Karen J. Greenberg

Death by a thousand secrets? Why transparency is vital to democracy

Karen Greenberg, Privatizing Secrecy

I hate to admit it, but I almost burst out laughing over the way a number of Republicans — and not just Marjorie Taylor Greeneresponded to the raid on Donald Trump’s Mar-a-Lago estate with a new chant: defund the FBI. (Greene was at the head of the pack, already peddling “Defund the FBI” T-shirts!) It was, of course, a phrase picked up, though obviously without credit, from the demands of some Black Lives Matter protesters to “defund the police.” Never in my life, though, would I have imagined that any congressional Republicans would push such a slogan or claim that the Bureau was “corrupt to the core.” (In another universe, J. Edgar Hoover must have had a heart attack.) And yet I lived to see it.

It should remain an unforgettable moment. That’s especially true because, though so many Trumpublicans went after the FBI, its agents, and the Justice Department, they seemed to have nothing to say about the top secret, heavily classified documents President Trump’s aides swept up and took with them in their chaotic last moments in a White House their boss never intended to leave.

Or to put it another way, none of those Republicans — not for a second — thought about chanting “Defund the national security state.” It didn’t matter that, if it weren’t for the urge of the Pentagon, the CIA, the National Security Agency, and the rest of that crew to make the world their secret domain, none of this would have happened. It was, of course, in the name of the national security state, or the NSS (if you don’t mind my making up an acronym), that those FBI foot soldiers entered the former president’s Mar-a-Lago estate in the first place. But count on one thing: the next time the issue of the Pentagon budget comes up, most of those defunder Republicans will do as they’ve always done — if you doubt it, check out the recent TomDispatch piece by Pentagon experts William Hartung and Julia Gledhill — and vote to give that institution even more money than the ridiculous sums it asks for.

It is, of course, the NSS that considers so much of our world its private property, far too obviously secret to share with the rest of us. And while past presidents like George W. Bush and Barack Obama didn’t stagger out of the White House loaded down with secret documents, as TomDispatch regular Karen Greenberg, author of Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump, points out so vividly today, secrecy has been the name of the only game in town (Washington) forever and a day. Tom

Donald Trump’s Document Grab – Enhanced Secrecy Techniques Are the Order of the Day (and the Century, Too)

Thanks to Donald Trump, secrecy is big news these days. However, as political pundits and legal experts race to expose the layers of document-related misdeeds previously buried at his Mar-a-Lago estate, one overlooked reality looms large: despite all the coverage of the thousands of documents Trump took with him when he left the White House, there’s been next to no acknowledgment that such a refusal to share information has been part and parcel of the Washington scene for far longer than the current moment.

The hiding of information by the former president, repeatedly described as “unprecedented” behavior, is actually part of a continuum of withholding that’s been growing at a striking pace for decades. By the time Donald Trump entered the Oval Office, the stage had long been set for removing information from the public record in an alarmingly broad fashion, a pattern that he would take to new levels.

The “Secrecy President”

As recent history’s exhibit number one, this country’s global war on terror, launched soon after the 9/11 attacks, was largely defined and enabled by the withholding of information — including secret memos, hidden authorizations, and the use of covert methods. During President George W. Bush’s first term in office, government lawyers and officials regularly withheld information about their actions and documents related to them from public view, both at home and abroad.

Those officials, for instance, legalized the brutal interrogations of war-on-terror prisoners, while conveniently replacing the word “torture” with the phrase “enhanced interrogation techniques” and so surreptitiously evading a longstanding legal ban on the practice. The CIA then secretly utilized those medieval techniques at “black sites” around the world where its agents held suspected terrorists. It later destroyed the tapes made of those interrogations, erasing the evidence of what its agents had done. On the home front, in a similarly secretive fashion, unknown to members of Congress as well as the general public, President Bush authorized the National Security Agency to set up an elaborate and far-reaching program of warrantless surveillance on Americans and others inside the United States.

Consider that the launching of an era of enhanced secrecy techniques. No wonder Bush earned the moniker of the “secrecy president.” Only weeks after the 9/11 attacks, for instance, he put in place strict guidelines about who could brief Congress on classified matters, while instituting new, lower standards for transparency. He even issued a signing statement rebuking Congress for requiring reports “in written form” on “significant anticipated intelligence activities or significant intelligence failure.” To emphasize his sense of righteousness in defying calls for information, he insisted on the “president’s constitutional authority to… withhold information” in cases of foreign relations and national security. In a parallel fashion, his administration put new regulations in place limiting the release of information under the Freedom of Information Act (FOIA).

President Obama also withheld information when it came to war-on-terror efforts. Notably, his administration shrouded in secrecy the use of armed drones to target and kill suspected terrorists (and civilians) in Libya, Pakistan, Somalia, and Yemen. Official reports omitted reliable data about who was killed, where the killings had taken place, or the number of civilian casualties. As the American Civil Liberties Union concluded, administration reporting on civilian harm fell “far short of the standards for transparency and accountability needed to ensure that the government’s targeted killing program is lawful under domestic and international law.”

And well beyond the war-on-terror context, the claim to secrecy has become a government default mechanism. Tellingly, the number of classified documents soared to unimaginable heights in those years. As the National Archives reports, in 2012, documents with classified markings — including “top secret,” “secret,” and “confidential” — reached a staggering 95 million. And while the overall numbers had declined by 2017, the extent of government classification then and now remains alarming.

Erasing the Record Before It’s Created

President Trump’s document theft should be understood, then, as just another piece of the secrecy matrix.

Despite his claim — outrageous, but perhaps no more than so many other claims he made — to being the “most transparent” president ever, he turned out to be a stickler for withholding information on numerous fronts. Taking the war-on-terror behavioral patterns of his predecessors to heart, he expanded the information vacuum well beyond the sphere of war and national security to the purely political and personal realms. As a start, he refused to testify in the Mueller investigation into the 2016 presidential election. On a more personal note, he also filed suit to keep his tax records secret from Congress.

In fact, during his time in office, Trump virtually transformed the very exercise of withholding information. In place of secrecy in the form of classification, he developed a strategy of preventing documents and records from even being created in the first place.

Three months into his presidency, Trump announced that the White House would cease to disclose its visitor logs, citing the supposed risk to both national security and presidential privacy. In addition to hiding the names of those with whom he met, specific high-level meetings took place in an unrecorded fashion so that even the members of his cabinet, no less the public, would never know about them.

As former National Security Advisor John Bolton and others have attested, when it came to meetings with Russian President Vladimir Putin, Trump even prohibited note-taking. In at least five such meetings over the course of his first two years in office, he consistently excluded White House officials and members of the State Department. On at least one occasion, he even confiscated notes his interpreter took to ensure that there would be no record.

Congress, too, was forbidden access to information under Trump. Lawyers in the Department of Justice (DOJ) drafted memos hardening policies against complying with congressional requests for information in what former DOJ lawyer Annie Owens has described as “a policy that approached outright refusal” to share information. In addition, the Trump administration was lax or even dismissive when it came to compliance with the production of required reports on national security matters. Note as well the reversal of policies aimed at transparency, as in the decision to reverse an Obama-era policy of making public the number of nuclear weapons the U.S. possessed.

But don’t just blame Donald Trump. Among the most recent examples of erasing evidence, it’s become clear that the Secret Service deleted the text messages of its agents around the president from the day before and the day of the January 6th insurrection. So, too, the phone records of several top Immigration and Customs Enforcement officials were wiped clean when they left office in accordance with directives established early in the Trump presidency. Similarly, the phone records of top Department of Defense and Department of Homeland Security officials were scrapped. In other words, recent reports on the way Trump regularly shredded documents, flushed them down the White House toilet, and generally withheld presidential papers — even classified documents, as revealed during the Mar-a-Lago search — were of a piece with a larger disdain on the part of both the president and a number of his top officials for sharing information.

Erasing the record in one fashion or another became the Trump administration’s default setting, variations on a theme hammered out by his predecessors and taken to new levels on his watch.

A Perpetual Right to Secrecy?

Admittedly, before Trump arrived on the scene, there were some efforts to reverse this pattern, but in the long run they proved anemic. Barack Obama arrived at the White House in January 2009 acknowledging the harm caused by excessive government secrecy. Emphasizing transparency’s importance for accountability, informed public debate, and establishing trust in government, the new president issued an executive order on his first full day in office emphasizing the importance of “transparency and open government” and pledging to create “an unprecedented level of openness in government.”

Nearly a year later, he followed up with another executive order setting out a series of reforms aimed at widening the parameters for information-sharing. That order tightened guidelines around classification and broadened the possibilities for declassifying information. “Our democratic principles require that the American people be informed of the activities of their government,” it read. Six years later, Obama’s Director of National Intelligence James Clapper produced a report on the “principles of Intelligence transparency for the intelligence community” and a “transparency implementation plan” that again aimed at clarifying the limits, as well as the purposes, of secrecy.

And Obama’s efforts did indeed make some headway. As Steven Aftergood, former director of the Federation of American Scientists, concluded, “The Obama administration broke down longstanding barriers to public access and opened up previously inaccessible records of enormous importance and value.” Among other things, Aftergood reported, Obama “declassified the current size of the U.S. nuclear arms arsenal for the first time ever,” as well as thousands of the president’s daily briefs, and established a National Declassification Center.

Still, in the end, the progress proved disappointing. As Washington Post columnist Margaret Sullivan put it, the Obama administration’s record on transparency was among “the most secretive” in our history. She also castigated the president’s team for “setting new records for stonewalling or rejecting Freedom of Information Requests.” As an Associated Press analysis of federal data verified, the Obama administration did indeed set records in some years when it came to not granting those FOIA requests.

Executive distaste for sharing information is certainly nothing new and has often been linked, as during the war on terror, to misrepresentations, misdeeds, and outright deceit. After all, half a century ago, the administration of President Richard Nixon (of Watergate fame) defended the right to withhold information from the public as an effective way of covering up the American role in Vietnam. Those withheld materials, eventually released by the New York Times, showed that, over the course of four administrations, the national security state had misled the public about what the U.S. was doing in Vietnam, including hiding the secret bombing of neighboring Cambodia and Laos.

Still, let’s recognize what Donald Trump has, in fact, done. Though no longer president, he’s now taken the withholding of government information well beyond the borders of the government itself and deep into his private realm. In doing so, he’s set a dangerous precedent, one that brought the FBI to his doorstep (after months of attempts to access the documents in less intrusive ways). The challenge now is to address not just Trump’s clumsy efforts to unilaterally privatize a government practice, but the systemic overreach officials have relied on for decades to withhold staggering amounts of information from the public.

The Biden administration is alert to this issue. Notably, President Biden reversed several of Trump’s classification decisions, including his policy of not reporting the number of American nuclear weapons. More systematically, the National Security Council recently launched an effort aimed at revising the nation’s unwieldy classification system, while Director of National Intelligence Avril Haines has stated her intention to review the excessive classification of government documents.

In a 2022 letter to Congress, Haines pointed to the downside of a government that refuses to share information. “It is my view,” she wrote, “that deficiencies in the current classification system undermine our national security, as well as critical democratic objectives, by impeding our ability to share information in a timely manner, be that sharing with our intelligence partners, our oversight bodies, or, when appropriate, with the general public.”

True to her word, in the three months following that statement of allegiance to transparency, Haines has released a steady flow of material on controversial topics, including unclassified reports on everything from the origins of Covid to climate change to an assessment of the “Saudi government’s role in the killing of Jamal Khashoggi.”

