Karen Greenberg

Leaders want us to 'look forward' — never backwards — on Afghanistan. Without accountability, that’s impossible

The anniversary of the 9/11 attacks was marked by days of remembrances — for the courageous rescue workers of that moment, for the thousands murdered as the Twin Towers collapsed, for those who died in the Pentagon, or in Shanksville, Pennsylvania, fighting off the hijackers of the commercial jet they were in, as well as for those who fought in the forever wars that were America's response to those al-Qaeda attacks.

For some, the memory of that horrific day included headshaking over the mistakes this country made in responding to it, mistakes we live with to this moment.

Among the more prominent heads being shaken over the wrongdoing that followed 9/11, and the failure to correct any of it, was that of Jane Harman, a Democrat from California, who was then in the House of Representatives. She would join all but one member of Congress — fellow California representative Barbara Lee — in voting for the remarkably vague Authorization for the Use of Force, or AUMF, which paved the way for the invasion of Afghanistan and so much else. It would, in fact, put Congress in cold storage from then on, allowing the president to bypass it in deciding for years to come whom to attack and where, as long as he justified whatever he did by alluding to a distinctly imprecise term: terrorism. So, too, Harman would vote for the Patriot Act, which would later be used to put in place massive warrantless surveillance policies, and then, a year later, for the Bush administration's invasion of Iraq (based on the lie that Iraqi ruler Saddam Hussein possessed weapons of mass destruction).

But on the occasion of the 20th anniversary of the attacks, Harman offered a different message, one that couldn't have been more appropriate or, generally speaking, rarer in this country — a message laced through and through with regret. "[W]e went beyond the carefully tailored use of military force authorized by Congress," she wrote remorsefully, referring to that 2001 authorization to use force against al-Qaeda and Osama bin Laden. So, too, Harman railed against the decision, based on "cherry-picked intelligence," to go to war in Iraq; the eternal use of drone strikes in the forever wars; as well as the creation of an offshore prison of injustice at Guantanamo Bay, Cuba, and of CIA black sites around the world meant for the torture of prisoners from the war on terror. The upshot, she concluded, was to create "more enemies than we destroyed."

Such regrets and even apologies, while scarce, have not been utterly unknown in post-9/11-era Washington. In March 2004, for example, Richard Clarke, the counterterrorism chief for the Bush White House, would publicly apologize to the American people for the administration's failure to stop the 9/11 attacks. "Your government failed you," the former official told Congress and then proceeded to criticize the decision to go to war in Iraq as well. Similarly, after years of staunchly defending the Iraq War, Senator John McCain would, in 2018, finally term it "a mistake, a very serious one," adding, "I have to accept my share of the blame for it." A year later, a PEW poll would find that a majority of veterans regretted their service in Afghanistan and Iraq, feeling that both wars were "not worth fighting."

Recently, some more minor players in the post-9/11 era have apologized in unique ways for the roles they played. For instance, Terry Albury, an FBI agent, would be convicted under the Espionage Act for leaking documents to the media, exposing the bureau's policies of racial and religious profiling, as well as the staggering range of surveillance measures it conducted in the name of the war on terror. Sent to prison for four years, Albury recently completed his sentence. As Janet Reitman reported in the New York Times Magazine, feelings of guilt over the "human cost" of what he was involved in led to his act of revelation. It was, in other words, an apology in action.

As was the similar act of Daniel Hale, a former National Security Agency analyst who had worked at Bagram Air Base in Afghanistan helping to identify human targets for drone attacks. He would receive a 45-month sentence under the Espionage Act for his leaks — documents he had obtained on such strikes while working as a private contractor after his government service.

As Hale would explain, he acted out of a feeling of intense remorse. In his sentencing statement, he described watching "through a computer monitor when a sudden, terrifying flurry of Hellfire missiles came crashing down, splattering purple-colored crystal guts." His version of an apology-in-action came from his regret that he had continued on at his post even after witnessing the horrors of those endless killings, often of civilians. "Nevertheless, in spite of my better instinct, I continued to follow orders." Eventually, a drone attack on a woman and her two daughters led him over the brink. "How could I possibly continue to believe that I am a good person, deserving of my life and the right to pursue happiness" was the way he put it and so he leaked his apology and is now serving his time.

