumably continuing.

In another instance of inching forward, the commissions have recently addressed the case of Ramzi bin al-Shibh, one of the 9/11 defendants. He has displayed severe signs of mental instability, including delusions and hallucinations, owing to his brutal treatment in CIA custody. He’s convinced, for instance, that CIA agents are still pumping unnerving noises and vibrations into his cell, causing sleep deprivation. His inability to talk about much else has stymied the attempts of his lawyers to prepare him for future hearings. Last June 6th, in fact, a panel of psychiatrists and forensic experts declared him unfit to stand trial, given his post-traumatic stress syndrome and his psychotic delusions. Based on their report, Commissions Judge Matthew McCall agreed and, on September 21, 2023, severed him from the trial.

Excluding Tortured Evidence

While there are, in other words, signs of progress via plea deals and severance, the most promising development may be in the longest running military commission case of all, that of Abd al-Rahim al-Nashiri. He’s accused of masterminding the bombing of the USS Cole, a destroyer off the coast of Yemen, in 2000 killing 17 American servicemen.

Al-Nashiri, a Saudi, was held in CIA black sites from 2002 to 2006, while being tortured using techniques like waterboarding, stress positions, forced sodomy, and mock executions. He was finally indicted in 2011, but his case has faced innumerable pretrial hurdles since then, largely involving debates over evidence derived from torture and the possible inadmissibility of it at trial.

Lawyers considered that his case had taken a step forward when the government reversed its position on torture-derived evidence. A Biden Department of Justice brief filed on January 31, 2022, said, “The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees… [T]he government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.” That reversed a prior policy allowing such statements to be used in pretrial hearings, if not at trial itself.

Then, in August, the judge in the case made torture the grounds for taking yet another step forward. Like other detainees, al-Nashiri had been interviewed in later years by FBI “clean teams” of agents who attempted to solicit the same confessions without torture and were often successful. The prosecution wanted to use those confessions, but defense attorneys argued that the impact of torture didn’t dissipate with the clean teams, that the detainees feared their torturers were waiting in the wings to punish them if they gave different answers. They insisted that the defendant’s torture trauma and the perpetual fear of more of it remained an ongoing obstacle to statements of truth.

Al-Nashiri’s lawyers filed papers seeking to exclude his clean-team testimony.  Judge Lanny Acosta then took a long-overdue step forward, ruling against the admission of such later confessions. He noted that the clean-team agents “acted professionally and in no way coerced the accused,” even offering “tea and pastries” and reassuring the defendant that he was no longer in CIA custody. Nonetheless, Acosta ruled the statements inadmissible in pre-trial proceedings as well as at trial, since prolonged torture had undoubtedly affected al-Nashiri’s later testimony.

In his 50-page opinion, the judge offered a detailed chronology of the kinds of torture Nashiri had suffered and noted as well the continued use of force against him during his time at Guantánamo, treatment and conditions that could indeed evoke memories of his period in CIA custody. As the judge wrote,

“[H]e was in no position to know whether Drs. Mitchell and/or Jessen [the architects of the CIA’s “Enhanced Interrogation” program] were watching…. prepared to intervene with more abusive treatment… He had no reason to doubt that he might, without notice, suddenly be shipped back to a dungeon like the ones he had experienced before… [or if someone] lurked nearby with a pistol, a drill, or a broomstick, ready to intervene in the event he chose to remain silent or to offer versions of events that differed from what he told his prior investigators.”

As the Judge concluded, “Even if the 2007 statements were not obtained by torture or cruel, inhuman, and degrading treatment, they were derived from it.” Michel Paradis, a senior attorney in the Department of Defense’s Office of the Chief Defense Counsel and counsel for Abd al-Rahim al-Nashiri, has summed up the situation aptly, telling me, “What the refusal to admit the so-called ‘clean team’ statement shows is what anyone who looks at it up close sees. There is nothing clean about torture and there is no way to sanitize it.”

The judge’s decision also marks a potential threshold for the remaining Gitmo cases. If evidence from torture is disallowed, including in pre-trial proceedings, that may lead to future plea deals and even some leniency. Either way, in the wake of Judge Acosta’s decision, the interminably slow Guantánamo cases might just begin to proceed more rapidly.