Still, despite such efforts, the powers that be are arguably being hoisted on their own petard. After all, Donald Trump followed in the wake of his predecessors in sanctioning expansive secrecy, then made it a be-all and end-all of his presidency, and now claims that it’s part of his rights as a former president and private citizen. As the head of a political movement, now out of office, he’s done the once unthinkable by claiming that the veil of secrecy, the right to decide what should be known and who should know it, is his in perpetuity.

The horror of his claim to untethered secret authority — no wonder some of his MAGA followers refer to him as their “god-emperor” — violates the very idea that a democracy is a pact between individual citizens and elected officials. The valid response to the holding of documents at Mar-a-Lago shouldn’t just be reclaiming them for the public record or even the clear demarcation of the law as it applies to a private citizen as opposed to a president (though both are essential). What’s needed is a full-throated demand that policies of secrecy, allowed to expand exponentially in this century without accountability or transparency, are destructive of democracy and should be ended.

'A symbol of our failure': The dark truth about closing the Guantánamo Bay prison

It’s now more than 20 years later and that American offshore symbol of mistreatment and injustice, the prison at Guantánamo Bay, Cuba, is still open. In fact, as 2021 ended, New York Times reporter Carol Rosenberg, who has covered that notorious prison complex since its first day, reported on the Pentagon’s plans to build a brand-new prefab courthouse at that naval base. It’s intended to serve as a second, even more secret facility for holding the four remaining trials of war-on-terror detainees and is scheduled to be ready “sometime in 2023.”

Close Guantánamo? Not soon, it seems. The cost of that new construction is a mere $4 million, a relatively minor sum compared to the $6 billion dollars and counting that detention and trial operations had claimed by 2019, according to the estimate of one whistleblower.

Notably, the news about the building of that secret courtroom coincided with the 20-year anniversary of the detention facility and the administration of the second president who’s intending to shut the place down. Its plans are meant to suggest that the proposed structure will actually contribute to that never-ending process of closing the world’s most notorious prison camp. Guantánamo currently has 39 detainees in custody, 12 of whom are held under a military commissions system; 18 of whom, long kept without charges of any sort, have now been officially cleared for release to chosen countries which agree to have them (which doesn’t mean that they’ll actually be released); and nine of whom, also never charged, are merely hoping for such clearance.

With two courtrooms instead of one, trials, at least more than a year away, could theoretically take place at the same time rather than sequentially. Unfortunately, it’s hard to imagine that the number of courtrooms will have any effect on a speedier outcome. As Scott Roehm, Washington director for the Center for Victims of Torture, recently told the Daily Beast, “There is a consensus that the commissions have failed — but they haven’t failed because of a lack of courtrooms.”

Consider it a record of sorts that, in 20 years, only two trials have ever been completed there, both in 2008. Both led to convictions, one of which was later overturned, one of which is still on appeal. This paltry record is another sign of the forever reality of Guantánamo, where neither small nips and tucks nor major alterations have proved anything more than cosmetic dressing for a situation that has proven intractable over three presidencies and the beginning of a fourth.

Of late, there has been a growing consensus that closing the prison is a must, especially given the final debacle of the U.S. departure from Afghanistan. As Senator Dianne Feinstein (D-CA) wrote at Lawfare on the 20-year anniversary of that offshore symbol of all-American injustice, “Ending the failed experiment of detention at Guantánamo Bay won’t be easy. But now that the U.S.’s war in Afghanistan is over, it’s time to shut the doors on Guantánamo once and for all.” On the floor of the Senate that same day, Senator Dick Durbin (D-IL) called for closure as well, deriding the prison camp as “a symbol of our failure to hold terrorists accountable and our failure to honor the sacrifices of our service members. These failures should not be passed on to another generation — they should end with the Biden Administration.”

But calling for closure is one thing, closing that prison is quite another.

The Challenges of Closure

Commonly, the closing of Guantánamo is envisioned as involving a series of practical steps which I, like so many others, have been suggesting for years now. The most recent proposal comes from the University of Pennsylvania’s Center for Ethics and the Rule of Law, which has outlined a 13-step process aimed at shutting down that facility for good. This entails resolving the remaining cases in the military commissions (10 still facing trial, two already convicted), while emptying the prison of its remaining 27 prisoners held in indefinite detention without charge.

Let’s begin with the military commissions. The new courtroom — facing completion sometime in 2023, potentially almost two years away — is meant to “speed up” the trial process. Still, in the last 20 years, there have been just eight convictions, most due to plea deals. Three of them have since been overturned and three more are still on appeal. In other words, we’re talking about a staggering picture of wholesale failure.

True, there have been dozens of pre-trial hearings for the four trials now pending. But pre-trial hearings are one thing, trials another. Most incredibly, the trials of the alleged 9/11 co-conspirators have still not begun.

And there’s little hope that those will ever find a way forward to resolution. For starters, the individuals to be tried were first tortured at CIA black sites before being brought to Cuba, and much of the evidence and testimony relevant to their cases is largely derived from such torture practices. Even with resolution, it’s nearly impossible to imagine how such proceedings would ever lead to justice.

How (Not) to Exit Guantánamo

There are at least two suggested ways of finally resolving the military commissions in the relatively near future. Human rights lawyer and military commissions defense attorney Michel Paradis recently laid these out on a Lawfare podcast. One would be for the government to take the death penalty off the table and open the door to plea deals. Numerous experts have supported this way forward. So, too, Colleen Kelly, head of September 11th Families for Peaceful Tomorrows, an organization of the family members of 9/11 victims, has indicated support for this option, as she recently testified before the Senate Judiciary Committee. Another option, Paradis pointed out, would be to move the trials to federal courts in the United States. Unfortunately, that’s an unlikely prospect indeed, given a congressional ban on Guantánamo detainees being brought to this country that’s been in place for more than a decade.

In 2010, one such detainee was indeed tried in federal court. That was then-Attorney General Eric Holder’s idea — as a prelude, he hoped, to bringing the other trials to federal courts — and it was the right one. The case in question was that of Ahmed Ghailani, accused of involvement in embassy bombings in 1998 that killed 224 individuals. Like others held at Guantánamo, he had been tortured at a CIA black site, evidence that was excluded at trial. He was, in the end, acquitted on 284 of 285 charges. Nonetheless, the case was resolved and, on that final charge, he’s serving a life term at a federal penitentiary in Kentucky.

On the other side of the Guantánamo quagmire are those detainees who will never be charged, the ones Carol Rosenberg originally dubbed the “forever prisoners.” Eighteen of them have now actually been cleared for release by the prison’s Periodic Review Board. For those forever detainees to actually exit the prison, however, depends upon diplomatic arrangements with other countries.

To date, such detainees have gone to at least 60 countries in Europe, Central Asia, the Middle East, and Africa. At least 150 of them were sent to nations other than those in which they had been citizens. Those transfers were arranged by the special envoy for the State Department’s Guantánamo closure office, which itself was closed during Donald Trump’s presidency and remains so today. Reopening it is a necessary step towards emptying Guantánamo of its forever detainees.

Unfortunately, it’s most likely that new ways will be discovered to kick the ball of closure endlessly down the road. As attorney Tom Wilner, who has worked as a human rights lawyer on behalf of several of the detainees, said at a panel held to commemorate the prison’s 20th anniversary, “The military commissions aren’t ever going to work.”

Meanwhile, when it comes to those who are not yet charged but have been authorized for transfer, there’s no guarantee that such releases will actually occur any time soon.

The Longer Legacy

In the legal quagmire the U.S. has created, there is, in fact, no easy solution to closing Guantanamo.

It’s worth noting, as well, that even were the Biden administration capable of implementing an immediate, aggressive strategy to shut the prison down, the horrors it unleashed are guaranteed to linger well into the future. “There are some problems of Guantánamo that will never go away,” Daniel Fried, President Barack Obama’s first special envoy for closure, admitted to the Guardian recently.

For one thing, the multi-decade inability of the American legal system to try such prisoners, either on or offshore, has left a stain on the competency of the country’s judicial system, civilian and military, as well as on Congress’s ability to create legitimate workable alternatives to that very system. Not being able, of all things, even to bring the alleged 9/11 attack co-conspirators, already in custody at Guantánamo Bay, to any court sends a message that American justice in the twenty-first century is incapable of handling such incredibly important cases.

And when it comes to the detainees who have been transferred elsewhere in the world, the story is hardly less grim. As the Guardian has reported, those sent to third countries regularly encountered further forms of deprivation, cruelty, imprisonment, or torture. Often unschooled in the language of their host countries, denied travel papers, and stigmatized due to their Guantánamo past, “released” detainees found, as a Washington Post report summed it up, that “life after Guantánamo is its own kind of prison.”

Mansoor Adayfi, a detainee transferred to Serbia rather than his home country of Yemen, has described the dire conditions of post-prison life in his book Don’t Forget Us Here, referring to it as “Guantánamo 2.0.” As he told the Intercept’s Cora Currier recently, “Released, I have been detained, beaten, arrested, and they have my friends harassed, interrogated.” And that, of course, is after, like so many prisoners in that island jail, having been regularly beaten, force-fed, and kept in solitary confinement while there.

In such a context, the plan for an all-new courtroom takes on a new kind of significance.

The Courtroom, Then and Now

From the very beginning of Guantánamo, the courthouse at that U.S. base on the island of Cuba has served as a revealing symbol of the prison’s venality.

In the first days of that war-on-terror detention camp, as I described in my book The Least Worst Place: Guantanamo’s First 100 Days, Captain Bob Buehn, then the naval base commander there, gave himself the mission of finding a proper plot of land on which to build a courtroom to try the detainees arriving by the plane load. He considered it his duty to do so, only to quickly grasp that no one in power considered this the prison’s objective and that no such plans would be forthcoming any time soon.

As Major General Michael Lehnert, the commander of that detention facility at the time of its opening, reminded me recently, the initial mission was about “intelligence collection,” not trials. Accordingly, it wasn’t until two years later that hearings even began for the detainees — and then only for a few of them.

Originally, those proceedings took place in a windowless room constructed to ensure security and secrecy, a room far too small for its purpose. Once a formal version of the military commissions was authorized by Congress in the Military Commissions Act of 2006, a new facility was built that included a state-of-the-art SCIF (sensitive compartmented information facility), a carefully “secured” room meant to be a classified setting. It was an ugly irony, however, that underneath that room was a toxic waste dump, with all the perils to lawyers and others you might imagine. Sometimes all too literally reeking of the environmental misdeeds of the past, the new courtroom has gone forward on a poisoned path of its own, somehow trying to avoid the information extracted by torture that lay at the heart of the cases waiting to be tried.

Now, a new building is going up, even more wed to secrecy as well as to the suppression of the torture the defendants endured at American hands. As Carol Rosenberg reports, it will be wrapped in yet more secrecy, since the “current war court chamber” did at least allow spectators. The new one won’t. “Only people with a secret clearance,” Rosenberg reports, “such as members of the intelligence community and specially cleared guards and lawyers, will be allowed inside the new chamber.” Observers, including the family members of victims, will have to watch by video feed.

Fifteen years ago, when plans for the current courtroom were introduced, the ACLU asked senators to block funds for the building of the courthouse, arguing that “there is no need for an elaborate, permanent courthouse complex at Guantánamo Bay… Even President Bush has expressed his interest in substantially reducing the number of detainees at Guantánamo Bay and eventually closing it.” It’s remarkable how little progress has been made since then.

What former commander Bob Buehn discovered so long ago as a lack of appetite for trials of any kind has evolved over time into a “trial” system of endless delays that only help perpetuate the worst of Guantánamo, while eternally extending the life of that now globally notorious prison camp.