"We Were Wrong, Plain and Simple"

Outside of government and the national security state, there have been others who struck a chord of atonement as well. On the 20th anniversary of 9/11, for instance, Jameel Jaffer, once Deputy Legal Director of the ACLU and now head of the Knight First Amendment Institute, took "the opportunity to look inward." With some remorse, he reflected on the choices human-rights organizations had made in campaigning against the abuse and torture of war-on-terror prisoners.

Jaffer argued that their emphasis should have been less on the degradation of American "traditions and values" and more on the costs in terms of human suffering, on the "experience of the individuals harmed." In taking up the cases of individuals whose civil liberties had often been egregiously violated in the name of the war on terror, the ACLU revealed much about the damage to their clients. Still, the desire to have done even more clearly haunts Jaffer. Concluding that we "substituted a debate about abstractions for a debate about prisoners' specific experiences," Jaffer asks, "[I]s it possible" that the chosen course of the NGOs "did something more than just bracket prisoners' human rights — that it might have, even if only in a small way, contributed to their dehumanization as well?"

Jonathan Greenblatt, now head of the Anti-Defamation League (ADL), spoke in a similarly rueful fashion about that organization's decision to oppose plans for a Muslim community center in lower Manhattan, near Ground Zero — a plan that became known popularly as the "Ground Zero Mosque." As the 20th anniversary approached, he said bluntly, "We owe the Muslim community an apology." The intended center fell apart under intense public pressure that Greenblatt feels the ADL contributed to. "[T]hrough deep reflection and conversation with many friends within the Muslim community," he adds, "the real lesson is a simple one: we were wrong, plain and simple." The ADL had recommended that the center be built in a different location. Now, as Greenblatt sees it, an institution that "could have helped to heal our country as we nursed the wounds from the horror of 9/11" never came into being.

The irony here is that while a number of those Americans least responsible for the horrors of the last two decades have directly or indirectly placed a critical lens on their own actions (or lack thereof), the figures truly responsible said not an apologetic word. Instead, there was what Jaffer has called an utter lack of "critical self-reflection" among those who launched, oversaw, commanded, or supported America's forever wars.

Just ask yourself: When have any of the public officials who ensured the excesses of the war on terror reflected publicly on their mistakes or expressed the least sense of regret about them (no less offering actual apologies for them)? Where are the generals whose reflections could help forestall future failed attempts at "nation-building" in countries like Afghanistan, Iraq, Libya, or Somalia? Where are the military contractors whose remorse led them to forsake profits for humanity? Where are any voices of reflection or apology from the military-industrial complex including from the CEOs of the giant weapons makers who raked in fortunes off those two decades of war? Have any of them joined the small chorus of voices reflecting on the wrongs that we've done to ourselves as a nation and to others globally? Not on the recent 9/11 anniversary, that's for sure.

Looking Over Your Shoulder or Into Your Heart?

What we still normally continue to hear instead is little short of a full-throated defense of their actions in overseeing those disastrous wars and other conflicts. To this day, for instance, former Afghan and Iraq War commander David Petraeus speaks of this country's "enormous accomplishments" in Afghanistan and continues to double down on the notion of nation-building. He still insists that, globally speaking, Washington "generally has to lead" due to its "enormous preponderance of military capabilities," including its skill in "advising, assisting, and enabling host nations' forces with the armada of drones we now have, and an unequal[ed] ability to fuse intelligence."

Similarly, Lieutenant General H.R. McMaster, national security advisor to Donald Trump, had a virtual melt down on MSNBC days before the anniversary, railing against what he considered President Biden's mistaken decision to actually withdraw all American forces from Afghanistan. "After we left Iraq," he complained, "al-Qaeda morphed into ISIS, and we had to return." But it didn't seem to cross his mind to question the initial ill-advised and falsely justified decision to invade and occupy that country in the first place.

