Karen Greenberg

Supporting Ukraine 'for as long as it takes': Echoes of the war on terror?

Karen Greenberg, Is There an Off-Ramp from the Latest Forever War?

Thinking about the world of war explored today by TomDispatch regular Karen Greenberg, author most recently of Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump, a line from an old Pete Seeger song came to mind: “When will they ever learn?” It certainly could be applied in a major way to Vladimir Putin, who not only never learned but continues to be oh-so-painfully ignorant when it comes to Ukrainian resistance to his still-escalating war of aggression in that country.

Sadly enough, it could be applied to so many others on this planet as well, including of course government officials in the United States. Consider this: after 20 years of disastrous “forever wars” across the planet, the lesson drawn in Washington? You guessed it: to oversee the sharpest increases in Pentagon spending in decades and a rise in the U.S. national security budget to unprecedented levels — above such spending at the height of the Korean, Vietnam, or Cold Wars. Learn? Not us, it seems.

Or, thinking about the war in Ukraine, consider the latest suggestion from retired four-star U.S. Navy admiral and former NATO Supreme Allied Commander James Stavridis: that the U.S. and its NATO allies should impose a “no-fly zone” over Ukraine. I mean, what a good idea! Why not put the U.S. and NATO into direct fighting contact with the Russian military. How could anything possibly go wrong, taking that approach with the leader who has already threatened (“I’m not bluffing!“) to use tactical nuclear weapons there?

But some of us never learn, do we? I mean, Vladimir Putin’s war in Ukraine is both a nightmare and a crime against humanity, but don’t think we’re the good guys. Not after 20 years of the global war on terror, a disaster without which, by the way, Donald Trump (Make American Great Again!) would never have happened. Yes, Vladimir Putin seems irrationally determined to continue, even escalate, his war in Ukraine, but looking back on our forever wars, isn’t it strange how little this country was open to settling them?

With that in mind, consider with Greenberg what lessons — if either our leaders or the Russian president were rational creatures when it came to such endless wars — might be drawn from America’s Global War on Terror now. Tom

The Ukraine Moment: Lessons from the War on Terror

Ukraine is obviously a powder keg. With each passing day, in fact, the war there poses new threats to the world order. Only recently, Vladimir Putin’s Russia intensified its attacks on civilian targets in that beleaguered land, while threatening to use tactical nuclear weapons and adding Ukraine’s neighbor Belarus to its side on the battlefield. And don’t forget the Russian president’s decision to draft hundreds of thousands of additional civilians into his military, not to speak of the sham referendums he conducted to annex parts of Ukraine and the suspected cyberattack by a pro-Russian group that disrupted airline websites at hubs across the United States.

President Biden has repeatedly pledged not to enter the war. As he wrote in an op-ed in the New York Times last May (and has continued to signal): “So long as the United States or our allies are not attacked, we will not be directly engaged in this conflict, either by sending American troops to fight in Ukraine or by attacking Russian forces.” Washington has instead carved out a cautious but decidedly engaged response to the war there.

So far, that conflict has not posed a threat to this country and the Biden administration has held fast to the president’s commitment not to engage directly in that fight. But the war does continue to escalate, as do the taunts of an increasingly desperate Vladimir Putin. To date, the U.S. has pledged $15.2 billion in military assistance to Ukraine and its neighbors, an investment that has included arms, munitions, equipment, and training. The Biden administration had also imposed sanctions against more than 800 Russians as of June with additional ones announced in late September, while blocking oil and gas imports from that country.

At such a moment of ever-increasing international tension, however, it seems worthwhile to recall what lessons the United States learned (or at least should have learned) from its own wars of this century that fell under the rubric of the Global War on Terror, or GWOT.

Lessons Learned?

We certainly should have learned a great deal about ourselves over the course of the war on terror, the global conflicts that followed al-Qaeda’s devastating attacks of September 11, 2001.

We should have learned, for instance, that once a war starts, as the war on terror did when the administration of George W. Bush decided to invade Afghanistan, it can spread in a remarkable fashion — often without, at least initially, even being noticed — to areas far beyond the original battlefield. In the end, the war on terror would, in its own fashion, spread across the Middle East, South Asia, and Africa, with domestic versions of it lodging in both European countries and the United States in the form of aggressive terrorism prosecutions, anti-Muslim policing efforts, and, during the Trump administration, a “Muslim ban” against those trying to enter the U.S. from many largely Muslim countries.

In the process, we learned, or at least should have learned, that our government was willing to trade rights, liberties, and the law for a grim version of safety and security. The trade-off would, in the end, involve the indefinite detention of individuals (some to this very day) at that offshore prison of injustice, Guantánamo; torturing captives at CIA black sites around the world; launching “signature drone strikes” which regularly made no distinction between civilians and combatants; not to mention the warrentless surveillance that targeted the calls of staggering numbers of Americans. And all of this was done in the name of keeping ourselves safe, even if, in the end, it would help create an America in which ever less, including democracy, seems safe anymore.

Finally, we should have learned that once a major conflict begins, its end can be — to put the matter politely — elusive. In this way, it was no mistake that the war on terror, with us to this day in numerous ways, informally became known as our “forever war,” given the fact that, even today we’re not quite done with it. (U.S. troops are, for instance, still in Iraq and Syria.) According to the Costs of War Project at Brown University, that conflict has cost this country at least $8 trillion — with an additional estimated $2.2-$2.5 trillion needed to care for the veterans of the war between now and 2050.

Given all of this, there are, at least, three lessons to be taken from the war on terror, each sending a strong signal about how to reckon with Russia’s aggression against Ukraine.

Beware Mission Creep

The war on terror was in large part defined by mission creep. What started as an incursion into Afghanistan to rout al-Qaeda and the perpetrators of 9/11 grew exponentially into a global set of conflicts, including a full-scale invasion of Iraq and the use (largely) of air power in Pakistan, Somalia, Yemen, and other countries across Africa and the Middle East. This was all deemed possible thanks to a single joint resolution passed by Congress a week after the attacks of September 11th, the Authorization for the Use of Military Force (AUMF), which included neither geographical areas nor specific adversaries other than those who conspired to bring about (or supported in some fashion) the 9/11 attacks. It was, in other words, so vague as to allow administration after administration to choose its enemies without again consulting Congress. (A separate 2002 authorization would launch the invasion of Iraq.)

The war in Ukraine similarly continues to widen. The 30 nations in NATO are largely lined up alongside that country against Russia. On October 11th, the Group of Seven, or G7, including Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States, pledged “financial, humanitarian, military, diplomatic, and legal support… for as long as it takes.” On that same day, the U.N. met to consider responses to Russia’s escalating missile and drone attacks on Ukrainian cities as well as its claim to have won a referendum supposedly greenlighting its annexation of four Ukrainian regions.

Meanwhile, the U.S. commitment to support Ukraine has grown ever more geographically extensive. As Secretary of State Antony Blinken explained during a visit to Kyiv in September, the American mission encompasses an effort “to bolster the security of Ukraine and 17 of its neighbors; including many of our NATO Allies, as well as other regional security partners potentially at risk of future Russian aggression.” Moreover, the United States has acted on an ever more global scale in its efforts to levy sanctions against Russia’s oligarchs, while warning of retribution (of an undefined sort) against any nation that provides a haven for them, as did China when it allowed a superyacht owned by a Russian oligarch to dock in Hong Kong’s harbor.