As Lee Wolosky, who served as President Obama’s special envoy for closure of Guantánamo, wrote on the occasion of the 20th anniversary of that prison: “In large part, the Guantánamo mess is self-inflicted — a result of our own decisions to engage in torture, hold detainees indefinitely without charge, set up dysfunctional military commissions, and attempt to avoid oversight by the federal courts… [I]t is past time,” he concluded, “to retire this relic of the forever wars.”

The country would do well to heed his words once and for all and so avoid a 30th anniversary of an American institution that has so violated the norms of justice, decency, and the rule of law.

Copyright 2022 Karen J. Greenberg

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer’s new dystopian novel, Songlands (the final one in his Splinterlands series), Beverly Gologorsky’s novel Every Body Has a Story, and Tom Engelhardt’s A Nation Unmade by War, as well as Alfred McCoy’s In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower’s The Violent American Century: War and Terror Since World War II.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author of the newly published Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press). Julia Tedesco helped with research for this piece.

How the forever war will continue — even after the Afghanistan disaster

It ended in chaos and disaster. Kabul has fallen and Joe Biden is being blamed (by congressional Republicans in particular) for America's now almost-20-year disaster in Afghanistan. But is the war on terror itself over? Apparently not.

It seems like centuries ago, but do you remember when, in May 2003, President George W. Bush declared "Mission accomplished" as he spoke proudly of his invasion of Iraq? Three months later, Attorney General John Ashcroft proclaimed, "We are winning the war on terror." Despite such declarations and the "corners" endlessly turned as America's military commanders announced impending successes year after year in places like Afghanistan and Iraq, the war on terror, abroad and on the home front, has been never-ending, as the now-codified term "forever wars" suggests.

By 2011, following the death of Osama bin Laden, President Barack Obama admitted that the killing of the head of al-Qaeda would not bring that war to a close. In May 2011, he informed the nation that bin Laden's "death does not mark the end of our effort" as "the cause of securing our country is not complete." As President Biden signals his intention to bring the war on terror as we know it to an end, the question is: What will remain of it both abroad and at home, no matter what he tries to do?

The Pivot Abroad

As the 20th anniversary of the 9/11 attacks looms, the Biden administration is making it crystal clear that it intends to finally bring the most obvious aspects of that war to a close, no matter the consequences. "It is time," Biden, the fourth war-on-terror president, said in April, "to end the Forever War." Although mired in controversy, turmoil, and bloodshed, the withdrawal of American troops from Afghanistan did indeed take place, even if several thousand were then sent back to Kabul Airport to guard the panicky removal of the vast American embassy staff and others from that city. That was, as the administration announced, only a temporary measure as Taliban troops entered the Afghan capital and took over the government there.

Eighteen years after the invasion of Iraq, a shifting definition of the role of the 2,500 or so U.S. troops still stationed there is also underway and should be complete by the end of the year. Instead of more combat missions, the American role will now be logistics and advisory support.

Putting a fine point on both the Afghan withdrawal and the Iraqi change of direction, many in Congress have acknowledged the need to remove the authorizations passed so long ago for those forever wars. In June, the House of Representatives voted to repeal the 2002 Authorization for the Use of Force (AUMF) in Iraq that paved the way for the invasion of that country. And this month, the Senate Foreign Relations Committee followed suit — 18 years after George W. Bush deposed Iraqi autocrat Saddam Hussein and disaster followed.

The removal of that 2002 AUMF remains, of course, painfully overdue. After all, it has been used through these many years to cover this country's disastrous occupation of and attempts at "nation-building" in Iraq. Eventually, during Donald Trump's last year in office, it was even cited to authorize the drone assassination of a top Iranian general at Baghdad International Airport. Like so many war-on-terror policies, once put in place, successive administrations showed no urge to let that AUMF go. In that way, what had once been a regime-change directive (based on a set of lies about weapons of mass destruction in Saddam Hussein's Iraq) morphed into a long-term nation-building scheme, without any new congressional authorizations at all.

Plans are also now on the table for the repeal of the even more impactful 2001 AUMF, passed by Congress one week after 9/11. Like the Iraq War authorization, its use has been expanded in ways well beyond its original intent — namely, the rooting out of Osama bin Laden and al-Qaeda in Afghanistan. Under the 2001 AUMF's auspices, in the last nearly two decades, the United States has conducted military operations in ever more countries across the Greater Middle East and Africa. But in Congress, what's now being discussed is not just repealing that act, but replacing it altogether.

Traditionally, when a war ends, there's a resolution, perhaps codified in a treaty or an agreement of some sort acknowledging victory or defeat, and a nod to the peace that will follow. Not so with this war.

However unsuccessful, the war on terror, experts tell us, will instead continue. The only difference: it won't be called a war anymore. Instead, there will be a variety of militarized counterterrorism efforts around the globe. With or without the moniker of "war," the U.S. remains at war in numerous places, only recently, for instance, launching airstrikes on Somalia to counter the terrorist group al-Shabaab.

In Africa, Syria, and Indonesia, experts warn, the continued spread of ISIS, the reinvigoration of al-Qaeda, and the persistence of groups like Jemaah Islamiyah demand a continued American military counterterrorism effort. All of this was, in a strange way, foreseeable in the drafting of the 2001 AUMF in which no enemy was actually named, nor were temporal or geographical limits or conditions laid down for the resolution of the conflict to come. As the war on terror's spread to country after country has demonstrated, once unleashed, such a war paradigm takes on a life of its own.

After 20 years of various kinds of failure in which the goals of the war on terror were never truly attained, the U.S. military, the intelligence community, and the Biden administration are now focused elsewhere. According to the latest government threat assessment issued in April by the Director of National Intelligence (DNI), terrorism is far from the most serious threat the nation faces today. As Emily Harding of the Center for Strategic and International Studies sums it up, reflecting on the DNI's report, the intelligence community's priorities "are shifting… from a focus on counterterrorism to addressing near-peer competitors."

"The United States is transitioning," Harding explains, "from mostly low-tech, low-resourced adversaries (e.g., the Islamic State, al-Qaeda, and their subsidiaries) to a focus on great power competition, in particular with China and Russia, both of whom have invested in sophisticated technical tools and are armed with robust conventional and nuclear forces."

Still, however much the Biden administration may be pivoting to a new cold war with China in particular, just how long such a pivot lasts remains an open question, especially given the recent Afghan disaster. And despite the coming 20th anniversary of 9/11, no matter what Congress does or doesn't rescind when it comes to those AUMFs, the U.S. forever war with terrorism will persist, even if, for a while, the threat of Islamic terrorism takes a back seat to other potential dangers in official Washington.

The Pivot at Home

On the home front, there's a similarly disturbing persistence when it comes to the war on terror. Like that set of conflicts abroad, counterterrorism efforts against Islamist terrorists at home have given way to other issues. Mirroring the reduced importance of international terrorism in the report of the director of national intelligence, for instance, Attorney General Merrick Garland recently highlighted a domestic shift away from Islamic terrorism in a memorandum to Department of Justice (DOJ) personnel.

Outlining the "broad scope" of the Department's responsibilities, his priorities couldn't have been clearer. His first commitment, he insisted, was to restoring the integrity of the Department, a clear reference to the DOJ's rejection of independence from the White House during the Trump years. Meanwhile, he explained, the Justice Department will focus on its primary mission — protecting Americans "from environmental degradation and the abuse of market power, from fraud and corruption, from violent crime and cyber-crime, and from drug trafficking and child exploitation." Only as a seeming afterthought did he add, "And it must do all of this without ever taking its eye off of the risk of another devastating attack by foreign terrorists."

But his words hid a more subtle reality. Much of the domestic architecture created in the name of the war on terror persists at home as well as abroad. At its height, the counterterrorism movement at home involved an expansive and aggressive use of law enforcement and intelligence tools that readily — often with the assent of Congress and the courts — tossed aside constitutional protections and reinterpreted laws in ways that privileged American security over rights.

Passed in October 2001, the Patriot Act, for example, downgraded Fourth Amendment protections, enabling law enforcement to conduct mass warrantless surveillance on Americans. Muslims as a group — rather than based on individual suspicion — were detained without charge, targeted in stings and terror investigations, and threatened with imprisonment at Guantanamo Bay.

During President Obama's term in office, some of these measures were revised for the better in the Freedom Act. Meant to replace the Patriot Act, while leaving many broad authorities in place, it banned the bulk intelligence collection of American telephone records and Internet metadata. For the most part, however, law enforcement's counterterrorism powers, created to defeat al-Qaeda, have remained robust and are there for use against others.

The Department of Homeland Security (DHS), created in the wake of 9/11, has also turned its attention elsewhere. Almost from its inception, the agency used the powers granted to it in the name of counterterrorism in other ways entirely. It soon turned its attention to dealing with drug crimes, the control of the border, and immigration matters, all outside the realm of post-9/11 terrorist threats.

Under President Trump, in particular, DHS (by then, remarkably enough, the country's largest law enforcement agency) refocused its resources on matters that had little or nothing to do with counterterrorism. During the Black Lives Matter protests in the summer of 2020, for instance, its officials deployed helicopters, drones, and other forms of group surveillance to monitor protests and, in Portland, Oregon, even to quell them with force. In other words, the agency built for counterterrorism had, by then, become whatever a president wanted it to be.

A Call for Review

The future of such powers and policies at home and abroad is now in a strange kind of limbo. Addressing the Trump administration's misuse of the Department of Justice, for instance, Attorney General Garland did indeed signal his intent to limit any use of it for political purposes. In the process, he issued a clear directive against any possible White House politicization of the department. But not a mention has yet been made of authorizing a much-needed thorough review of the powers the DOJ gained in the forever-war years in the name of counterterrorism.

When it comes to the Department of Homeland Security, the path to reform is even less clear as, in its repurposed mission, counterterrorism aimed at foreign groups may be among the least of its tasks. As a recent report from the Center for American Progress points out "What America needs from DHS today… is different from when it was founded… [W]e need a DHS that prioritizes the rule of law, and one that protects all Americans as well as everyone who comes to live, study, work, travel, and seek safety here."

In fact, in these years, both at home and abroad, counterterrorism agencies and the military were granted vast new powers. While they may now all be pivoting elsewhere in the name of new threats, they are certainly not focused on limiting those powers in any significant way.

And yet such limits couldn't be more important. It would, in fact, be wise for this country to pause, review the uses of the post-9/11 powers granted to such domestic institutions, and revise the policies that allowed for their seemingly endless expansion at home and abroad in the name of the war on terror. It would be no less wise to place more confidence in the country's ability to keep itself safe by embracing its foundational principles. At home, that would mean honoring fairness and restraint in the application of the law, while insisting on limits to the use of force abroad.

If only.

At present, it looks as if those forever wars have created a new form of forever law, forever policy, forever power, and a forever-changed America. And count on one thing: if changes aren't made, we in this country will find ourselves living forever in the shadow of those forever wars.

Copyright 2021 Karen J. Greenberg

Featured image: iraq by The U.S. Army is licensed under CC BY 2.0 / Flickr

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer's new dystopian novel, Songlands (the final one in his Splinterlands series), Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author of the newly published Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press). Julia Tedesco helped with research for this piece.

The Biden era is on course to repeat one of Obama's greatest mistakes

America has an accountability problem. In fact, if the Covid-19 disaster, the January 6th Capitol attack, and the Trump years are any indication, the American lexicon has essentially dispensed with the term "accountability."