And none of this is atypical. We have repeatedly seen those who created the disastrous post-9/11 policies defend them no matter what the facts tell us. As a lawyer in the Department of Justice's Office of Legal Counsel, John Yoo, who wrote the infamous memos authorizing the torture of war-on-terror detainees under interrogation, followed up the 2011 killing of Osama bin Laden in Pakistan with a call for President Obama to "restart the interrogation program that helped lead us to bin Laden." As the Senate Torture Report on Interrogation would conclude several years later, the use of such brutal techniques of torture did not in fact lead the U.S. to bin Laden. On the contrary, as NPR has summed it up, "The Senate Intelligence Committee came to the conclusion that those claims are overblown or downright lies."

Among the unrepentant, of course, is George W. Bush, the man in the White House on 9/11 and the president who oversaw the invasions of Afghanistan and Iraq, as well as the securitization of key American institutions and policies. Bush proved defiant on the 20th anniversary. The optics told it all. Speaking to a crowd at Shanksville, Pennsylvania, where that hijacked plane with 40 passengers and four terrorists crashed on 9/11, the former president was flanked by former Vice President Dick Cheney. His Machiavellian oversight of the worst excesses of the war on terror had, in fact, led directly to era-defining abrogations of laws and norms. But no apologies were forthcoming.

Instead, in his speech that day, Bush highlighted in a purely positive fashion the very policies his partnership with Cheney had spawned. "The security measures incorporated into our lives are both sources of comfort and reminders of our vulnerability," he said, giving a quiet nod of approval to policies that, if they were "comforting" in his estimation, also defied the rule of law, constitutional protections, and previously sacrosanct norms limiting presidential power.

Over the course of these 20 years, this country has had to face the hard lesson that accountability for the mistakes, miscalculations, and lawless policies of the war on terror has proven not just elusive, but inconceivable. Typically, for instance, the Senate Torture Report, which documented in 6,000 mostly still-classified pages the brutal treatment of detainees at CIA black sites, did not lead to any officials involved being held accountable. Nor has there been any accountability for going to war based upon that lie about Iraq's supposed weapons of mass destruction.

Instead, for the most part, Washington has decided all these years later to continue in the direction outlined by President Obama during the week leading up to his 2009 inauguration. "I don't believe that anybody is above the law," he said. "On the other hand, I also have a belief that we need to look forward as opposed to looking backwards… I don't want [CIA personnel and others to] suddenly feel like they've got to spend all their time looking over their shoulders and lawyering."

Looking over their shoulders is one thing, looking into their own hearts quite another.

The recent deaths of former Secretary of Defense Donald Rumsfeld, who, among other horrors, supervised the building of Guantanamo and the use of brutal interrogation techniques there and elsewhere and of former CIA General Counsel John Rizzo, who accepted the reasoning of Department of Justice lawyers when it came to authorizing torture for his agency, should remind us of one thing: America's leaders, civilian and military, are unlikely to rethink their actions that were so very wrong in the war on terror. Apologies are seemingly out of the question.

So, we should be thankful for the few figures who courageously breached the divide between self-righteous defensiveness when it came to the erosion of once-hallowed laws and norms and the kind of healing that the passage of time and the opportunity to reflect can yield. Perhaps history, through the stories left behind, will prove more competent when it comes to acknowledging wrongdoing as the best way of looking forward.

America's 'forever prisoners': Biden actually has a chance to close Guantánamo

The Guantánamo conundrum never seems to end.

Twelve years ago, I had other expectations. I envisioned a writing project that I had no doubt would be part of my future: an account of Guantánamo's last 100 days. I expected to narrate in reverse, the episodes in a book I had just published, The Least Worst Place: Guantánamo's First 100 Days, about — well, the title makes it all too obvious — the initial days at that grim offshore prison. They began on January 11, 2002, as the first hooded prisoners of the American war on terror were ushered off a plane at that American military base on the island of Cuba.

Needless to say, I never did write that book. Sadly enough, in the intervening years, there were few signs on the horizon of an imminent closing of that U.S. military prison. Weeks before my book was published in February 2009, President Barack Obama did, in fact, promise to close Guantánamo by the end of his first year in the White House. That hope began to unravel with remarkable speed. By the end of his presidency, his administration had, in fact, managed to release 197 of the prisoners held there without charges — many, including Mohamedou Ould Slahi, the subject of the film The Mauritanian, had also been tortured — but 41 remained, including the five men accused but not yet tried for plotting the 9/11 attacks. Forty remain there to this very day.