When it comes to Ukraine, the imperative of defining and limiting the scope of American involvement — whether in the areas of funding, weapons supplied, training, or even the deployment of U.S. troops near Ukraine or secret operatives in that country — couldn’t (in the light of GWOT) be more important. So far, Biden has at least kept his promise not to send U.S. troops to Ukraine. (In fact, just before the Russian invasion, he actually removed national guardsmen who had been stationed there in the late fall of 2021.)

It is perhaps a sign of restraint that the Biden administration has so publicly specified just what weaponry it’s providing to that country and which other countries it’s offering assistance to in the name of security concerns over the war. And in making decisions about which munitions and armaments to offer, the administration has insisted on deliberation and process rather than quick, ad-hoc acts. Still, as the GWOT taught us, mission creep is a danger and, as Putin’s Russia continues to expand its war in Ukraine, it’s important to keep a watchful eye on our expanding involvement, too.

Honor the Law

Notably, the war has been defined by Russia’s escalating abuses of international law and human rights. To begin with, that country violated international law with its unprovoked invasion, an act of straightforward aggression. Since then, reports of atrocities have mounted. An Independent International Commission of Inquiry on Ukraine issued a report last month to the U.N.’s Commissioner for Human Rights citing the use of explosives in civilian areas; evidence of torture, rape, and brutal executions; and the intentionally cruel treatment of those in custody. The massacre of civilians in the Ukrainian towns of Bucha and Izyum signaled Russia’s intent to continue its gruesome violations of the laws of war despite Ukrainian President Volodymyr Zelensky’s appeal to the U.N. for accountability.

That this is the road to lasting problems and an escalating threat environment is a lesson this country should have learned from its own war on terror in this century. The atrocities carried out by terrorist groups, including 9/11, led top officials in the Bush administration to calculate that, given the threat facing the country, it would be legitimate, even imperative, to ignore both domestic and international legal restraints. The greatest but hardly the only example of this was the willingness of the Central Intelligence Agency to use torture, which it relabeled “enhanced interrogation techniques,” including waterboarding, exposure to extreme cold, sleep deprivation, and painful, prolonged forms of shackling at CIA black sites scattered around the world. That brutal program was finally laid out in 2014 in a nearly 600-page executive summary of a Senate investigation. Other illegal actions taken during the war on terror included setting up Guantánamo offshore of American justice and the Bush administration’s decision to invade Iraq based on a lie: that autocrat Saddam Hussein possessed weapons of mass destruction.

When it comes to Ukraine, the war-on-terror experience should remind us of the importance of restraint and lawfulness, no matter the nature of the Russian threat or the cruel acts Putin has countenanced. “Russian forces were likely responsible for most casualties, but so too Ukrainian troops — albeit to a far lesser extent,” the U.N. commissioner for human rights said in a video message last spring. In August, Amnesty International issued a report which held that “Ukrainian forces have put civilians in harm’s way by establishing bases and operating weapons systems in populated residential areas, including in schools and hospitals.”

Plan for an Ending

Despite Vladimir Putin’s predictions that the war would end quickly with a Russian triumph and despite his continuing escalation of it, there has been no dearth of scenarios for such an ending. Early on, observers saw the possibility of a negotiated peace in which Ukraine would agree not to seek future membership in NATO, while Russia withdrew its troops and dropped its claims to Ukrainian territory (Crimea excepted). Soon thereafter, another scenario forecast “a new iron curtain” after Russian gains in eastern and southern Ukraine left “two antagonistic blocs staring each other down over a lengthy militarized border.” Others have predicted endless further escalation, including a possible Russian tactical nuclear strike in that country causing the West to retreat — or counter with its own nuclear gesture.

Only recently, almost eight months into the war, 66 nations at the U.N. General Assembly called for its end, while even retired American Admiral Mike Mullen, the former chairman of the Joint Chiefs of Staff, told ABC’s George Stephanopoulos, “I think we need to back off [the war] a little bit and do everything we possibly can to try to get to the table to resolve this thing.” Others agree that the conflict should be ended sooner rather than later.

And for good reason! This country’s war on terror should be an apt reminder that planning for an ending is imperative, sooner rather than later. From the beginning, you might say, the forever war had no sense of an ending, since Congress’s authorization for the use of force lacked not only geographical but temporal limits of any sort. There was, in fact, no sense of what an end to hostilities might involve. Not even the killing of Osama bin Laden, the leader of al-Qaeda, in 2011 was seen as ending anything, nor was the death of autocrat Saddam Hussein imagined as a conclusion of that American war. To this day, that 2001 authorization for war remains in place and one of the main symbols of the excesses of the war — Guantánamo Bay — remains open.

Right now, despite any calls by former warriors like Mullen or diplomats for an end to the war in Ukraine, it’s proving a distinctly elusive proposition not just for Vladimir Putin but for the U.S. and its NATO allies as well. As a senior administration official told the Washington Post recently, speaking of Putin’s threat to use nuclear weapons and his draft of new Russian conscripts, “It’s definitely a sign that he’s doubling down, that we’re not close to the end, and not close to negotiations.”

In a speech delivered at the U.N. in late September, Secretary of State Antony Blinken caught the forever-war mood of the moment on all sides by expressing doubts about diplomacy as a cure-all for such a war. “As President Zelensky has said repeatedly,” Blinken told the Security Council, “diplomacy is the only way to end this war. But diplomacy cannot and must not be used as a cudgel to impose on Ukraine a settlement that cuts against the U.N. Charter, or rewards Russia for violating it.”

Given the lessons of the war on terror, casting doubt on the viability of future negotiations risks setting the stage for never-ending warfare of a distinctly unpredictable sort.

The Stakes

Though the war in Ukraine is taking place in a different context than the war on terror, with a different set of interests at stake and without the non-state actors of that American conflict, the reality is that it should have yielded instructive lessons for both sides. After all, America’s forever war harmed the fabric of our political life in ways almost too numerous to name, many of them related to the ever-expansive, extralegal, never-ending nature of that conflict. So imagine what this war could do to Russia, to Ukraine, and to our world.

The war in Ukraine offers Washington an opportunity to push the international community to choose a new scenario rather than one that will expand into a frighteningly unknown future. It gives the Biden administration a chance to choose law over lawlessness and emphasize a diplomatic resolution to that still-escalating crisis.

This time around, the need to exercise restraint, caution, and a deep respect for the law, while envisioning how the hostilities might actually end, could not be more important. The world of our children lies in the balance.

Institutionalism versus democracy: Can the system be saved?

Karen Greenberg, State of Disgrace in Washington

I doubt you’ll be shocked to discover that, in the years of the (first?) Trump era and the now distinctly crippled Biden one, the trust of Americans in our basic institutions and our government has taken a nosedive. According to Gallup’s latest polling, confidence in the presidency has dropped by 15 percentage points and the Supreme Court by 11. When it comes to Congress, Americans with a “great deal” or “quite a lot” of confidence in that body have bottomed out at a barely perceptible 7%. It’s hard to get much lower than that (although these days our politicians are putting significant effort into outdoing themselves). We’re already talking about new lows for all three branches of government and, when it comes to that, it hardly matters whether you’re a Republican, a Democrat, or an independent.