This should come as no surprise. After all, there's nothing particularly new about this. In the Bush years, those who created a system of indefinite offshore detention at Guantánamo Bay, Cuba, those who implemented a CIA global torture program and the National Security Agency's warrantless surveillance policy, not to mention those who purposely took us to war based on lies about nonexistent Iraqi weapons of mass destruction, were neither dismissed, sanctioned, nor punished in any way for obvious violations of the law. Nor has Congress passed significant legislation of any kind to ensure that all-encompassing abuses like these will not happen again.

Now, early in the Biden era, any determination to hold American officials responsible for such past wrongdoing, even the president who helped launch an assault on the Capitol, seems little more than a fantasy. It may be something to discuss, rail against, or even make promises about, but not actually reckon with — not if you're either a deeply divided Congress or a Department of Justice that has compromised itself repeatedly in recent years. Under other circumstances, of course, those would be the two primary institutions with the power to pursue genuine accountability in any meaningful way for extreme and potentially illegal government acts.

Today, if thought about at all, accountability — whether in the form of punishment for misdeeds or meaningful reform — has been reduced to a talking point. With that in mind, let's take a moment to consider the Biden administration's approach to accountability so far.

How We Got Here

Even before Donald Trump entered the Oval Office, the country was already genuinely averse to accountability. When President Obama took office in January 2009, he faced the legacy of the George W. Bush administration's egregious disregard for laws and norms in its extralegal post-9/11 war on terror. From day one of his presidency, Obama made clear that he found his predecessor's policies unacceptable by both acknowledging and denouncing those crimes. But he insisted that they belonged to the past.

Fearing that the pursuit of punishment would involve potentially ugly encounters with former officials and would seem like political retribution in a country increasingly divided and on edge, he clearly decided that it wouldn't be worth the effort. Ultimately, as he said about "interrogations, detentions, and so forth," it was best for the nation to "look forward, as opposed to looking backward."

True to the president's word, the Obama administration refused to hold former officials responsible for violations of fundamental constitutional and legal issues. Among those who escaped retrospective accountability were Vice President Dick Cheney, who orchestrated the invasion of Saddam Hussein's Iraq based on lies; the lawyer in the Justice Department's Office of Legal Counsel, John Yoo, who, in his infamous "Torture Memos," justified the "enhanced interrogation" of war-on-terror prisoners; and Secretary of Defense Donald Rumsfeld, who created a Bermuda triangle of injustice at Guantánamo Bay, Cuba. In terms of reform, Obama did ensure a degree of meaningful change, including decreeing an official end to the CIA torture of prisoners of war. But too much of what had happened remained unaddressed and lay in wait for abuse at the hands of some irresponsible future president.

As a result, many of the sins that were at the heart of the never-ending response to the 9/11 attacks have become largely forgotten history, leaving many potential crimes unaddressed. And even more sadly, the legacy of accountability's demise only continues. Biden and his team entered office facing a brand-new list of irregularities and abuses by high-ranking officials, including President Trump.

In this case, the main events demanding accountability had occurred on the domestic front. The January 6th insurrection, the egregious mishandling of the pandemic, the interference in the 2020 presidential election, and the use of the Department of Justice for political ends all awaited investigation after inauguration day. At the outset, the new government dutifully promised that some form of accountability would indeed be forthcoming. On January 15th, House Speaker Nancy Pelosi announced that she planned to convene an independent commission to thoroughly investigate the Capitol riots, later pledging to look into the "facts and causes" of that assault on Congress.

Attorney General nominee Merrick Garland similarly promised, "If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6th." Meanwhile, signaling some appetite for holding his predecessor accountable, during the presidential campaign, Joe Biden had already ruled out the possibility of extending a pardon to Donald Trump. In that way, he ensured that, were he elected, numerous court cases against the president and his Trump Organization would be open to prosecution — even as Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, recently suggested, reviving of the obstruction of justice charges that had been central to the Mueller investigation of the 2016 presidential election.

Reluctance in the Halls of Accountability

Six months after Joe Biden took office, there has been no firm movement toward accountability by his administration. On the question of making Donald Trump and his allies answer for their misdeeds, the appetite of this administration so far seems wanting, notably, for example, when it comes to the role the president may have played in instigating the Capitol attack. Sadly, Pelosi's call for an independent commission to investigate that insurrectionary moment passed the House, but fell victim last month to the threat of a filibuster and was blocked in the Senate. (Last week, largely along party lines, the House passed a select committee to investigate the insurrection.)

Trump's disastrous mishandling of the pandemic, potentially responsible for staggering numbers of American deaths, similarly seems to have fallen into the territory of unaccountability. The partisan divisions of Congress continue to stall a Covid-19 investigation. National security expert and journalist Peter Bergen, for instance, called for a commission to address the irresponsible way the highest levels of government dealt with the pandemic, but the idea failed to gain traction. Instead, the focus has turned to the question of whether or not there was malfeasance at a Chinese government lab in Wuhan.

It matters not at all that numerous journalists, including Lawrence Wright, Michael Lewis, and Nicholson Baker, have impressively documented the mishandling of the pandemic here. Such disastrous acts included early denials of the lethality of the disease, the disavowal of pandemic preparedness plans, the dismantling of the very government office meant to respond to pandemics, the presidential promotion of quack cures, a disregard for wearing masks early on, and so much else, all of which contributed to a generally chaotic governmental response, which ultimately cost tens of thousands of lives.

In truth, a congressional investigation into either the Capitol riots or the Trump administration's mishandling of the pandemic might never have led to actual punitive accountability. After all, the 9/11 Commission, touted as the gold standard for such investigations, did nothing of the sort. While offering a reputable history of the terrorist threat that resulted in the attacks of September 11, 2001, and a full-scale summary of government missteps and lapses that led up to that moment, the 9/11 report did not take on the mission of pointing fingers and demanding accountability.

In a recent interview with former New York Times reporter Philip Shenon, whose 2008 book The Commission punctured that group's otherwise stellar reputation, Just Security editor Ryan Goodman offered this observation: "[An] important lesson from your book is the conscious tradeoff that the 9/11 Commission members made in prioritizing having a unanimous final report which sacrificed their ability to promote the interests of accountability (such as identifying and naming senior government officials whose acts or omissions were responsible for lapses in U.S. national security before the attack)."

Shenon added that the tradeoff between accountability and unanimity was acknowledged by commission staff members frustrated by the absence of what they thought should have been the report's "most important and controversial" conclusions. In other words, when it came to accountability, the 9/11 Report proved an inadequate model at best. Still, even its version of truth-telling proved too much for congressional Republicans facing a similar commission on the events of January 6th.

Note, however, that the 9/11 Commission did lead to movement along another path of accountability: reform. In its wake came certain structural changes, including a bolstering of the interagency process for sharing information and the creation of the Office of the Director of National Intelligence.

No such luck today. And signs of the difficulty of facing any kind of accountability are now evident inside the Department of Justice (DOJ), too. Despite initial rhetoric to the contrary from Attorney General Merrick Garland, the department has shown little appetite for redress when it comes to those formerly in the highest posts. And that reality should bring to mind the similar reluctance of Barack Obama, the president who originally nominated Garland unsuccessfully to the Supreme Court.

For anyone keeping a scorecard of DOJ actions regarding Trump-era excesses, the record is slim indeed. While the department did, at least, abandon any possible prosecution of former National Security Advisor John Bolton for supposedly disclosing classified information in his memoir on his time in the Trump administration, Garland also announced that he would not pursue several matters that could have brought to light information about President Trump's abuse of power.

In May, for instance, the department appealed a court-ordered call for the release of the full version of a previously heavily redacted DOJ memo advising then-Attorney General Bill Barr that the evidence in the Mueller Report was "not sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes." In fact, the Mueller Report did not exonerate Trump, as Mueller himself would later testify in Congress and as hundreds of federal prosecutors would argue in a letter written in the wake of the report's publication, saying, "Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller's report would… result in multiple felony charges for obstruction of justice."

Adding fuel to the fire of disappointment, Garland pulled back from directly assessing fault lines inside the Department of Justice when it came to its independence from partisan politics. Instead, he turned over to the DOJ inspector general any further investigation into Trump's politicization of the department.

The Path Forward — or Not?

These are all discouraging signs, yet there's still time to strengthen our faltering democracy by reinstating the idea that abuses of power and violations of the law — from inside the White House, no less — are not to be tolerated. Even without an independent commission looking into January 6th or the DOJ prosecuting anyone, some accountability should still be possible. (After all, it was a New York State court that recently suspended Rudy Giuliani's license to practice law.)

On June 24th, Nancy Pelosi announced at a news conference that a select Congressional committee, even if not an independent 9/11-style commission, would look into the Capitol attack. That committee, she added, will "establish the truth of that day and ensure that an attack of that kind cannot happen and that we root out the causes of it all." True, she didn't specify whether accountability and reform would be part of that committee's responsibilities, but neither goal is off the table.

And Pelosi's fallback plan to convene a House select committee could still have an impact. After all, remember the Watergate committee in the Nixon era. It, too, was a select committee and it launched an investigation into abuses of power in the Watergate affair that helped bring about President Nixon's resignation from office and helped spark or support court cases against many of his partners in crime. Similarly, the 1975 Church Commission investigation into the abuses of the intelligence community, among them the FBI's notorious counter-intelligence program, COINTELPRO, was also a select committee project. It led to significant barriers against future abuses — including a ban on assassinations and a host of "good government" bills.

Pelosi rightly insists that she's intent on pursuing an investigation into the Capitol attack. Adam Schiff and Jerry Nadler are similarly determined to investigate the government seizure of Internet communications. Local court cases against Trump, Giuliani, and others will, it appears, continue apace.

Through such efforts, perhaps the potentially shocking facts could see the light of day. Continuing such quests may lead to anything but perfect accountability, particularly in a country growing ever more partisan. Above and beyond the immediate importance of giving the public — and history — a reliable narrative of recent events, it's important to let Americans know that accountability is still a crucial part of our democracy as are the laws and norms accountability aims to protect. Otherwise, this country will have to face a new reality: that we are now living in the age of impunity.

Copyright 2021 Karen J. Greenberg

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer's new dystopian novel, Songlands (the final one in his Splinterlands series), Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author of the forthcoming Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton University Press, August). Julia Tedesco helped with research for this piece.

Three ways for Biden to finally begin an end of the War on Terror

In the first two months of Joe Biden's presidency, you could feel the country holding its breath. Sheltered in place, hidden behind masks, unsure about whether to trust in a safe-from-pandemic future, we are nonetheless beginning to open our eyes collectively. As part of this reemergence, a wider array of issues — those beyond Covid-19 — are once again starting to enter public consciousness. Domestically, attempts to repress (or preserve) voting rights have been consuming activists and dominating headlines, along with this country's missing infrastructure and a need to raise the minimum wage. The foreign affairs agenda isn't far behind. From rising great-power rivalries, notably with China and Russia, to cyberattacks like the Solarwinds hack that affected agencies across the government, to the question of whether American troops will leave Afghanistan, a growing number of issues loom for the administration, Congress, and the public in the months to come.

On the domestic front, the response to the new administration (and especially its $1.9 trillion Covid-19 relief bill) has been a collective sigh of relief — as well as much praise, as well as fierce partisan Republican attacks — when it comes to the reform agenda being put in place domestically. In the realm of foreign affairs, however, criticism has been swift and harsh, owing to several early administration actions.

On February 25, at the president's order, the U.S. launched an airstrike against an Iranian-backed militia in Syria, killing 22. On February 26, the administration released an intelligence report pointing the finger at Saudi Crown Prince Mohammed bin Salman for the murder of Washington Post columnist Jamal Khashoggi, only to follow up with an announcement that, while there would be sanctions against individuals close to the prince, no retaliation against him would follow. New York Times columnist Nicholas Kristof called the absence of strong retribution against MBS akin to letting "the murderer walk," setting an example for other "thuggish dictators" in the years to come.