Nearly 20 years after it began, the war in Afghanistan that launched this country's Global War on Terror and the indefinite detention of prisoners in that facility offshore of American justice is now actually slated to end. President Biden recently insisted that it is indeed "time to end America's longest war" and announced that all American troops would be withdrawn from that country by September 11th, the 20th anniversary of al-Qaeda's attack on the United States.

It makes sense, of course, that the conclusion of those hostilities would indeed be tied to the closure of the now-notorious Guantánamo Bay detention facility. Unfortunately, for reasons that go back to the very origins of the war on terror, ending the Afghan part of this country's "forever wars" may not presage the release of those "forever prisoners," as New York Times reporter Carol Rosenberg so aptly labeled them years ago.

Biden and Guantánamo

Just as President Biden has a history, dating back to his years as Obama's vice-president, of wanting to curtail the American presence in Afghanistan, so he called years ago for the closure of Guantánamo. As early as June 2005, then-Senator Biden expressed his desire to shut that facility, seeing it as a stain on this country's reputation abroad.

At the time, he proposed that an independent commission take a look at Guantánamo Bay and make recommendations as to its future. "But," he said then, "I think we should end up shutting it down, moving those prisoners. Those that we have reason to keep, keep. And those we don't, let go." Sixteen years later, he has indeed put in motion an interagency review to look into that detention facility's closing. Hopefully, once he receives its report, his administration can indeed begin to shut the notorious island prison down. (And this time, it could even work.)

It's true that, in 2021, the idea of shutting the gates on Guantánamo has garnered some unprecedented mainstream support. As part of his confirmation process, Secretary of Defense Lloyd Austin, for instance, signaled his support for its closure. And Congress, long unwilling to lend a hand, has offered some support as well. On April 16th, 24 Democratic senators signed a letter to the president calling that facility a "symbol of lawlessness and human rights abuses" that "continues to harm U.S. national security" and demanding that it be shut.

As those senators wrote,

"For nearly two decades, the offshore prison has damaged America's reputation, fueled anti-Muslim bigotry, and weakened the United States' ability to counter terrorism and fight for human rights and the rule of law around the world. In addition to the $540 million in wasted taxpayer dollars each year to maintain and operate the facility, the prison also comes at the price of justice for the victims of 9/11 and their families, who are still waiting for trials to begin."

Admittedly, the number of signatories on that letter raises many questions, including why there aren't more (and why there isn't a single Republican among them). Is it just a matter of refusing to give up old habits or does it reflect a lack of desire to address an issue long out of the headlines? Where, for example, was Senate Majority Leader Chuck Schumer's name, not to mention those other 25 missing Democratic senatorial signatures?

And there's another disappointment lurking in its text. While those senators correctly demanded a reversal of the Trump administration's "erroneous and troubling legal positions" regarding the application of international and domestic law to Guantánamo, they failed to expand upon the larger context of that forever nightmare of imprisonment, lawlessness, and cruelty that affected the war-on-terror prisoners at Guantánamo as well as at the CIA's "black sites" around the world.

Still, that stance by those two-dozen senators is significant, since Congress has, in the past, taken such weak positions on closing the prison. As such, it provides some hope for the future.

For the rest of Congress and the rest of us, when thinking about finally putting Guantánamo in the history books, it's important to remember just what a vast deviation it proved to be from the law, justice, and the norms of this society. It's also worth thinking about the American "detainees" there in the context of what normally happens when wars end.

Prisoners of War

Defying custom and law, the American war in Afghanistan broke through norms like a battering ram through a gossamer wall. Guantánamo was created in just that context, a one-of-a-kind institution for this country. Now, so many years later, it's poised to break through yet another norm.

Usually, at the end of hostilities, battlefield detainees are let go. As Geneva Convention III, the law governing the detention and treatment of prisoners of war, asserts: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

That custom of releasing prisoners has, in practice, pertained not only to those held on or near the battlefield but even to those detained far from the conflict. Before the Geneva Conventions were created, the custom of releasing such prisoners was already in place in the United States. Notably, during World War II, the U.S. held 425,000 mostly German prisoners in more than 500 camps in this country. When the war ended, however, they were released and the vast majority of them were returned to their home countries.