As this century began, only 5% of Americans claimed that our most important problem was government. In the Trump years, however, that figure rose to 32% and it’s stayed high ever since. Similarly, according to the Pew Research Center, “public trust” in government has fallen to “near historic lows.” And when you think about it, no wonder!

As TomDispatch regular Karen Greenberg points out, it seems as if top government officials never pay for the disasters they bring on the world (the wars in Afghanistan and Iraq, for instance) or on Americans. The institutionalists of the American system, not to speak of the Trumpist outsiders who became insiders, have had a remarkably free ride during four presidencies, no matter what they did — and now, it seems, an ever more reactionary Supreme Court has joined the fray in an increasingly autocratic fashion. Greenberg asks one crucial question: Is there any hope that the January 6th hearings might help restore some confidence that those who do us dirty in the name of America could actually pay a price for that — a price in court no less?

Honestly, I wouldn’t hold my breath, but we can always hope, can’t we? Isn’t it time that our top officials, including presidents, were held responsible for their criminal acts in our name, whether they were illegal invasions of other countries or sedition here at home? Tom

Can the System Be Saved? Institutionalism vs. Democracy

Well before the House select committee’s January 6th investigation began, trust in the classic American system of checks and balances as reliable protection against executive (or, more recently, Supreme Court) abuses of power had already fallen into a state of disgrace. A domestically shackled Biden presidency, a Congress unable to act, and a Supreme Court that seems ever more like an autocratic governing body has left American “democracy” looking grim indeed.

Now, those hearings are offering the country (and the Justice Department) what could be a last chance to begin restoring the kind of governance that once underlay a functioning democracy. There is, however, a deeply worrisome trend lurking just under this moment’s attempt to garner accountability — namely, the way loyalty to institutional Washington (even outside the law) perpetuates a flight from accountability that’s become a crucial part of American political life.

So far, the January 6th hearings have inspired a cascade of takeaways. With each televised session, new evidence about the acts of Donald Trump and crew have come to light, among them that the former president was all too tight with the far right and that he knew the crowd approaching the Capitol on January 6, 2021, was armed and dangerous. So, too, those watching have learned about witness tampering and also the lengths White House lawyers and others went to in trying to restrain the former president’s engagement with the January 6th rioters. Overall, many Americans (though not so many Republicans) have learned that January 6th was part of a far larger Trumpian effort to negate the results of the 2020 presidential election, no matter the facts or the law.

Beyond chronicling what happened and assigning blame, something else in those hearings is worth noting: namely, they are exposing the ever-growing contradiction between Washington institutionalists, whose first loyalty is to the agencies and departments they served or are serving, and the supposed purpose or mission of those very institutions. And all of this will take the U.S. even further from the democracy it still claims to be, if those who have served in them and in the White House can’t be held accountable for their abuses of power and violations of law.

Over the Cliff of False Institutionalism

For a long time now, the mechanisms of our democratic system of government meant to ensure accountability have been at the edge of collapse, if not obliteration. Who could forget how — something I’ve written about over the years at TomDispatch — the government officials who, in the wake of the 9/11 attacks, led us into the Global War on Terror found myriad ways to evade or defang the checks and balances of the courts and Congress? In the process, they managed to escape all accountability for their crimes. To offer a striking example: the top officials in the administration of President George W. Bush lied about Iraqi autocrat Saddam Hussein having weapons of mass destruction, which was their main excuse for their assault on his country in 2003.

According to the invaluable Costs of War Project, a year and a half after invading Afghanistan in 2001, the top officials of the Bush administration took this country into a war in Iraq that would cost the lives of more than 4,500 American service members and nearly as many U.S. military contractors. Almost 200 journalists and aid workers would also die in that conflict, not to mention hundreds of thousands of Iraqis.

The Costs of War Project estimates that the overall war on terror those officials launched will, in the end, have a price tag of nearly eight trillion dollars. Add to that the impossible-to-calculate costs of their acts to the rule of law, since they dismantled individual liberties and made a mockery of human rights. After all, the top officials of that administration oversaw the secret rewriting of the law to make torture at CIA “black sites” legal, while imprisoning individuals, including Americans, without access to lawyers, due process, or the courts at a prison they built in Guantánamo Bay, Cuba, a system distinctly offshore of what until then had been known as American justice.

When Barack Obama took over the White House in 2009, his administration failed either to mount a course correction or punish any of the torturers or jailers and those who gave them the green light to do so. As the president put it then, he chose to “look forward as opposed to looking backwards.” He refused even to hold an investigation into the misdeeds of Bush administration policymakers and lawyers who had rendered us a nation of torture, while secretly implementing warrantless surveillance policies on a mass scale, keeping Guantánamo open, and failing to bring the disastrous American presences in Afghanistan and Iraq to an end.

Ironically, in explaining his reasons for not shining a light into those CIA black sites or so much else that preceded him, Obama pointed to the importance of honoring institutionalism. It was crucial, he argued, for the Agency to be able to continue to function in ways that an investigation might impede. “And part of my job,” the president explained, “is to make sure that, for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering.”

Consider that an early sign of a toxic default to the version of institutionalism that threatens us today.

In the Trump years, Special Counsel Robert Mueller’s report on the 2016 presidential elections stopped short of indicting the former president. Mueller’s task was to investigate potential Russian interference with that election and possible coordination with Trump in that endeavor. Mueller ultimately backed away from indicting the president for obstruction of justice, despite the evidence he had, citing an obscure 1973 Department of Justice memo from the Watergate era (reaffirmed in 2000). The memo argued that such an act would distract the president from the pressing affairs of his office. “The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” the memo said, and Mueller’s mind was evidently still boggled when it came to Donald Trump and the coming 2020 election.

And then there was the failure to investigate the institutional problems that accompanied the country’s initial handling of the Covid pandemic. There has never been the slightest accountability for the denialism that greeted its initial stages, nor any attempt to document what went wrong then. In June 2021, Senators Bob Menendez (D-NJ) and Susan Collins (R-Maine) called for the creation of “an independent 9/11-style commission” to understand how the public had been left so unprotected by the Trump administration in those early pandemic months and to discuss what lessons should be drawn from it for a future pandemic. Senator Dianne Feinstein (D-CA) sponsored such an approach in the Senate, but nothing ever happened.

Such a narrative of accountability and blame might have exposed “the vulnerabilities of our public health system and issue[d] guidance for how we as a nation can better protect the American people.” But no such luck. The institutionalists prevailed and the bills are still lying dormant in Congress.

In these years, a continual distaste for self-examination and institutional reform has eviscerated notions of accountability, while leaving the nation unprepared and unprotected not only from future pandemics, but from abuses of power aimed directly at our democracy. So far, Donald Trump, in particular, has paid no price for his attacks on democracy, as the January 6th committee has made all too clear.

Institutionalists vs. Accountability

The January 6th hearings have only underscored the reticence of Attorney General Merrick Garland when it came to mounting a case against Donald Trump or any of his top officials. As former Acting Solicitor General Neal Katyal has written, “[W]e’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry.” And yet Department of Justice (DOJ) veterans continue to attest to their faith that the institution and Attorney General Garland will rise to the occasion.