Add to all this the effect of the passage of time, given among other things the aging not just of Gitmo’s prisoners, but of those working to bring their cases to trial over all these years, many of whom have retired. Judge Acosta gave notice of his retirement from the Army as September ended, while Matthew McCall, the fourth judge to preside over the 9/11 case, has similarly indicated that he’ll be leaving next April, also before it comes to trial. Several of the attorneys for the detainees have retired as well, after so many years representing their clients.

The belated but increasingly accepted notion that torture renders trials impossible, now seemingly shared by the court as well as the defense teams, has become more than mere rhetoric. As Paradis commented to me, “No justice system worth the name permits even the whiff of evidence tainted by torture. We have revolted at the idea for more than a century in this country and even persuaded the world that it should do the same, such as when Ronald Reagan signed the Convention Against Torture.”

Ironically, the acknowledgement of this reality may finally bring these cases to their conclusion. But so many years later, despite being determined to grasp every ray of hope, I suspect that, when it comes to the closing of Guantánamo, the sorrowful record of the past may overshadow the dreams of a better tomorrow. 

Copyright 2023 Karen J. Greenberg

Tomdispatch.com

Last month, in response to a column I wrote for TomDispatch — one of dozens, I’m sad to say, that I’ve done on Guantánamo over these endless years — I received a surprise email: an invitation to attend a meeting at the British Parliament. A group known as the All Party Parliamentary Group (APPG) for Closing the Guantanamo Bay Detention Facility, formed this April, was gathering for the second time. Its stated purpose is “to urge the U.S. administration to close the Guantánamo Bay detention facility, to ensure the safe resettlement of those approved for release, and to ensure that due process is expedited for all the remaining prisoners.” Nine members of the House of Parliament and four Members of the House of Lords have already joined the group.

Thirty men remain in custody at that infamous American prison in Guantánamo Bay, Cuba. Sixteen of those detainees have finally been cleared for release; they are, that is, no longer subject to criminal charges or considered a potential danger to the United States and yet they still remain behind bars. Three other prisoners have never either been charged with a crime or cleared for release. Ten more are still facing trial, while one has been convicted and remains in custody there. For the APPG, the release of those 16 cleared detainees is a paramount goal. 

That meeting I attended included a handful of MPs from all parties, as well as leading figures from British organizations that have been supporting justice for Guantánamo’s detainees for decades. Also present were two former detainees. One was Moazzem Begg, among the first prisoners released in 2005 and repatriated to England, where he is now a senior director at CAGE, an advocacy group focused on the remaining Gitmo detainees. In 2006, he published Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar, an early account of the injustices and cruelties in America’s war-on-terror prisons. The other was Mohamedou Salahi, whose book Guantánamo Diary led to the dramatic film The Mauritanian about his life at that infamous prison. A third former detainee, Mansoor Adayfi, author of Don’t Forget Us Here, had been transferred from Gitmo to Serbia in 2016. Though invited to attend, his visa wasn’t approved in time. 

That meeting was but one of several recent events in which organizations outside the United States have issued detailed impassioned calls for this country to finally address the ongoing nightmare it created so long ago at Guantánamo. 

Site Visits and U.N. Reports

In April, Patrick Hamilton, the head of the International Committee of the Red Cross (ICRC), made a site visit to Guantánamo and issued “a rare statement of alarm.” It was, as New York Times reporter Carol Rosenberg pointed out, the ICRC’s 146th visit to the prison since it opened in January 2002. That short statement urged American officials to address the deteriorating health of the prisoners there, concluding, “The planning for an aging population,” it concluded, “cannot afford to wait.”.

Then, in mid-June, the U.N. Human Rights Council followed up its own site visit by issuing a comprehensive, devastatingly critical report. Fionnuala Ni Aoláin, that council’s special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, focused on the potential war crimes and “crimes against humanity” committed against the detainees during and after their time at that island prison, now in its 21st year of existence. 

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Ni Aoláin was the perfect person for the job. She’s long defended human rights and international law, with a particular focus on issues of justice and human dignity. In 2013, she co-edited Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective. Her 2023 report, clear, fact-based, and measured in tone, is in many ways a step above that of any of its predecessors. 