Meanwhile, there is still, at best, indecision about whether or not the U.S. will pull its last troops out of Afghanistan by the May 1st deadline set during the Trump administration as part of a deal with the Taliban. President Biden recently termed meeting that date "tough." Others have called hesitancy about the May 1st deadline a step towards an escalation in violence and "even more deaths" in a nearly 20-year-old "unwinnable war." November has now been floated by the Biden administration as a more "reasonable" deadline.

While each of these acts (or the lack of them) should be scrutinized in light of the lessons of the past, a rush to condemn could prove too quick to be helpful. Yes, it would have been more satisfying if the administration had said, "We will respond in our own time and in our own way," when it came to the murder of Khashoggi. Yes, it would have been good to see a full-scale new drone policy in place prior to any future strikes. It will, however, take some time for the new administration to sort out the issues involved, to unearth what promises, deals, and threats were imposed by predecessors and to assess the meaningfulness of plans for a new agenda. My own suggestion: Why not set an agenda of expectations and goals — a list of imperatives if you will — and then check back in a relatively short time, perhaps six months from the January 20th inauguration of President Biden, to assess what's truly developed?

Given our chaotic and troubled world, the list of must-dos is already long indeed, but here's my own personal list of three, all tied to an issue I've followed closely for nearly the last two decades: the war on terror and how to end it.

Three Ways to Begin to End the War on Terror

The Biden administration has offered up its own list of priorities and challenges. Setting out its national security agenda, the president has committed his administration "to engage with the world once again, not to meet yesterday's challenges, but today's and tomorrow's." In a new strategy paper, "Renewing America's Advantages: Interim National Security Strategic Guidance," his administration has made its priorities reasonably clear: the development of a multidimensional strategy, led by diplomacy and multilateralism (though not averse to the "disciplined" use of force if necessary) with an overriding commitment to strengthening democracy at home and abroad.

Among the priorities set out in that strategy is one that should — if carried out successfully — be a relief to us all: moving beyond the global war on terror. "The United States should not, and will not, engage in 'forever wars' that have cost thousands of lives and trillions of dollars," the paper states, pointing to ending "America's longest war in Afghanistan," as well as the war in Yemen, and helping to end Africa's "deadliest conflicts and prevent the onset of new ones."These war-on-terror-related goals are not only upbeat but distinctly achievable, if kept at the forefront of the American foreign-policy agenda. To achieve them, however, the institutional remnants of the war on terror would have to be eradicated. And at the top of any list when it comes to that are the lingering war powers granted the president; the authority to commit "targeted killings" via drones in more and more places around the globe; and the existence of that symbol of injustice, the prison established by the Bush administration in 2002 at Guantánamo Bay, Cuba. Eliminating such foundational war-on-terror policies is essential, if we are to move into an era in which national security exists in tandem with the rule of law and adherence to constitutional norms.

So here, on those three issues, are the basics for my six-month check-backs in late June 2021.

The AUMFs

As far as I'm concerned, the first six-month marker for the Biden administration should be the repeal of the 2001 and 2002 congressional Authorizations for the Use of Military Force (AUMFs) that granted the president the right to continue to pursue conflicts in the name of the war against terror without further recourse to Congress. Three presidents over the last nearly 20 years relied in ever-expanding ways on just that supposed authority to expand the war on terror any way they saw fit.

The first of those AUMFs, passed in Congress with a staggering unanimity (lacking only the brave "no" vote of California Representative Barbara Lee just days after September 11, 2001), authorized the president 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." The second authorized the president to use force "as he determines to be necessary and appropriate" to counter the (supposed) threat posed by Iraq to the "national security of the United States" and "to enforce all relevant United Nations Security Council resolutions regarding Iraq," a reference to weapons of mass destruction monitoring and compliance. Both AUMFs provided a basis for future unilateral war-making decisions that excluded Congress and, as such, superseded its constitutional authorization to declare war.

Those two AUMFs, the first aimed at al-Qaeda, the second at Saddam Hussein's Iraq, have ever since been stretched to provide the president with the power to wage wars and engage in other military interventions across much of the Greater Middle East and increasing parts of Africa — and to focus on targets far removed from the perpetrators of 9/11. The 2001 AUMF has been used to justify military engagements and drone strikes in Pakistan, Somalia, Syria, and Yemen among other places. And Donald Trump referred in part to the 2002 AUMF to justify the drone assassination of Iranian general Qasem Soleimani at Baghdad International Airport in January 2020.

"Woefully outdated," those AUMFs have provided what one critic recently called "a blank check to wage war on virtually anyone at the president's discretion." In 2013, President Obama acknowledged that ever-expansive first AUMF and expressed his desire to engage

"Congress and the American people in efforts to refine, and ultimately repeal, the AUMF's mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That's what history advises. That's what our democracy demands."

Conversely, in May, 2020, Trump vetoed a bill forbidding him to take action against Iran without first obtaining Congressional approval. In sum, neither president stopped using those congressional authorizations.

Repeatedly, since 2001, Representative Barbara Lee and others in Congress have called for the repeal of the 2001 AUMF to no avail. In March 2019, Senators Tim Kaine and Todd Young introduced a bipartisan plan to repeal the 2002 AUMF on the grounds that Iraq was no longer an enemy. Lee led a parallel move in the House which voted to repeal the act. Nothing further happened, however.

"It makes no sense that two AUMFs remain in place against a country that is now a close ally. They serve no operational purpose, run the risk of future abuse by the president, and help keep our nation at permanent war," Kaine said. Given the increasing U.S. attacks in Iraq on Iranian-backed militias, this might prove an uphill battle, but it's nonetheless an important one. Kaine and Young have recently reintroduced legislation to repeal the 2002 authorization. Although for Biden's strike in Syria against Iranian-backed militias, the supposed powers of the commander-in-chief were cited rather than the 2002 AUMF, the worry is that, if tensions continue to escalate between Washington and Tehran, it will be cited in future attacks, however unrelated to its original intent.

On March 5th (two days after Kaine and Young introduced their plan), the White House announced through Press Secretary Jen Psaki that it would itself seek to "replace" the two authorizations "with a narrow and specific framework." In a further gesture towards a more constrained use of force, Biden reportedly cancelled a second strike in Syria after finding out that civilian casualties might result.

First Six-Month Check-Back: The repeal of those endlessly expansive authorizations is a must and should be a top priority for the Biden administration. Any new AUMFs should include consultations with Congress before any attacks are launched on potential foreign enemies, should limit exactly who those enemies might be, and specify both a time frame and the geographical reach of any authorization.

Targeted Killings

Under President Obama, drone warfare — the use of remotely piloted aircraft (RPAs) to target individuals and groups — became a signature tool in Washington's war on terror arsenal. Such "precision" strikes (chosen in "Terror Tuesday" meetings at the White House in the Obama years) were justified because they would reputedly reduce American deaths and, over time, battlefield deaths generally, including the "collateral damage" of civilian casualties. Obama used such drone strikes expansively, even targeting U.S. citizens abroad.

In his second term, Obama did try to put some limits and restrictions on lethal strikes by RPAs, establishing procedures and criteria for them and limiting the grounds for their use. President Trump promptly watered down those stricter guidelines, while expanding the number of drone strikes launched from Afghanistan to Somalia, soon dwarfing Obama's numbers. According to the British-based Bureau for Investigative Journalism, Obama carried out a total of 1,878 drone strikes in his eight years in office. In his first two years as president, Trump launched 2,243 drone strikes. When it came to civilian casualties, at first the Trump administration merely ignored a mandated policy from the Obama era whereby a yearly report on civilian drone strike casualties had to be produced and made public. Then, in March 2019, Trump simply cancelled the requirement, consigning the drone killing program to an even deeper kind of secrecy.

On the subject of drones, in the first weeks of the Biden administration, there have been some potentially encouraging signs. His appointees have signaled an intention to revamp and limit drone policy. On Inauguration Day 2021, National Security Advisor Jake Sullivan issued an order announcing the administration's intention to review the use of RPAs for targeted-killing missions outside of war zones. While the review takes place, some of the Trump-era freedom of the CIA and the military to decide on drone targets on their own was suspended. According to reporting by Charlie Savage and Eric Schmitt of the New York Times, "The military and the CIA must now obtain White House permission to attack terrorism suspects in poorly governed places where there are scant American ground troops, like Somalia and Yemen."

Second Six-Month Check-Back: The Biden administration minimally needs to revise its use of drones for targeted killings of any sort, anywhere, so that they become a rarity, not the commonplace they've been. The president must further insist on transparency in reporting on the uses of drone warfare and its casualties. He and his key officials must create a policy in accordance with both domestic and international law.

Guantánamo

Last (but very much not least) on my list, it's time to close the Guantánamo Bay detention facility. This past January was the 19th anniversary of its opening, the moment when the first prisoners from the war on terror were flown to Cuba, offshore from American justice and away from the eyes of the world. In 2008, while George W. Bush was still president, Gitmo received its last inmates. Twelve years ago, Barack Obama pledged to close it within a year.

When Obama left office in January 2017, he had at least made some headway towards its closure, though failing ultimately to shut it down. Gitmo's population had been reduced from 197 prisoners to 41, thanks to the efforts of the Office of the Special Envoy for the closure of Guantánamo, which Obama had set up in 2013, and to its head, Lee Wolosky. He aggressively pursued the mission of transferring detainees out of that facility during the final 18 months of Obama's presidency. One-third of the remaining prisoners were facing charges from, or had already been convicted by, the military commissions that Obama revived in 2009 and that made remarkably little headway towards trials, no less resolutions, during his two terms.

On the campaign trail in 2016, Trump infamously pontificated that he would "load [Gitmo] up with some bad dudes." In actuality, no new detainees would be transferred to the facility during his time in office. Meanwhile, military commission prosecutors proved unable even to mount what should have been the centerpiece case of the Guantánamo years — the trial of the five men, including Khalid Sheikh Mohammed, accused of being co-conspirators in the 9/11 attacks.

As with the AUMFs and the drone-strike policy, there are, in the early moments of the Biden years, some encouraging signs that closure could once again become a priority. Secretary of Defense Lloyd Austin, for instance, expressed his thoughts on the subject in questions submitted to the Senate Armed Services Committee during his confirmation hearings. "It is time," he wrote, "that the detention facility at Guantánamo Bay close its doors." Similarly, Dr. Colin Kahl, Biden's nominee for undersecretary for policy at the Pentagon, told Congress, "I believe that it is time to close the DoD detention facility at Guantánamo Bay responsibly." President Biden has also signaled his support for closure, claiming that he wants it shut by the end of his presidency. And there has already been an announcement that the National Security Council is looking into plans to do so.

Meanwhile, after years of delays, reversals, governmental misdeeds, and the dark shadow cast over cases in which torture has been an integral part of the evidentiary record, some movement does seem to be underway. The day after Biden's inauguration, for instance, the administration set the date for a trial that has been stalled for years — that of three Southeast Asian men accused of bombings in Indonesia in 2002 and 2003. All three have been in U.S. custody since 2003, first at CIA "black sites" and, from 2006 on, at Guantánamo. However, as of February 2nd, the date for that trial had already been postponed, due to Covid-19.

Third Six-Month Check-Back: It's imperative that the Biden administration shut down Guantánamo — and the sooner the better. The catastrophic cost of that detention facility is hard to overestimate. It continues to stain the American reputation for fairness and justice worldwide and is the ultimate reminder of the trade-off made between security and liberty in the war on terror. Until Guantánamo closes, the door to detention without due process and so to an alternative judicial system outside the law, as well as to unlawful secret interrogations and brutal treatment remains open. And after all these years, six months should be more than long enough to at least put in motion, if not complete, plans for that closure.