Harvard law professor and former DOJ official Jack Goldsmith recently asked readers to sympathize with the difficult decisions the attorney general has to deal with. Garland “arguably faces a conflict of interest,” Goldsmith wrote. He then added that Garland would not only have to be convinced that he had enough evidence to get a conviction in federal court, but would have to ask himself “whether the national interest would be served by prosecuting Mr. Trump.” Goldsmith does recognize that a failure to indict could send a message that the president, even Donald Trump, “is literally above the law.” Yet he still ends his piece with a plea for trust in the AG’s decision-making.

And Goldsmith is anything but alone in putting his faith in the institution above the dire necessity of holding top officials accountable. Eric Holder, Obama’s attorney general, a 10-year DOJ veteran, has, in the end, weighed in similarly. “I’m an institutionalist,” he told Margaret Brennan on Face the Nation, signaling his credentials as a trusting servant of that department. “My initial thought was not to indict the former president out of concern [for] how divisive it would be. But given what we have learned, I think that he probably has to be held accountable.” A mere two weeks later he, too, had backtracked, saying “we should have faith” in Garland and the prospect of future indictments of Trump and top members of his administration.

In reality, this embrace of institutionalism, far from being a badge of honor, has become a millstone around the neck of the Department of Justice and the nation as a whole. Throughout the tenure of William Barr as Trump’s attorney general, veterans of that department and career officials there assuaged the fears of those worried that he would contribute to its further politicization. As department veteran Harry Litman reassured Americans on NPR, “That would never be Bill Barr. He’s a[n] institutionalist. He understands the important values of the Department of Justice. He has integrity. He has stature. He’s nobody’s toady.”

As it turned out, until the very end of Trump’s presidency, Barr proved to be an institutionalist bent on twisting the definition to fit his needs. His numerous stints in the White House, going back to the early 1990s, turned his form of institutionalism into an embrace of loyalty to the president over any form of accountability. Before the report of Special Counsel Mueller was even released, Barr provided his own spin, contrary to its findings. As he told NPR:

After carefully reviewing the facts and legal theories outlined in the report… the deputy attorney general and I concluded that the evidence developed by the special counsel is not sufficient to establish that the president committed an obstruction of justice offense.

This, despite the fact that, as Mueller testified, he had concluded otherwise.

Such shout-outs to institutionalism have become an essential part of the post-Trump political scene as well, extending to the very nature of America’s governing principles. For example, institutionalists who oppose expansion of the Supreme Court argue that such a move would constitute “serious violations of norms” and ultimately “undermin[e] the democratic system” and “diminish [the court’s] independence and legitimacy,” or so a report on potential Supreme Court reform, commissioned by Biden in 2021, concluded. And even after the disastrous Supreme Court decisions repealing abortion rights and expanding gun rights, President Biden, the consummate self-declared institutionalist, indicated that expanding the court “is not something that he wants to do,” as if the traditions of our institutions are more important than fairness, the representation of the majority, or even justice itself.

Biden has similarly shown an impassioned reluctance to challenge Congress, refusing, for instance, to lead the way when it comes to ending the filibuster in the Senate. Earlier this year he did finally (and unsucessfully) support a carve-out from the filibuster in order to try to get a voting rights bill passed and more recently in support of passing abortion-rights legislation. But his belated and tepid words were at best mere gestures and utterly without effect.

Could the January 6th Hearings Be a Game-Changer?

The House select committee investigating January 6th has been making its case directly to a remarkably substantial audience (mainly of Democrats and independents) — 20 million viewers for its opening evening session and 13 million for the daytime testimony of former White House aide to chief of staff Mark Meadows, Cassidy Hutchinson, who attracted the largest daytime audience yet for the hearings, far exceeding even the most watched cable news shows at that hour. And keep in mind that those viewers are, of course, potential voters this November.

In addition to the public, the Department of Justice has been a target audience for those hearings. As Congresswoman and Vice Chairperson of the committee Liz Cheney has said, “The Justice Department doesn’t have to wait for the committee to make a criminal referral. There could be more than one criminal referral.”

There’s another target audience, too: American history and the possibility that the integrity of our institutions can someday be restored. The hearings themselves project the hope that, despite the disastrous failures of American democracy and institutional Washington in this century, there are still guardrails capable of protecting us and fortifying the mechanisms of accountability.

Congressman Adam Schiff (D-CA), a member of the select committee, has summed up the matter this way:

[F]or four years, the Justice Department took the position that you can’t indict a sitting president. If the Department were now to take the position that you can’t investigate or indict a former president, then, a president becomes above the law. That’s a very dangerous idea that the founders would have never subscribed to.

Given Washington’s reliance in these years on loyalty to institutions rather than to democracy, it’s little wonder that polls of Americans show a waning trust in those very institutions. A recent Gallup poll typically “marks new lows in confidence for all three branches of the federal government — the Supreme Court (25%), the presidency (23%) and Congress” which ranked at a truly dismal 7%.

The question is: Can a revival of accountability as a cherished element of governance help to rebuild those institutions and trust in them or are we headed for a far grimmer America in the near future?

The January 6th hearings offer a certain hope that accountability might put institutionalism in its place. Restoring it (and so the faith of the American people in our democracy) should be the sine qua non for a post-Trumpist future. Whatever virtues our institutions may have, their true value can only persist if they are accountable to the principles of democracy they were created to uphold.

The American justice system is eroding before our eyes

Karen Greenberg, A Justice System in Peril

The proof is in the pudding, as they say. In this case, the pudding was very distinctly mixed up by Donald Trump with a nice little hand from Mitch McConnell. Thanks to them, the “justice” system in this country has been remarkably politicized. Thanks to them, the Supremes are no longer the legal equivalent of a popular singing group, but symbols of an ever more divisive system. As TomDispatch regular Karen Greenberg, author of Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump, makes clear today, it’s one that seems capable of holding only pregnant women “responsible” for anything. (Certainly, the same shouldn’t be true for presidents, especially not The Donald!)

Thanks to a leaked draft opinion written by extreme Supreme Samuel Alito, we now know that, in a case likely to be announced soon, that court’s nearly half-century-old Roe v. Wade decision is almost certain to be overruled. In short, America’s ultimate court is at the edge of the sort of decision not seen since perhaps the Dred Scott case of 1857, a stepping stone to this country’s civil war. The route to such supreme injustice hasn’t been a short one. As Greenberg points out, in this century ever more Americans with clout, starting with George W. Bush and crew, were held ever less responsible for their ever more criminal acts. Sadly, while presidents have gone free, so many women in states in which abortion will no longer be legal are likely to find themselves again, as a half-century ago, in back alleys looking for ways not to have babies they can’t afford or support or deal with. (In some states, including Mississippi, whose abortion case is now before the Supreme Court, it won’t even matter if your pregnancy results from rape or incest.)

Add a post-2022 Republican Congress to the present Supreme Court and then a Trumpist victory in the 2024 elections and this country could be left with the ultimate nightmare, a political system made in hell. Perhaps that will somehow be avoided, but don’t count on it.

In the meantime, let Greenberg tell you about a justice system that, even before the Alito opinion became public, was headed for the nearest drain. Tom

The Empire’s New Clothes – The Veneer of Accountability Is Wearing Thin in Twenty-First-Century America

If you watched TV in the 1960s and 1970s as I did, you would undoubtedly have come away with the idea that this country’s courts, law enforcement agencies, and the laws they aimed to honor added up to a system in which justice was always served.