Hers was, of course, anything but the first U.N. report to address the sins of Guantánamo. In 2010, the U.N. Human Rights Council prepared a detailed report on “global practices in relation to secret detention in the context of countering terrorism.” It focused on violations of international law carried out globally, often involving exceptionally cruel treatment and outright torture. Alongside sections on countries throughout Africa and the Middle East that abused captives, the torture and misuse of prisoners in the American war on terror at CIA black sites around the world and Guantánamo Bay took center stage. The study focused special attention on the lack of accountability when it came to Americans who had implemented or abetted the mistreatment and secret detention of prisoners.

Twelve years later, in March  2022, Ni Aoláin, five years into her role as special rapporteur wrote a follow-up to the report, highlighting “the abject failure to implement the recommendations” of that study and the “tragic and profound consequences for individuals who were systematically tortured, rendered across borders, arbitrarily detained, and deprived of their most fundamental rights.” Her update “reiterates the demand that accountability, reparation, and transparency be implemented by those states responsible for these grave human rights violations.”

Now, she has issued her new 23-page report, adding significantly to the debate over liberty and security that has defined discussions over Guantánamo since its birth in January 2002.

A Singular Report

A notable distinction between this report and those that preceded it is the access the special rapporteur was granted by the Biden administration. It was, in fact, the first visit ever to Guantánamo by an independent U.N. investigator. After two decades in which administration after administration placed severe restrictions on journalists as well as non-governmental and international organizations when it came to covering that prison, the Biden administration granted Ni Aoláin remarkably full access “to former and current detention facilities and to detainees, including ‘high value’ and ‘non-high value’ detainees.”

The interviews she conducted with those still imprisoned there were both confidential and unsupervised. She was allowed to deal with “military and civilian personnel, military commission personnel, and defense lawyers.” She also “interviewed victims, survivors, and families of victims of the September 11, 2001 terrorist attacks, former detainees in countries of resettlement or repatriation, and human rights and humanitarian organizations.” Ni Aoláin commended the Biden administration for allowing such unprecedented access. “Few states.,” as she puts it, “exhibit such courage.” 

In the process, she drew a uniquely sweeping picture of Guantánamo — from the period after the horrifying 9/11 attacks through the widespread and gruesome torture of prisoners at CIA black sites to the grim details of detention at Gitmo itself to the often unjust and harmful fates of the detainees who were finally released to the persistent challenges that lie ahead. It’s the first report to tie together, historically as well as legally, the many grim pieces of the post-9/11 story that have previously been underappreciated.  

Like its predecessors, Ni Aoláin’s report reiterates the sins of Guantánamo: the physical and psychological abuse and outright cruelties committed there and the lack of any access to justice for its prisoners. She also reminds us that “the vast majority of the men rendered and detained there were brought without cause and had no relationship whatsoever with the events that took place on 9/11.” She calls out the United States for its widespread ongoing violations of human rights and international law and mentions numerous times that the way it dealt with its detainees amounted to “cruel, inhuman, and degrading treatment.” 

Her report, however, also potentially shifts the never-ending discussion of Guantánamo to new ground.

Putting the Focus on the Prisoners 

As a start, Ni Aoláin looks beyond policymaking to the more subtle forms of injustice and harm that became the daily essence of Guantánamo. She particularly focuses on what she calls the “arbitrariness” and the damage it has caused. “Arbitrariness,” she concludes, “pervades the entirety of the Guantánamo detention infrastructure,” leading to a persistent lack of predictability in treatment. While Standard Operating Procedures (SOPs) do exist when it comes to “detainee reception and transfer, restraints, cell block searches, mess operations, religious accommodations, and medication distribution,” the deeper reality has been one of constant, cruel, and unpredictable deviations from those SOPs.

In fact, “arbitrariness, confusion, and inconsistency” define life at Guantánamo and have only been exacerbated by the secrecy with which those SOPs are guarded, further intensifying the cruel and inhuman treatment that has always defined that prison. Ni Aoláin suggests that it’s finally time for transparency to come to Gitmo. For example, many of the detainees suffer from the long-term effects of torture, a past all too lacking in transparency, and neither they nor their lawyers have access to their unclassified medical files.