When it comes to the closure of Guantánamo, however, we can't count on such an ending. Two war-on-terror realities stand in the way of linking the coming end of hostilities in Afghanistan to the shutting down of that prison. First, the Authorization for the Use of Military Force that Congress passed right after the 9/11 attacks was not geographically defined or limited to the war in Afghanistan. It focused on but was not confined to two groups, the Taliban and al-Qaeda, as well as anyone else who had contributed to the attacks of 9/11. As such, it was used as well to authorize military engagements — and the capture of prisoners — outside Afghanistan. Since 2001, in fact, it has been cited to authorize the use of force in Pakistan, Yemen, Somalia and elsewhere. Of the 780 prisoners held at Guantánamo Bay at one time or another, more than a third came from Afghanistan; the remaining two-thirds were from 48 other countries.

A second potential loophole exists when it comes to the release of prisoners as that war ends. The administration of George W. Bush rejected the very notion that those held at Guantánamo were prisoners of war, no matter how or where they had been captured. As non-state actors, according to that administration, they were exempted from prisoner of war status, which is why they were deliberately labeled "detainees."

Little wonder then that, despite Secretary of Defense Austin's position on Guantánamo, as the New York Times recently reported, Pentagon spokesman John Kirby "argued that there was no direct link between its future and the coming end to what he called the 'mission' in Afghanistan."

In fact, even if that congressional authorization for war and the opening of Guantánamo on which it was based never were solely linked to the conflict in Afghanistan, it's time, almost two decades later, to put an end to that quagmire of a prison camp and the staggering exceptions that it's woven into this country's laws and norms since 2002.

A "Forever Prison"?

The closing of Guantánamo would finally signal an end to the otherwise endless proliferation of exceptions to the laws of war as well as to U.S. domestic and military legal codes. As early as June 2004, Supreme Court Justice Sandra Day O'Connor flagged the possibility that a system of indefinite detention at Guantánamo could create a permanent state of endless legal exceptionalism.

She wrote an opinion that month in a habeas corpus case for the release of a Guantánamo detainee, the dual U.S.-Saudi citizen Yaser Hamdi, warning that the prospect of turning that military prison into a never-ending exception to wartime detention and its laws posed dangers all its own. As she put it, "We understand Congress' grant of authority for the use of 'necessary and appropriate force' to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles." She also acknowledged that, "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that [the] understanding [of release upon the end of hostilities] may unravel. But," she concluded, "that is not the situation we face as of this date."

Sadly enough, 17 years later, it turns out that the detention authority may be poised to outlive the use of force. Guantánamo has become an American institution at the cost of $13 million per prisoner annually. The system of offshore injustice has, by now, become part and parcel of the American system of justice — our very own "forever prison."

The difficulty of closing Guantánamo has shown that once you move outside the laws and norms of this country in a significant way, the return to normalcy becomes ever more problematic — and the longer the exception, the harder such a restoration will be. Remember that, before his presidency was over, George W. Bush went on record acknowledging his preference for closing Guantánamo. Obama made it a goal of his presidency from the outset. Biden, with less fanfare and the lessons of their failures in mind, faces the challenge of finally closing America's forever prison.

With all that in mind, let me offer you a positive twist on this seemingly never-ending situation. I won't be surprised if, in fact, President Biden actually does manage to close Guantánamo. He may not do so as a result of the withdrawal of all American forces from Afghanistan, but because he seems to have a genuine urge to shut the books on the war on terror, or at least the chapter of it initiated on 9/11.

And if he were also to shut down that prison, in the spirit of that letter from the Democratic senators, it would be because of Guantánamo's gross violations of American laws and norms. While the letter did not go so far as to name the larger war-on-terror sins of the past, it did at least draw attention directly to the wrongfulness of indefinite detention as a system created expressly to evade the law — and one that brought ill-repute to the United States globally.

That closure should certainly happen under President Biden. After all, any other course is not only legally unacceptable, but risks perpetuating the idea that this country continues to distrust the principles of law, human rights, and due process – indeed, the very fundamentals of a democratic system.

Copyright 2021 Karen 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 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.

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