In those years, for instance, Perry Mason was a much-loved staple from coast to coast. In each episode, Perry, that intrepid, tall, dark, kindly genius of a defense attorney, would face off against Hamilton Burger, a small-boned, pointy-faced, sanctimonious prosecutor — and justice would always be served. He had what seemed then to be an all-American knack for uncovering exactly the right evidence of misdeeds that would lead justice directly to the doorstep of the true perpetrator of any crime and bring him or her to account. The takeaway caught the mood of the time: the courts and the legal system were powerful platforms for serving justice, sorting out right from wrong, punishing the criminals, and exonerating the innocent.

A few years later, Colombo would portray a police investigator whose reputation resided in his ability to sift through misleading facts and intentional subterfuge, unearth reliable evidence as well as the true culprits in any crime, and — without fail — bring them to justice.

Those two shows caught the essence of how most Americans then felt about the justice system in this country. We trusted it. Today, it’s not just that you can’t find such shows on TV anymore, it’s that trust in the legal system, fictional or otherwise, is rapidly fading, succumbing to the dangerous poison of this partisan moment and an ever more partisan Supreme Court. As Americans watch from the sidelines, the courts and the legal system continue to visibly fumble in the dark for legitimacy of any sort.

Yes, pundits and experts (like the rest of us) tend to focus on disastrous individual cases that interest them like the one in which those who plotted to kidnap and kill Michigan Governor Gretchen Whitmer managed to escape conviction or, say, the acquittal of the youthful Kyle Rittenhouse who used an assault rifle to kill two men at a Black Lives Matter protest. But here’s the truth of our moment: the larger picture of American (in)justice has become far more damning than any case could be. Ultimately, after all, the issue isn’t the outcome of any specific case, but trust (or increasingly, the lack of it) in the system that’s supposed to administer, adjudicate, and legitimate the law in America.

Despite the recent scandal over the Supreme Court’s coming decision to overrule Roe v. Wade, nowhere is this clearer than in the cases surrounding the January 6th Capitol riot.

The January 6th Investigation

It’s hard to describe the Justice Department’s handling of the insurrection on January 6, 2021, as anything other than appalling. Nearly a year and a half later, despite more than 800 indictments of individuals involved in the assault on the Capitol, no charges have yet been filed against either former President Donald Trump or any of his close allies who helped plan, fund, and execute the attempt to overturn the results of the 2020 election. Instead, Attorney General Merrick Garland appears to have thrown up his hands in defeat, as if to suggest that the controversy around holding Trump and his associates accountable has simply been more than he can handle.

From law schools, lawyers, and legal theorists have called for the Justice Department to face that threat to democracy and act have only grown louder. In March, for instance, Harvard law professor Laurence Tribe and former federal prosecutor Dennis Aftergut urged Garland to appoint a special prosecutor to investigate the former president based on evidence already presented in other lawsuits. No such appointment has yet been forthcoming.

To underscore the mounting evidence in the public record against those former officials, Ryan Goodman, Mari Dugas, and Nicholas Tonckens at Just Security played prosecutor (as Garland hasn’t) and laid out their own timeline of dozens of incriminating acts, beginning a year before the riot, that could collectively justify charges against Trump and crew of incitement to violence. In April, according to New York Times reporters Michael Schmidt and Luke Broadwater, the House Select Committee to Investigate the January 6th Attack on the United States Capitol had “concluded that they have enough evidence” to make a criminal referral about the former president to the Justice Department, though they have yet to vote to do so. Meanwhile, a federal judge in California ruled in a civil suit that Trump “likely attempted to obstruct the joint session of Congress” meant to certify Joe Biden’s electoral victory, adding that “the illegality of the plan was obvious.”

Sadly, the Teflon coating on Trump and his associates has been striking. After all, in January, the House Select Committee voted to back contempt charges against former White House Chief of Staff Mark Meadows for refusing to comply with a subpoena for his testimony. To date, however, Attorney General Garland hasn’t followed up. More recently, the House Select Committee voted to hold in contempt former White House advisers Peter Navarro and Dan Scavino for a similar refusal to comply with subpoenas. The results will likely be the same.

Even where there has been some willingness to indict, the courts have been remarkably stymied when it comes to forward momentum on cases involving Trump’s crew. In November, for instance, Steve Bannon, one-time senior aide to the president, was indeed indicted on contempt of Congress charges for his refusal to respond to subpoenas from the House Select Committee. Bannon promptly pushed back, arguing that longstanding Justice Department memos held former presidential advisers immune from such congressional subpoenas. In March, a federal judge finally asked to see those memos. And so it goes — and goes and goes. And as time passes, so, too, does the likelihood that justice will ever be done.

As for the former president’s business affairs involving the Trump Organization, the process has faltered in a remarkably similar fashion. Earlier this year, Manhattan District Attorney Alvin Bragg dropped an investigation of the former president. He was reportedly convinced that, in the end, he wouldn’t be able to prove that Trump and his closest employees were motivated by theft when they lied about the value of his businesses. Bragg decided not to pursue charges against Trump despite the aggressive efforts of his predecessor, Cyrus Vance, to uncover just such a record and the opinion of a respected lawyer brought in to shepherd the investigation through who, in an outraged letter of resignation, insisted that Trump had indeed committed “numerous [financial] felony violations.” (It had taken Vance years and a Supreme Court decision just to get the company tax records for his case against Trump.)

In early May, a grand jury that had been convened to consider charges against Trump expired. Now, it seems that New York State Attorney General Letitia James’s efforts to bring charges of fraud could crumble as well.

Of course, even a president who tried to mount a coup to cancel the results of an election should be able to avail himself of the American system’s legal protections and defenses. That said, in failing to hold Trump accountable for more or less anything, a message is being sent about justice in this century: that accountability is just not in the cards for American officials who commit crimes. (Of course, one can still hope that the special investigative Georgia grand jury just seated to look into Trump’s possible attempts to disrupt the 2020 election in that state might prove more effective, but I wouldn’t hold my breath.)

Police Murders

Sadly enough, the incapacity of the courts and the legal system to administer accountability for terrible crimes is a phenomenon that’s hardly reserved for Washington politicians and their aides. Abuses of power throughout the country are regularly being overlooked, notably in the mounting examples of police killings of unarmed Black men and women. Across the U.S., courts have repeatedly proven unable to hold accountable police perpetrators whose racist actions had been videotaped and witnessed. Though there have been rare exceptions as, for instance, in the case of the killing of George Floyd, where police officer Derek Chauvin was found guilty of murder and three police officers were convicted of “violating his rights,” the impunity of so many policemen accused of killing Blacks has become a theme of American life. The list is long. Prosecutors in Kenosha, Wisconsin, for instance, decided not even to file charges against the officer who shot and paralyzed Jacob Blake in August, 2020; none of the police who stormed into Breonna Taylor’s house in Louisville, Kentucky, in March 2020 and killed her for doing nothing whatsoever were even charged; and no policemen in Minneapolis earlier this spring were held accountable for shooting and killing Amir Locke. And that’s just to begin a list that goes on and on.