She underscores her focus on finally bringing humanity to Gitmo by arguing that the widespread abuses Americans committed over the years, including by setting up a prison offshore of American justice, also significantly impacted the families of those who were killed in the attacks of September 11, 2001. She begins with torture, suggesting “that the systematic rendition and torture at multiple (including black) sites and thereafter at Guantánamo Bay, Cuba — with the entrenched legal and policy practices of occluding and protecting those who ordered, perpetrated, facilitated, supervised, or concealed torture — comprise the single most significant barrier to fulfilling victims’ rights to justice and accountability.” In her view, the use of torture was “a betrayal of the rights of victims,” too, by making the holding of trials impossible to this day and so making both accountability and closure inconceivable for the victims’ families.  

While widening the lens to include a larger pool of victims, Ni Aoláin also widens the time frame.  The mistreatment of detainees at Gitmo, she emphasizes, continues to this day. “Regrettably,” she writes, “the vast majority of detainees continue to experience sustained human rights violations beginning with the very process of transfer to the country of return or resettlement.”

In fact, the transfer of former prisoners from that prison to countries like the United Arab Emirates (UAE), Serbia, Kazakstan, and Slovakia has often resulted in yet more degradation, including utter social ostracism, the inability to obtain work, or even additional transfers to countries where yet more cruel and inhuman treatment has subsequently occurred. Sadly, for those “released” from that prison, the term “Guantanamo 2.0” best describes their situations. 

One case in particular has been a focal point for the APPG in London: Ravil Mingazov, a Russian citizen granted asylum in Great Britain. He was captured in Pakistan in 2002. Accused of being associated with al-Qaeda and the Taliban, he would then be transported to Gitmo where he remained until 2017 when he was cleared for release to the UAE. After his arrival there, however, he was again imprisoned, despite assurances that his release would include rehabilitation and support for rebuilding his life. He’s now been detained there for six years. In 2021, reports circulated that the UAE was trying to send Mingazov back to Russia, where he would face probable imprisonment and mistreatment. To make matters worse, for the past two years, his family has had no news of him. 

Ni Aoláin also highlights American attempts to destroy certain parts of Guantánamo and so functionally erase the record of what went on there. She calls instead for “the preservation and access to both prior and present detention sites,” as well as medical records and digital evidence. The crimes committed at Guantánamo, she emphasizes, need to be kept on the record and addressed, adding that “the U.S. government has an ongoing obligation to investigate the crimes committed [there], including an assessment of whether they meet the threshold of war crimes and crimes against humanity.” 

Worse yet, redress for the victims of the 9/11 attacks and their families remains lacking. They continue to need treatment in ways not provided for and she recommends a “comprehensive audit of existing medical support (physical and psychological) for victims and survivors” and a commitment “to comprehensive lifelong holistic support for survivors.” 

Succinct, measured, and profoundly disturbing, her report calls for a way forward that directly addresses the crimes of the past, including the need for public apology, compensation to former detainees, and the shutting down of that infamous prison. Her message: after all these years, even decades, the harm and the crimes associated with Guantánamo are still unending.  

Where We Are Now

While the U.N., the ICRC, the British Parliament, and various nongovernmental organizations focus on Guantánamo’s sins and its painful legacy, the United States continues to fail to close the prison, even though the need for closure was acknowledged in 2006 by no less than its “founder,” President George W. Bush. On July 14th, when the House passed its version of the latest National Defense Authorization Act, it not only kept in place a prohibition on the use of funds to close Guantánamo but extended a congressional ban on using such funds to transfer detainees to the United States or six countries in the greater Middle East, making the end of Gitmo that much harder. 

With her steady hand and deployment of facts, Ni Aoláin was unsparing in her conclusions about the injustice and perpetual cruelty that still is Guantánamo. Yes, she appreciates any movement forward, even at this late date, including “the openness and willingness” of the Biden administration to allow her to visit the prison. Still, she couldn’t be clearer on what, 21 years later, is needed: accountability for the perpetrators and restitution for the victims.

Closing the prison, if it ever actually happens, will not be enough. Sadly, even such an act will not bring true closure to the sins of America’s forever prison.

Copyright 2023 Karen J. Greenberg

Via Tomdispatch.com