It's one thing to have good intentions, and quite another to realize those intentions in policy. While I understand the concerns of the early critics of Biden's developing war-on-terror-related decisions, my own preference is for a modicum of patience — though nothing like an open-ended time frame. After all, it's way beyond time to consign those war on terror deviations from law and from anything like reasonable norms of action to the history books.

Copyright 2021 Karen J. Greenberg

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer's new dystopian novel Frostlands (the second in the Splinterlands series), Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and the author of Rogue Justice: The Making of the National Security State, and the forthcoming Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton, 2021). Julia Tedesco provided research for this article along with Jonathan Alegria and Matthew Ruane.

Donald Trump and the American descent toward failed-state status

These past few months, it's grown ever harder to recognize life in America. Thanks to Covid-19, basic day-to-day existence has changed in complicated, often confusing ways. Just putting food on the table has become a challenge for many. Getting doctors' appointments and medical care can take months. Many schools are offering on-line only instruction and good luck trying to get a driver's license or a passport renewed in person or setting up an interview for Social Security benefits. The backlog of appointments is daunting.

Meanwhile, where actual in-person government services are on tap, websites warn you of long lines and advise those with appointments to bring an umbrella, a chair, and something to eat and drink, as the Department of Motor Vehicles in Hudson, New York, instructed me to do over the summer. According to a September 2020 Yelp report, approximately 164,000 businesses have closed nationwide due to the pandemic, an estimated 60% of them for good. CNBC reports that 7.5 million businesses may still be at risk of closing. Meanwhile, more than 225,000 Americans have died of the coronavirus and, as a winter spike begins, it's estimated that up to 410,000 could be dead by year's end.

Then there are the signs of increasing poverty. Food banks have seen vast rises in demand, according to Feeding America, a network of 200 food banks and 60,000 food pantries and meal programs. According to a study done by Columbia University's Center on Poverty and Social Policy, between February and September, the monthly poverty rate increased from 15% to 16.7%, despite cash infusions from Congress's CARES Act. That report also concluded that the CARES program, while putting a lid on the rise in the monthly poverty rate for a time, "was not successful at preventing a rise in deep poverty." And now, of course, Congress seems likely to offer nothing else.

The rate of unemployment is down from a high of 14% in April, but still twice what it was in January 2020 and seemingly stabilizing at a disturbing 8%. Meanwhile, schools and universities are struggling to stay viable. Thirty-four percent of universities are now online and only 4% are conducting fully in-person classes. The policy of stores limiting purchases in the spring and summer is still a fresh memory.

And what about freedom of movement? Dozens of countries, including most of the European Union, Latin America, Japan, Australia, and New Zealand, have barred entry to American tourists and travelers, given this country's devastatingly high rate of infection. Canada and Mexico just re-upped their bans on U.S. travelers, too. In a sense, the pandemic has indeed helped build a "great, great wall" around America, one that won't let any of us out.

In fact, Americans are not being welcomed, even by one another. Inside our borders, states are requiring those arriving from other states with high percentages of Covid-19 cases to quarantine themselves for 14 days on arrival (though enforcing such mandates is difficult indeed). New York Governor Andrew Cuomo's list of places subject to such a travel advisory now includes 43 of the 49 other states.

And as we are reminded on a daily basis in the run-up to Election Day, early voters, especially in heavily minority districts, are being forced to wait long hours in endless lines in states where the pandemic is beginning to spike. In some places, local officials clearly set up the conditions for this as a deterrent to those they would prefer not to see at the polls. In Georgia, where a governor was intent on reducing the numbers of polling places to reduce turnout in African-American neighborhoods, the waiting time recently was up to 11 hours. Early voting lines in New York City "stretched for blocks" in multiple venues.

To top it all off, political and racial violence in the country is climbing, often thanks to uniformed law enforcement officers. From George Floyd's death to federal officials in unmarked vehicles dragging protesters off the streets of Portland, Oregon, to federal law enforcement officers using rubber bullets and tear gas on a gathering crowd of protestors to clear a path to a local church for President Trump, such cases have made the headlines. Meanwhile, officials across the country are ominously preparing to counter violence on Election Day

In the face of such challenges and deprivations, Americans, for the most part, are learning to adapt to the consequences of the pandemic, while just hoping that someday it will pass, that someday things will return to normal. As early as March 2020, a Pew poll had already detected a significant uptick in symptoms of anxiety nationwide. The percentage of such individuals had doubled, with young people and those experiencing financial difficulties driving the rise.

The American Psychological Association (APA) considers the pandemic not just an epidemiological but a "psychological crisis." The website of the Centers for Disease Control and Prevention has a paper written by two APA authors suggesting that Covid-19 is already taking "a tremendous psychological toll" on the country.

Failing, American-Style

All in all, we find ourselves in a daunting new world, but don't just blame it on the pandemic. This country was living in a state of denial before Covid-19 hit. The truth is that Americans have been in trouble for a surprisingly long time. The pandemic might have swept away that sense of denial and left us facing a new American reality, as that virus exposed previously ignored vulnerabilities for all to see.

So, expect one thing: that the indicators of America's decline will far surpass the problems that can be solved by addressing the pandemic's spread. When Covid-19 is brought under some control, the larger social system may unfortunately remain in tatters, in need of life support, posing new challenges for the country as a whole.

Several observers, witnessing such potentially long-lasting changes to the fabric of American life, have described the United States as resembling a failed state in its reaction to the pandemic. They point not just to the effects of staggering levels of inequality (on the rise for decades) or to a long-term unwillingness to invest in the kind of infrastructure that could keep what's still the wealthiest country on our planet strong, but to entrenched poverty and the fracturing of work life. Long before the pandemic hit, the Trump administration reflected this downhill slope.

As George Packer recently wrote in the Atlantic, the reaction to the coronavirus crisis here has been more "like Pakistan or Belarus -- like a country with shoddy infrastructure and a dysfunctional government whose leaders were too corrupt or stupid to head off mass suffering... Every morning in the endless month of March," he added, "Americans woke up to find themselves citizens of a failed state," unable to get the equipment, supplies, tests, or medical help they needed to fight the pandemic.

Looking beyond Covid-19 to the Trump administration's irresponsible handling of climate change and nuclear weapons, TomDispatch's Tom Engelhardt has also labeled the country a "failed state," one that now occupies a singular category (which he called "Fourth World") among the planet's countries.

There is no codified definition of a failed state, but there is general agreement that such a country has become unable or unwilling to care for its citizens. Safety and sustenance are at risk and stability in multiple sectors of life has become unpredictable. In 2003, future U.N. Ambassador Susan Rice attempted to craft a workable definition of the term in a report for the Brookings Institution, calling on President George W. Bush to address the underlying causes of failed states. "Failed states," she wrote, "are countries in which the central government does not exert effective control over, nor is it able to deliver vital services to significant parts of its own territory due to conflict, ineffective governance, or state collapse."

From the Proud Boys to the Wolverine Watchmen, it has become strikingly clear that, in this pandemic year, the U.S. is indeed becoming an increasingly riven, disturbed land and that nothing, including the election of Joe Biden, will simply make that reality disappear without immense effort.

In the twenty-first century, in fact, the United States has visibly been inching ever closer to failed-state status. In 2006, the Fund for Peace, an organization whose mission is global conflict reduction, human security, and economic development, launched a yearly Failed States Index (FSI), changing its name in 2014 to the Fragile State Index. For the last decade, for instance, Yemen has been among the top 10 most fragile states and, for the last two years, number one. Since 2013, Finland has been at the other end of the scale, number 178, the least failed state on the planet.

What's interesting, however, is the path the United States has travelled over that same decade, dropping a noteworthy 10 places. Until the Trump years, it consistently stood at number 158 or 159 among the 178 nations on the chart. In the 2018 report, however, it took a turn for the worse. In the 2020 report (based on pre-pandemic numbers), it had dropped to 149, reflecting in particular losses in what FSI calls "cohesion," based on rising nationalist rhetoric among increasingly riven elites and unequal access to resources in a country where economic inequality was already at staggering levels.

Just imagine, then, what the 2021 Index will likely report next April. At present, when it comes to FSI's rankings, the United States is in the third of five groupings of countries, behind the Scandinavian countries, most of the other nations of Europe, and Singapore. Given today's realities, it is poised to fall even further.

The Election Moment

Elections are a crucial factor in separating successful from failing states; fair elections, that is, ones that people in a country trust. As Pauline Baker, the director of the Fund for Peace, points out, "Elections are an essential part of democratization, but they can also be conflict-inducing if they are held too soon, are blatantly manipulated, lack transparency, or are marred by violence."

All you have to do is think about Donald Trump's endless claims -- that this year's election will be "rigged," that mail-in ballots will be a fraud, that he won't necessarily leave office even if the tallies are against him, and so on -- to know that a particularly heavy burden has been placed on the results of November 3rd. Add to that burden threats to the election's viability via disinformation from foreign agents and hackers, Republican Party attempts at voter suppression, and threats of violence by so-called poll watchers.

Meanwhile, an embattled Supreme Court has been issuing decisions on matters like "faithless electors," extended voting, and absentee ballots. The record so far has been mixed at best. On the one hand, the justices have voted to keep intact the Electoral College rule that requires electors to honor their pledges to vote according to whatever the voters have decided. They also nixed an attempt by the Republican National Committee to enforce a Rhode Island rule that mail-in voters, under pandemic conditions, must have their ballots signed by either two witnesses or a notary public. And most recently, the Court voted 4-4 to uphold Pennsylvania's decision to extend the absentee ballot deadline.

For the most part, however, its decisions have gone the other way, upholding more restrictive voting policies in 8 out of 11 cases. In July, for example, the court ruled against a decision in Alabama that had eased restrictions on absentee ballot submissions. That same week, it refused to reinstate an order in Texas allowing all voters to cast mail-in ballots due to the pandemic. Meanwhile, it seems that Pennsylvania Republicans are again trying to narrow the time frame on absentee ballots, announcing that they have returned to the Court for a further decision on the matter in light of Justice Amy Barrett's certain confirmation.

The point is, this election should matter, both the form it takes and its outcome. If trust in the process of voting goes by the wayside, then the image of the United States as a failing, even a failed state will be hard to dispute. And if there is violence at the polls, or after the vote takes place, then we'll sense an even deeper failure.

While some may view the coming election as a precipitous cliff, with dangers lurking everywhere, I also see it as an opportunity, which is why the tsunami of early voting, often involving hours of waiting, is an encouraging sign. Despite the abyss that we face after four years of chaos and cruelty, this country still has a chance to prove that we are not a failing state and to reclaim our trust in our government, our protections, and one another. Only then will we be able to begin to repair the economic damage, the rank divisiveness, and the unequal allocation of resources that has fueled our disastrous pandemic response and, with it, a further erosion of trust in government.

Maybe we need to accept the challenge of proving in this election that one of the world's longest-standing democracies can rise to the occasion and vote to uphold the foundation of its system, elections themselves. Maybe, using this very election, we can harness the civic pride that could lead to a successful restoration of our basic beliefs in constitutional principles and the rule of law. The chance to vote, no matter how long the lines and the wait, might be just the opportunity we need.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law, the host of the Vital Interests Podcast, the editor-in-chief of the CNS Soufan Group Morning Brief, and the author of Rogue Justice: The Making of the Security State and editor of Reimagining the National Security State: Liberalism on the Brink. Julia Tedesco helped with research for this article.