The War on Terror

And let’s face it, when it comes to the slow erosion of justice and accountability in this country, there’s nothing new or simply Trumpian about that. In fact, there’s been a slow erosion of the viability of the mechanisms of justice and accountability for all too long. For two decades now, the offshore American prison at Guantánamo Bay, Cuba, has stood as a stunning symbol of American injustice, as well as of the inability to convict anyone for the attacks of 9/11 (as opposed to simply holding them endlessly in prison cells offshore of American justice). Nor has there been the slightest accountability for public officials, from the president on down, who gave the green light to a wholesale torture program at CIA “black sites” around the world. Nor, for that matter, were President George W. Bush, Vice President Dick Cheney, and other top officials of their administration ever held accountable for knowingly relying on a lie — the supposed existence of weapons of mass destruction in Saddam Hussein’s Iraq — as a pretext for invading a distant land.

For Bush, it was a matter of embracing horrifying misdeeds in the name of national security. For Barack Obama, it was a matter of not wanting to spend the political capital required to hold his predecessor accountable. As he famously said in the days leading up to his inauguration, this country needed “to look forward as opposed to looking backward” when it came to the Bush administration’s use of torture and warrantless surveillance in the war on terror. The ability of the CIA to function effectively in the future, he argued, should not be undermined. Merrick Garland’s profound passivity when it comes to January 6th may, in fact, just be an extension of that very philosophy.

So profound has the distaste for pursuing accountability been in these years that administration after administration and Congress after Congress have forfeited any trust in the federal courts even to try those accused of perpetrating the 9/11 attacks, leaving the case instead to the broken and incapacitated military commissions at Guantánamo. What would Perry Mason or Columbo have made of that?

Once Upon a Time

There was a time, not that long ago, when the courts still held accountable those in high office who abused power. A president and an attorney general, for instance, authorized a secret and illicit intelligence unit to spy on the Democratic National Committee, to break into Democratic headquarters, and then to cover up that very break-in. For this, of course, President Richard Nixon and his top advisers were held accountable in the famous Senate Watergate hearings. Nixon resigned; 40 members of his administration were indeed indicted; many, including top officials, were jailed, among them the president’s chief of staff, his attorney general, his White House legal counsel, and some of his top advisers. Not only were they convicted, but they were found guilty in a timely fashion, the trials and guilty pleas coming within two years of the crime itself.

John Dean, a top Nixon aide convicted of obstruction of justice — he served four months in prison for it — recently made a prediction that underscores the gap between then and now. His testimony at the Watergate hearings had been pivotal in exposing the administration’s cover-up of the break-in. This March, he weighed in on reports that Michael Cohen, Donald Trump’s former lawyer, had on seven occasions visited the offices of Manhattan prosecutors working on the criminal investigation into Trump’s finances. As Dean tweeted then, “From personal experience as a key witness I assure you that you do not visit a prosecutor’s office 7 times if they are not planning to indict those about whom you have knowledge. It is only a matter of how many days until DA Vance indicts Donald & Co.”

And yet the days went by and nothing happened until the case was dropped. Dean had miscalculated in thinking that the past was relevant to the present.

Still, is there any hope that, in the long run, he might prove correct? After all, New York Attorney General Letitia James has not yet dropped her possible case against Trump and his company. Better yet, recently a New York supreme court justice found the former president in contempt of court for failing to comply with a subpoena to produce documents from his personal files. His initial appeal having failed, he’s being penalized $10,000 a day until the records are turned over.

So, between New York and Georgia, hope, however minimal, remains when it comes to holding Donald Trump accountable for something. Still, there’s so much more at stake than the case of one president, many police officers, or even an ever more partisan and political Supreme Court. Whether most Americans realize it or not, the future legitimacy of the courts themselves are now in play. Without a functioning court system, one that can stand up effectively to illegal political machinations, as well as partisan and ideological attacks, the law belongs solely to those in power.

And it’s not just here at home that the legitimacy of the courts is coming into question. In the international context, too, the potential anemia of criminal courts is being challenged by the war in Ukraine. Calls for bringing war-crimes charges against Russian President Vladimir Putin and members of the Russian military have been persistent. Reports of summary executions, the targeting of civilians, and mounting evidence of cruelties and atrocities have led to multiple accusations of violations of the laws of war. The chief prosecutor at the International Criminal Court (ICC) in the Hague has already joined with the European Union to conduct an investigation into possible war crimes. But as many experts have pointed out, it’s hard to say how long that investigation might take and whether or not charges will ever be leveled, no less brought effectively to bear. In this regard, Washington’s failure to hold its officials accountable in the past or even to join the ICC should be noted.

And that’s just one more arena where, on a planet increasingly pushed to the brink, the rule of law may prove to be ever more of an aspiration and ever less of a reality.

At the moment, we find ourselves at an all-too-dangerous crossroads. Without our courts and the system of law they represent being truly functional, citizens could be left to settle things for themselves in true Trumpian fashion. In the international context, war defies the courts and the rule of law. In the domestic context, unregulated violence plays a similar role. As it stands now, when it comes to our system of justice, its veneer of effectiveness is wearing ever thinner.

Merrick Garland and other Americans would do well to consider that it’s not just the cases before our courts that are at issue, but the future viability of the institutions of justice themselves. In the world we now find ourselves in, the very idea of a Perry Mason could prove all too once upon a time.

War in Ukraine a 'wake-up call' for humanity to get its act together

Exactly what we needed: an invasion that sends us into the grimmest parts of our Cold War past just as the planet’s scientists are warning us that our future is all-too-desperately at stake. Count on one thing: in few countries that truly matter will money pour into fighting the endless burning of fossil fuels that could heat this planet to the boiling point. Count on something else as well. Money is going to pour into military-industrial complexes globally, into what everyone loves to call “defense” spending, just when it should be used to establish new clean-energy infrastructures that don’t use fossil fuels. Thank you, Vlad!

Remember how that old song went? War, what is it good for? The hopeful answer then: Absolutely nothing! Unfortunately, in our present moment, that’s proving anything but true. In response to the invasion of Ukraine, Germany is now planning to radically raise the once relatively modest funds it put into its military machine. Meanwhile, it goes without saying that, just as they did last year, the Biden administration and Congress are expected to up the next U.S. “defense” budget to even more stratospheric heights.

Mind you, all of this is happening just as the U.N.’s Intergovernmental Panel on Climate Change (IPCC) has released its latest devastating report suggesting that we humans are altering this planet in an “unprecedented” and potentially “irreversible” fashion. Personally, I don’t blame the three IPCC scientists who are now urging their peers to go on “strike” when it comes to producing more such reports in the future because no one in power seems to pay the slightest attention to them.

If we’re not a lot more careful than we’ve been so far — and the signs in this country, given a potential future Republican Congress (not to speak of Joe Manchin and crew) are hardly encouraging — we’re in deep trouble. With this in mind, let TomDispatch regular Karen Greenberg paint you a picture of a planet in which the local and the global are becoming one and the same in a genuinely frightening fashion. Tom

Our Ukraine Wake-Up Call

In recent days, experts have begun laying out the potential hardships the Russian invasion of Ukraine might inflict here in the United States, thousands and thousands of miles from the battle zone. As former White House national security official Richard Clarke bluntly put it, “Russia will bring the war to our homeland.” He pointed to potential damage in two particular realms, possible Russian cyberattacks and disinformation meant to unsettle our domestic politics. Similarly, economists and financial firms are predicting what an ongoing war in Ukraine could mean in terms of rising prices for wheat, vegetable oil, and oil and gas, among other commodities.

How different this sense of potential damage is than that expressed when, in the wake of 9/11, America went to war globally with its invasion of Afghanistan and its war on terror. As the president of that moment, George W. Bush, insisted so confidently in 2001, Americans should simply “go shopping” and not be distracted by the country’s distant battles. As he later put it, “We will fight them over there so we do not have to face them in the United States of America.”

At the heart of those claims was the thought that foreign wars could be fought by a great power without damage at home — or put another way, that the theaters of conflict for the Global War on Terror were somehow eternally separable from the daily lives of Americans. But tell that to the country that elected Donald Trump as president 15 years later and has been coming apart at the seams ever since.

With the invasion of Ukraine by Vladimir Putin’s Russia, a possible Potemkin superpower, it already seems clear that Bush’s notion no longer holds (if it ever did) when it comes to war on this planet, no matter where it takes place or which power initiates it. Even though the current conflict isn’t directly our war, one thing is guaranteed: its outcome will be of major significance to the well-being of this country and the international order, thanks to an all-too-basic reality — that the global and the local in today’s world are now virtually indistinguishable. This will, in fact, be the key lesson the ongoing war in Ukraine holds for us as a nation.

The Twenty-First Century

From the American perspective, the inseparable and dangerous nature of the relationship between the U.S. and the world has been creeping up on us ever since this century began. The post-9/11 installation of airport screenings, perpetually reminding us of the threat of the global war on terror, was one early sign. Since then, the number of life-threatening dangers has swelled immeasurably.

After all, our children, like those the world over, have been going to school for nearly two years now wearing masks. While the discomfort and distancing those face shields represented may have been burdensome, the underlying reality was the fear of becoming infected with Covid-19, given the six million deaths it has caused worldwide. And among other dangers in our American world, even the wave of shootings at our schools and other public places in these years has had a global dimension, linked as some of them were to white extremist attacks abroad. Notably, in April 2019, the synagogue shooter in California praised an avowed white supremacist who had murdered Muslims in Christ Church, New Zealand, earlier that year (as did the gunman in the 2019 Walmart shootings in El Paso, Texas). And since then, the global ties among white supremacists bent on anti-immigrant violence have only escalated.

Within such a context of war, disease, and fear in which the local and the global continue to merge, there are now some simmering realities the Russian war in Ukraine has exposed in new and powerful ways.

The Nuclear Threat

Like the pandemic, the threat of nuclear warfare has long recognized neither boundaries nor borders. Remember, for instance, that President Bush’s 2003 invasion of Iraq was premised on the lie manufactured as a pretext for war that Saddam Hussein had weapons of mass destruction. Beyond that, the Iran nuclear deal and concern about North Korea’s growing nuclear capabilities have been constant themes in the international news in these years.

Ukraine, however, threatens to take the fear of a nuclear disaster to a new level. There was, of course, Vladimir Putin’s ominous announcement that he was putting the Russian nuclear arsenal on “high alert,” as well as the drills the Russians conducted with land-based missiles and nuclear subs. As spokespeople for the Nuclear Threat Initiative pointed out, that was his grim way of trying to “deter outside interference with his invasion of Ukraine.”

Unfortunately, such a threat only increases the risk of catastrophic mistakes. In addition, within 24 hours of the invasion, Russian troops had gained access to the still-dangerous remains of the Chernobyl nuclear power plant buried in concrete after a meltdown in 1986 that took 47 lives, devastated crops in Ukraine and neighboring countries, and led to an estimated exposure of 530,000 people to nuclear fallout. Later, they seized and burned part of Ukraine’s Zaporizhzhia nuclear plant, which happens to be the largest in Europe.

Imagine that, in our future, the equivalent of the duck-and-cover drills of my childhood may once again become a reality.

Climate Change and Clean Energy

The Ukraine crisis has exposed the inseparability of the local and the global in another way: energy policy and threats from climate change. As much as this conflict may be about the post-Cold War order, NATO, and Putin’s appetite for heightening the stakes, it’s also about oil and gas. The new Nord Stream 2 pipeline Russia has built to Germany was specifically intended to bypass Ukraine and so deny it the profits that might come from transporting Russian fossil fuels to Europe. (Under the auspices of Nord Stream 2, by the way, the profits of the oil and gas industry in the region were expected to double, enriching both Russia and Western oil enterprises.) Opponents have argued that the pipeline “would make Germany and a few other countries slaves to Russian gas.” As Eric Reguly, the Berlin-based European bureau chief for the Globe and Mail, explained, the move to build Nord Stream 2 was seen as “intensifying Europe’s fossil fuel reliance when it should be devoting its might and creativity to renewable energy.”

It’s no mistake that Putin launched this campaign during the cold of winter. He was well aware of Europe’s dependence on Russian natural gas for its heating in a world in which the threat of climate change has failed to substantially redirect the energy policies of either our country or so many others in significant enough ways. Despite President Biden’s attempts to address climate change — including rejoining the Paris climate accord, empowering the Environmental Protection Agency to restrict greenhouse gas emissions, and aiming to get the U.S. to “net-zero” by 2050 — his remedies have not been equal to the task. Many of his moves have been thwarted, of course, by Republican opposition in Congress, with even worse possibly to come in the near future from a right-wing Supreme Court.

Democrats have proposed a Climate Civilian Corps to address the climate emergency and our younger generations have indeed displayed an urge to counter the warming of our world. In May of 2021, a Pew Research poll showed that “32% of Gen Zers and 28% of Millennials have taken at least one of four actions (donating money, contacting an elected official, volunteering or attending a rally) to help address climate change in the last year.” Significantly, the poll indicated that, even among Republicans, 49% of Gen Zers and 48% of Millennials “say action to reduce the effects of climate change needs to be prioritized today, even if that means fewer resources to deal with other important problems.”

Yet the move to clean energy in this country is, at best, creeping along at a snail’s pace. And no matter how forward-thinking the green-energy movement itself may be, the megadrought in the Southwest (of a sort not seen in 1,200 years) and California’s raging mega-fires that have destroyed hundreds of thousands of acres of woodlands are indications of just how far short this country (and the rest of the world) are falling in terms of responding to climate change.

Whatever else happens, the pressing need for energy independence and non-greenhouse-gas-producing fuels should be one of the key lessons learned from the Ukraine-Russia crisis. With nuclear threats in the air, profits seem to diminish in importance. With the onset of this conflict, in fact, the Nord Stream 2 gas pipeline was halted by German Chancellor Olaf Scholz.

The Ukraine-Russia conflict has brought energy policy to the forefront of world affairs not because of fires or flooding or the erosion of beaches or intolerable temperatures or even the recent devastating Intergovernmental Panel on Climate Change report, but because the threat Russia poses to world stability has suddenly clarified the stakes involved in not prioritizing clean energy.

Cyber Threats

A third issue of both local and global importance to which the Ukraine crisis has instantly lent a new level of awareness is the potential damage cyberattacks could cause — in Ukraine, of course, but far beyond as well, including in the United States. As Richard Clarke pointed out recently, Vladimir Putin could bring the global danger of cyberattacks home to each and every one of us. “Russia could attempt to prevent anyone’s online access to key parts” of the global and local financial system, he pointed out. Cyberattacks could similarly target our power grids and so the electricity that runs our homes, businesses, trains, and more.