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer's new dystopian novel (the second in the Splinterlands series) Frostlands, Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.

Copyright 2020 Karen J. Greenberg

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Since the spring of 2004, the government has been making public previously classified documents nearly weekly, often in response to Freedom of Information Act law suits (though the numbers of newly classified documents are increasing at a rate that more than nullifies any sense of transparency such releases might suggest). Many of these memos have been about torture -- whether to use it; how to use it; and, most of all, how to protect government agents and agencies against prosecution for using it. Among these documents have been memos from the Judge Advocate General's Corps (or JAG), written by military lawyers from the Army, Air Force, Navy, and Marines, and these constitute a welcome oasis of sanity in a desert of compliance with the government's decision to use torture as a weapon in its "war on terror."

First brought to public attention in Senate debate on July 25, 2005, these JAG memos have seen the light thanks to a request from Republican Senator Lindsey Graham. They were written in February 2003 as recommendations to a Pentagon working group on "interrogation policy." Collectively, they express a clear opposition to the use of the sorts of harsh interrogation techniques that White House lawyers had not only recommended but declared legally viable. Indeed, by August of 2002, lawyers for the administration had infamously suggested, as a basis for reducing legal culpability for the mistreatment of detainees, that the definition of torture itself be narrowed to include only ""[p]hysical pain ...equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The JAG memos, on the other hand, warned that abusive interrogation techniques -- contrary to the advice administration lawyers were generating - might well be found illegal in courts of law: As one put it, "Our domestic courts may well disagree with [the administration's lawyers'] interpretation of the law." The courts, the JAG memos warned, might find that the use of torture, however redefined by the administration, violated not just international law, but domestic criminal law and the laws of the Uniform Code of Military Justice as well.

These memos have earned praise from critics of the Bush administration and its war on terror, who have been pleased to discover strong organizational resistance to administration policy within the military. But the terms of the disagreement have been little explored. It's not just the fact of the dissent that is noteworthy, but its nature; for these documents provide us with something other than the usual notes of protest against torture that critics of the administration are wont to express. The JAG criticism is not so much moral as strategic. What the JAG lawyers suggest -- and it is a position no less significant today than when it was shaped in 2003 -- is that a policy of torture is sure to constitute a fatal flaw in any war against jihadi terror.

Prior to the release of these JAG memos, what opposition to torture we knew about within the administration almost invariably stood upon a concern for rights and legality. Secretary of State Colin Powell, William Taft IV, the Legal Advisor to the Department of State, and others reasoned, without much success, against policies which could lay the groundwork for abusive treatment. They cited the possible illegality of such acts under domestic law; the importance of maintaining the high moral ground as a mark of American national identity; the protection of human rights worldwide; the potentially dangerous repercussions that might come from alienating our allies; and the endangerment of our citizens and our troops in a world in which reciprocity in the decent treatment of prisoners might no longer be honored.

The JAG memos restate these arguments, but they also plunge into new critical territory. In a February 27, 2003 memo summarizing the problems the JAG lawyers had with the Pentagon's working group proposal, for instance, Kevin M. Sandkuhler, Brigadier General for the Marine Corps, wrote the following: "The authorization of aggressive counter-resistance techniques by service members will adversely impact ...Human Intelligence Exploitation and Surrender of Foreign Enemy Forces, and Cooperation and Support of Friendly Nations." Put simply, Sandkuhler was saying that the systematic practice of torture threatened to impede the collection of useful information and so had the potential to deliver a harmful blow to the U.S. war against jihadi terrorism.

If, as both administration officials and their critics agree, information is crucial in preventing terrorist attacks, then the practice of torture needs rethinking on purely strategic grounds. There are two reasons for this. The first, cited commonly by critics as well as in the JAG memos, is simply that, on an individual level, torture is "of questionable practical value in obtaining reliable information." The "ticking bomb" scenario -- you have two hours to foil a plot to blow up part of New York City and a single man with crucial information in your hands -- has yet to find its way into reality (though Fox Broadcasting's show "24" may have convinced the television-watching population otherwise); nor has the government ever made the claim that they have gathered crucial or even valuable, otherwise unknown or unattainable evidence, from the detainees at Guantanamo and Abu Ghraib by such methods. And information obtained through torture is notorious for its unreliability.

Prior to the release of these memos, the second reason has been absent from official documents and most public consideration of the use of torture as policy. As the JAG memos make clear, sooner or later torture seems invariably to become a matter of the public record and, when it does, as with the release of the photos from Abu Ghraib or accounts of torture at Guantanamo, it understandably alienates a rich and unsurpassable source of information -- Muslim communities around the world. As the police in Great Britain and various other European countries will tell you, the apprehension of jihadi terrorists relies heavily not on coercion, but on informants who willingly provide information either for political, ideological, or personal reasons.

Connections to Muslim communities must be based on trust, and such trust is obviously less likely to exist if the threat of detention with torture and without trial is a cornerstone of U.S. policy. It is not a question of Muslims around the world hating Americans, but of Muslims wanting to work with an administration whose policies are built on torture and detention without end or recourse. Underlying any policy of torture in present circumstances, as the writers of the JAG memos recognized even in 2003, is the assumption that it is not worth our while to build real bridges to Muslims (rather than the cosmetic ones envisioned by Karen Hughes, the President's favorite advisor and new undersecretary of state for public diplomacy). As the military lawyers realized two years ago, the Bush administration's recourse to torture policies was a sign that its officials neither trusted, nor put much faith in what once would have been considered basic American values; nor believed our policies to be attractive when compared to the hatred that bonds Islamic fundamentalists together. Just as the JAGs sensed it would, this has proved a losing assumption -- and torture the Achilles heel of administration policy -- based on an exceedingly short-sighted concept of national security.

The inverse relationship between success in fighting terrorist enemies and the practice of torture has yet to be sufficiently appreciated either by critics of the administration's torture policy or by counterterrorist policymakers. Those who defend torture policies insist that opposition to torture, the preference for human rights instead of what they see as realpolitik, is but another example of weak-kneed liberals clinging to straws as compatriots are beheaded, of amnesia over the almost 3,000 who died on September 11th, 2001, and of an overall lack of respect for fighting an effective war against enemies who refuse to play by civilized rules. But they are mistaken, as the Sandkuhler memo -- which opposed torture as much on strategic grounds as moral or constitutional ones --- made clear two years ago.

After the bloody, cruel and dehumanizing events of World War Two, General Dwight D. Eisenhower surveyed the plusses and minuses of America's engagement with evil. According to Eisenhower, the fact that the US military was known not to abuse prisoners contributed greatly to hastening the end of the war in the European theater; Nazis were willing to turn themselves in to the Allied forces and brought with them information that played an important role in ending the war.

Washington should take note. If their "war on terror" will indeed last decades, as many administration members and supporters claim, then wouldn't it be better not to shut the door on those Muslims who know that terrorism in the hands of Islamic fundamentalists will harm us all?

The Courts and the War on Terror

On the eve of his departure from office, Attorney General John Ashcroft boasted, "The objective of securing the safety of Americans from crime and terror has been achieved." In this, he echoed a drumbeat of announcements by top officials who have repeatedly proclaimed that, when it came to the war on terror, the administration was succeeding in the courts as well as on the battlefield. As President Bush declared in a speech to the FBI Academy in September 2003, "We've thwarted terrorists in Buffalo and Seattle, in Portland, Detroit, North Carolina and Tampa, Florida."

In fact, looked at with a cold eye, the administration's record of convictions in terrorism cases is remarkably inconsequential. Although it is extremely difficult to obtain reliable information on such cases, the facts, as best we know them, are these: Of the 120 terrorism cases recorded on Findlaw, the major information source for legal cases of note, the initial major charges leveled have resulted in only two actual terrorism convictions – both in a single case, that of Richard Reid, the notorious shoe bomber. Of 18 actual charges of "terrorism" brought between September 2001 and October 2004, 15 are still pending and one was dismissed. In lieu of convictions for terrorist acts, the Justice Department uses another related, lesser charge – that of "material support," which means providing aid or services to a terrorist or a terrorist organization. Its extreme breadth and over-inclusiveness has rendered it the fallback charge of choice and a catch-all for anything from having trained in an al Qaeda camp in Afghanistan back in the 1990s (when al Qaeda's focus was the war in Bosnia and other places outside of the United States) to weapons training, or even the exceedingly modest category of producing fraudulent documents, so long as they are knowingly provided to a designated "foreign terrorist organization."

But what of the six cases of "terrorism convictions," material support or otherwise, that the President himself hailed as the benchmarks of the administration's courtroom success story? As it happens, five resulted from questionable plea bargains, often on lesser charges, not necessarily closely related to terrorism, and one has yet to be tried. Only in the Detroit case has there been an actual conviction for "terrorism," (albeit material support for terrorism), and that case has since been overturned in a manner embarrassing to the Bush administration.

When the plea bargains are considered in their own right, their apparent circumstances should cause the odd eyebrow to be raised. After all, over half of all terrorism cases tried so far have resulted in plea bargains. The Department of Justice (DOJ) alleges that such pleas are offered in exchange for important information in the war on terrorism and spokespersons at the DOJ invariably maintain that, as in criminal cases generally, these have yielded invaluable information. Yet despite the implementation of the Patriot Act and the re-organization of our law enforcement efforts to fight terrorism, the yield seems neither better, nor worse than that which existed prior to 9/11.

Let's just consider the five already tried cases that the President cited. In most of them, the evidence seems to show that the use of plea bargains had a good deal less to do with getting crucial "terror" information than with getting convictions on the books in situations where a conviction at trial might have proved difficult indeed. In the Buffalo case, the defendants – known as the Lackawanna Six – were initially accused of belonging to an "al Qaeda sleeper cell," but instead ended up pleading to material support charges.

What's especially interesting here, however, is the way in which some of those plea bargains seem to have been achieved. According to defense attorneys, the defendants were threatened with the prospect of being classified as "unlawful combatants," the new Bush-administration-defined status which entails imprisonment without end as well as the loss of the right to a lawyer and to communicate with anyone in the outside world. Nor did these appear to be idle threats. There were frightful precedents. The administration had seen no reason for restraint, for example, when, in 2002, it labeled Jose Padilla and Yasser Esam Hamdi, both American citizens, as "enemy combatants" and placed them in military detention and (so far) beyond the reach of the law. (Just last week, U.S. District Judge Henry Floyd ruled that the Department of Justice has 45 days to charge Padilla, jailed in the spring of 2002, or release him.)

Although we have no way of knowing how many domestic suspects have been threatened with enemy-combatant status and so with the possibility of being placed indefinitely in a black hole of detention, several defense attorneys have gone on record with similar stories in which the DOJ used warnings about potential enemy-combatant status as leverage for obtaining cooperation in a plea. Allegedly responding to such threats, Lyman Faris, who was accused in 2003 of threatening to blow up the Brooklyn Bridge, pled guilty to immigration fraud. Days later, Ali Saleh Kahlah al-Marri, who had been arrested in 2001 on charges of document fraud, refused to plea bargain, virtually daring authorities to reclassify him as an enemy combatant. He was, in fact, then placed in military custody without access to a lawyer, where he remains today, a potent symbol for any defendant or defense lawyer who cares to look.

The use of such "leverage" – itself completely outside the normal justice system – would at any other moment have qualified as an obvious kind of extra-legal coercion. While plea bargains are certainly useful tools with which prosecutors can obtain information, the question needs to be asked: If there is coercion, can whatever information is obtained be trusted? Or are we here facing a very pale version of the more directly coercive and illegal methods used against alleged terrorists at our detention centers in Guantanamo and other places not on American soil?

Of note also is the failure of DOJ prosecutors to tie many of these cases directly to terrorism. In the Portland case, for instance, seven men were arrested on material support charges. Two of the men, Patrice Lumumba Ford and Jeffrey Leon Battle, were the main focus of the government's indictments. "Evidence" came largely from secret FISA (Foreign Intelligence Surveillance Act) warrants. FISA and its secret courts were originally designed to regulate the FBI's spying by distinguishing between counterintelligence operations and persecution of the government's political opponents.

The Patriot Act and post-9/11 court decisions have, in effect, eliminated the requirement that FISA surveillance – wiretapping, searches, and otherwise – be primarily for intelligence-gathering as opposed to criminal investigatory purposes. By jettisoning that standard, Congress and the courts now permit the government to avoid the strictures of the Fourth Amendment and ordinary wiretap statutes by simply declaring anything, no matter how flimsy or marginal, is for intelligence purposes. Indeed, under the new standards, FISA warrants have mushroomed at an alarming rate; and the public sees only the tip of the iceberg, since FISA warrants and their fruits never see the light of day unless they are used in a criminal prosecution – which represent only an infinitesimal fraction of the total number of FISA wiretaps and searches.

Nonetheless, government prosecutors, evidently worried that new post-9/11 Bush administration rules extending FISA requests to terrorism cases might sooner or later be challenged as unconstitutional, again offered plea bargains. The defendants agreed. Terrorism-related charges against Battle and Ford were dropped and each was sentenced not to life for "terrorism," but to 18 years for "treason"; the other five defendants pled on lesser charges. Despite the convictions, the administration failed, as it had failed in the Lackawanna case, to link the accused directly to a terrorist conspiracy.

The Detroit case, hailed at one point as the ultimate showpiece in the legal war on terror, now stands as the greatest rebuke to the Bush administration's prosecution of alleged domestic terrorists. In June 2003, four Arab men were convicted of providing material support for terrorism and of conspiring to engage in fraud or the misuse of visas, permits, and other documents. Their conviction was, however, overturned in July 2004, on the grounds that the prosecution had blatantly withheld exculpatory evidence from the defense – in this case, a videotape and photos. Though the government is currently once again trying to prosecute two of the defendants, it is doing so on the lesser charge of "insurance fraud."

The kinds of mistakes prosecutors have made in cases billed as important to national security may or may not have been intentionally fraudulent, but they certainly suggest signs of administration frustration with the very idea of using the courts to combat terror. How regularly, we should ask, are prosecutors rushing into court without solid cases, pressured to get results in a manner similar to the way the Pentagon pressured the military to obtain information from detainees in Guantanamo and Abu Ghraib? Has a fear of being accused of incompetence in the war on terror merely led to more incompetence?

In only one of the President's cases, as far as we know, did significant information come from the plea bargaining process. In the Seattle case, James Earnest Thompson, who goes by the name Earnest James Ujaama, was alleged to have attended al Qaeda training camps and indicted on charges of conspiring to set up an al Qaeda terrorist training camp in Oregon. In the end, he pleaded guilty on the lesser charges of bringing money, computer equipment, and a recruit to the Taliban. His plea was entered in exchange for his cooperation in terrorism investigations. In particular, he is alleged to have given evidence on al-Masri, a terrorism suspect being held in British custody.

Overall, despite all the hype, the Department of Justice's record in terrorism cases is unimpressive indeed and even that record now faces a new hurdle – if information, however paltry, has been gained from suspects by illegal coercion or, in the case of suspects held abroad, through torture, it may prove inadmissible in future court cases against other suspects. This will be yet another setback in the legal confrontation with terrorism.

Perhaps this paltry and flawed record can be explained by the administration's well known lack of belief in the importance of law enforcement in the war on terror. As Bush suggested in his last State of the Union Address, and other top officials have emphasized elsewhere, the war on terror is not supposed to be about law enforcement at all but about the use of force, about taking the fight to the terrorists by whatever means are necessary outside the United States. Another reasonable conclusion might be that, for all the color-coded alerts we've lived through, there just aren't that many terrorists among us – at least not al Qaeda related ones.

Terrorists do indeed exist who would like to do great damage to the United States, but convictions like those in the President's cases are generally less than helpful in the defense against them. If anything, they lull Americans into a false sense of security, into a sense that important terrorists are indeed being convicted and jailed for crimes or plans of significance. In the meantime, most of these cases represent, at best, sloppy prosecutions; at worst, fraudulent ones. In all of them, there is a powerful sense of apparent desperation and hype, of prosecutors flailing about as if there were nothing more important than simply declaring, "Yes, we have found sleeper cells; yes, there is danger in our midst; yes, we are winning this war in the homeland."

The fact is that the political expediency of the war on terror has undermined the strategy of an effective pursuit of terrorists. The rush to prosecution, the pressure to get convictions, even the holding of detainees without charging them, speaks more to politics than to justice, more to appearances than substance. It is time for the courts to assert their professionalism, to prosecute alleged terrorists carefully, without a rush to judgment, and in so doing to help the legal war on terror take its rightful place in the annals of American jurisprudence.

37 Questions for Donald Rumsfeld

The "torture memos," as they have come to be known, reveal much about the current administration. They point to a level of secrecy matching, or even surpassing, any sought or achieved by the executive branch in prior eras, even during wartime. They point to a lack of concern for accountability that veers far from previously acknowledged limits on unchecked executive power. They deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the United States since its inception. Essentially, much of what has been put in place by the Bush administration in the wake of 9/11 has relied on the fear of terror as a means to establish a new doctrine of state; it is a doctrine that, before the attacks on the World Trade Center and the Pentagon, had lingered in the outer corridors of power. Much of the Patriot Act, for instance, had already been drafted before 9/11; and the proposal for the Department of Homeland Security was also in draft form at that time. So, too, were plans for a war in Iraq.

The torture memos developed inside the White House by a task force of lawyers headed by presidential confidant and White House Legal Counsel Alberto Gonzales are important, and not just as evidence of a policy that disregards human rights and reciprocity in the treatment of soldiers, civilians, and prisoners. The torture memos are also – perhaps primarily – important because they reveal the most basic attitudes with which the administration greets the Congress, the courts, the American public, and the world at large.

One of the chief figures in turning legal questions on torture into policy in the matter of the treatment of prisoners has been Secretary of Defense Donald Rumsfeld, who oversaw the approval of harsh interrogation methods in 2002 and who became the personally responsible party for approving or disapproving the use of coercive interrogation and "category three" torture after the spring of 2003. It seems only apt and fitting, then, that he, as well as Alberto Gonzales, be brought before Congress and asked questions about this policy and his role in it.

Based on a careful reading of the hundreds of pages of "torture memos" that poured out of the White House, the thousands of pages of military reports, investigations, and original documents that have emerged from Abu Ghraib prison in Iraq, as well as the flood of recent FBI e-mails and prisoner complaints that have emerged from Guantanamo prison in Cuba, we might – as a lawyer and an historian who have been working in this area for the last two years – suggest the following series of questions for Congress:

1. Does torture work? Given the detailed attention shown in the White House memos to describing three levels of interrogation (from questioning to physical abuse) to be applied in the war on terror, is there an underlying assumption that torture in fact really works? That it is more effective than ordinary means of questioning prisoners? And, if so, what does it work to produce? Have you considered whether it is a means of venting frustration or a means of obtaining reliable information? Is there clinical, verifiable evidence that torture produces better information more quickly and more accurately than other methods of interrogation? Did your discussions of torture involve consulting experts in Israel, the United Kingdom, Egypt, and elsewhere? If so, what did those sources have to say in recommending torture? Or was the administration convinced of the efficacy of torture before it began drawing up its legal documents?

2. Assuming, for a moment, that torture is indeed effective, what is the difference between this conflict, and these detainees, and previous conflicts and prisoners? After all, the rationale that torture is necessary to save lives, if true, applies to any war. Surely the torture of German and Japanese soldiers – particularly officers – in World War II could have yielded information that might have "saved lives." Wouldn't this then apply no less to U.S. soldiers and officers – either in or, as in the case of Special Forces troops, out of uniform – captured by the enemy? Indeed, why would it not apply to any situation in which lives are in the balance: cigarette manufacturers, polluters, ordinary criminals? Wouldn't torturing them for information "save lives"?

3. Why was one of the first tasks of your administration finding a place – Guantanamo Bay – that was meant to be beyond the reach of the courts? Do you fear review by the courts? Why do you dismiss the role of the courts and ordinary law enforcement in eliciting information from prisoners in the war on terror? Isn't it possible that the art of interrogation, practiced by law enforcement officers and professional lawyers, might in fact elicit more important and more accurate information in assessing the motives, networks, and plans of terrorists than, say, dogs at Guantanamo Bay or waterboarding in some CIA holding area? What exactly was it you felt it was so important to keep secret from the courts?

4. In the war on terror, do you see the Department of Justice as essentially an adjunct of the Department of Defense? Is there an expectation that what the Pentagon deems necessary in the war on terror and the war in Iraq will simply be justified after the fact by the Justice Department? What is your response to observers who have noted that the lawyers in the White House's Office of Legal Counsel acted more like corporate lawyers than protectors of the U.S. Constitution; that they followed the corporate model of providing arguments and justifications for their superiors – in this case, justifying secrecy, torture, and the disregard of the Geneva Conventions – rather than approaching them objectively and independently as matters of legal inquiry?

5. Do you think that terrorists and alleged terrorists deserve to be tortured as a form of punishment? In a Nov. 27, 2002 memo on acceptable interrogation methods, you personally handwrote the following comment: "I stand for 8-10 hours a day. Why is standing [as a counter-resistance technique] limited to 4 hours?" Is there a sense that the prisoners in Guantanamo, though not yet tried, let alone convicted, deserve the punitive treatment they receive, including acts that may be outlawed internationally and in domestic law? Do you consider them, by virtue of their potential association with terrorists, to deserve fewer rights than others?

6. Can you address the timing of the development of a Bush administration torture policy and your decision to step away so quickly from the Geneva Conventions to which we are signatories? Why, as early as the fall of 2001, before you even had prisoners who might have been available for torture, was the Administration so willing to consider torture as a practice? Had such a policy been privately discussed prior to Sept. 11 and already deemed necessary to the security of the United States, and if so, what was the rationale for considering such a policy? What was your basis for concluding that traditional methods consistent with international law were a failure?

7. Why have you not consulted Congress on the question of torture? What role, if any, do you think Congress should play in overseeing either the treatment of military prisoners or the military commissions you are planning to set up to try them? In the August 2002 memo from the Office of Legal Counsel, Congress, it was claimed, did not have the power to prohibit torture if the president, acting as Commander in Chief, deemed it necessary – do you still agree with this, as Alberto Gonzales seems to, given his recent Senate testimony? Do you really think that, in times of war, the president has the power to do whatever he wants?

8. Why did the complaints from detainees like David Hicks and the Tipton Three, NGOs, the International Red Cross, military whistleblowers and other governments regarding the mistreatment of detainees fall on deaf ears for so long? The recently released FBI memoranda, and the recently unsealed court filings by Guantanamo detainees establish the existence of torture, abuse, and mistreatment beyond any doubt. Why did Pentagon investigations (of which there have now been so many) not uncover this abuse, and why didn't the investigators pay any attention to the claims made by knowledgeable outside parties?

9. If Alberto Gonzales were not facing confirmation hearings, would the government's position on torture have been revised, as it was just before he testified? Who or what precipitated the administration to suddenly change its definition of torture? How long has such a change been in the works? Who was responsible for that change, and who was involved in crafting the new definition(s)?


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