Beyond fears of running out of cash or losing electricity, there’s yet another danger posed by the weaponizing of cyberspace — information warfare. “Russian trolls, bots, and disinformation experts,” Clarke reminds us, have been used to stoke conflict in American politics for years now. Old videos of bloodshed, published as if they were part of the current Ukraine conflict, have started filling social-media sites as Russia attempts to use disinformation to counter resistance in that country with its own online version of military successes.

Dealing with such social-media disinformation is a global problem that needs to be addressed sooner rather than later via laws, international accords, and new regulations. For now, Facebook’s parent company Meta and several other social media giants have actively thwarted the spread of false information on Ukraine, removing both accounts and websites. But far more will need to be done.

Displaced Persons

Yet another arena where the overlap of the global and local has been highlighted by the Russian war is the world’s ever-expanding population of displaced people, including refugees. In November 2021, there were an estimated 84 million of them worldwide.

The plight of Ukrainian refugees is increasing those numbers exponentially. In just the first days of that conflict, they have already reached an estimated million and a half. Experts are currently predicting that such refugee flows could hit five million as the war plays out. Poland, Romania, Slovakia, Hungary, and Moldova have offered to take in such refugees, largely women and children, for the time being, but their long-term sustenance will undoubtedly pose significant challenges, especially if the situation in Ukraine isn’t settled soon.

The United States, too, has been challenged by a refugee response recently. Dozens of American agencies have become involved in helping the 76,000 Afghans who have arrived here since the U.S. withdrew its troops in August, after defeat in our war there. Across the country, from Philadelphia to Texas to Seattle, help has been offered for their sustenance, shelter, medical care, and even schooling. However, in a country that, in the Trump era, has been increasingly driven by the very idea of refugees and immigrants coming here, tensions may only continue to rise.

Once again, in the context of refugees, the local and the global are merging in worrying ways, underscoring the urgent need for new strategies and policies.

Facing the Future from the Present, Not the Past

In search of explanatory paradigms for the current crisis, experts and pundits keep rummaging through the past — Hitler’s annexation of the Sudetenland at the beginning of World War II, the Soviet incursions into Hungary in 1956, and Czechoslovakia in 1968, not to mention the Cold War paradigm that infuses Vladimir Putin’s thinking and increasingly Washington’s as well. In all too many ways, unfortunately, such invocations of the past fail to offer us help. They are distractions rather than guideposts.

The current conflict in Ukraine demands that we look to the present and the future on this increasingly endangered planet of ours. It’s time to recognize that, whether you’re talking about nuclear weapons, cyberattacks, refugees, pandemics, or the fate of a fast-warming planet, that conflict stands in for the most pressing global and local realities of this century, not the previous one.

The war there should be a wake-up call. Its unmistakable directive: accept the realities of the twenty-first-century world. We are so much more interconnected than we care to acknowledge and, with that in mind, we need new norms and protections in place of those that have led us to this point on an all-too-new and dangerous planet.

The Global War on Terror still plagues us. Here's how Biden could really end it for good

As August ended, American troops completed their withdrawal from Afghanistan almost 20 years after they first arrived. On the formal date of withdrawal, however, President Biden insisted that “over-the-horizon capabilities” (airpower and Special Operations forces, for example) would remain available for use anytime. “[W]e can strike terrorists and targets without American boots on the ground, very few if needed,” he explained, dispensing immediately with any notion of a true peace. But beyond expectations of continued violence in Afghanistan, there was an even greater obstacle to officially ending the war there: the fact that it was part of a never-ending, far larger conflict originally called the Global War on Terror (in caps), then the plain-old lower-cased war on terror, and finally — as public opinion here soured on it — America’s “forever wars.”

As we face the future, it’s time to finally focus on ending, formally and in every other way, that disastrous larger war. It’s time to acknowledge in the most concrete ways imaginable that the post-9/11 war on terror, of which the bombing and invasion of Afghanistan was the opening salvo, warrants a final sunset.

True, security experts like to point out that the threat of global Islamist terrorism is still of pressing — and in many areas, increasing — concern. ISIS and al-Qaeda are reportedly again on the rise in the Middle East, South Asia, and Africa.

Nonetheless, the place where the war on terror truly needs to end is right here in this country. From the beginning, its scope, as defined in Washington, was arguably limitless and the extralegal institutions it helped create, as well as its numerous departures from the rule of law, would prove disastrous for this country. In other words, it’s time for America to withdraw not just from Afghanistan (or Iraq or Syria or Somalia) but, metaphorically speaking at least, from this country, too. It’s time for the war on terror to truly come to an end.

With that goal in mind, three developments could signal that its time has possibly come, even if no formal declaration of such an end is ever made. In all three areas, there have recently been signs of progress (though, sadly, regress as well).

Repeal of the 2001 AUMF

First and foremost, Congress needs to repeal its disastrous 2001 Authorization for the Use of Force (AUMF) passed — with Representative Barbara Lee’s single “no” vote — after the attacks of 9/11. Over the last 20 years, it would prove foundational in allowing the U.S. military to be used globally in essentially any way a president wanted.

That AUMF was written without mention of a specific enemy or geographical specificity of any kind when it came to possible theaters of operation and without the slightest reference to what the end of such hostilities might look like. As a result, it bestowed on the president the power to use force when, where, and however he wanted in fighting the war on terror without the need to further consult Congress. Employed initially to root out al-Qaeda and defeat the Taliban in Afghanistan, it has been used over the last two decades to fight in at least 19 countries in the Greater Middle East, Africa, and Asia. Its repeal is almost unimaginably overdue.

In fact, in the early months of the Biden presidency, Congress began to make some efforts to do just that. The goal, in the words of White House Press Secretary Jen Psaki, was to “to ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.”

The momentum for repealing and replacing that AUMF was soon stalled, however, by the messy, chaotic and dangerous exit from Afghanistan. Those in Congress and elsewhere in Washington opposed to its repeal began to argue vociferously that the very way America’s Afghan campaign had collapsed and the Biden policy of over-the-horizon strikes mandated its continuance.

At the moment, some efforts towards repeal again seem to be gaining momentum, with the focus now on the more modest goal of simply reducing the blanket authority the authorization still allows a president to make war as he pleases, while ensuring that Congress has a say in any future decisions on using force abroad. As Senator Chris Murphy (D-CT), an advocate for rethinking presidential war powers generally, has put the matter, “If you’re taking strikes in Somalia, come to Congress and get an authorization for it. If you want to be involved in hostilities in Somalia for the next five years, come and explain why that’s necessary and come and get an explicit authorization.”

One thing is guaranteed, even two decades after the disastrous war on terror began, it will be an uphill battle in Congress to alter or repeal that initial forever AUMF that has endlessly validated our forever wars. But if the end of the war on terror as we’ve known it is ever to occur, it’s an imperative act.

Closing Gitmo

A second essential act to signal the end of the war on terror would, of course, be the closing of that offshore essence of injustice, the prison at Guantánamo Bay, Cuba (aka Gitmo) that the Bush administration set up so long ago. That war on terror detention facility on the island of Cuba was opened in January 2002. As it approaches its 20-year anniversary, the approximately 780 detainees it once held, under the grimmest of circumstances, have been whittled down to 39.

Closing Guantánamo would remove a central symbol of America’s war-on-terror policies when it came to detention, interrogation, and torture. Today, that facility holds two main groups of detainees — 12 whose cases belong to the military commissions (2 have been convicted and sentenced, 10 await trial) and 27 who, after all these years, are still being held without charge — the truest “forever prisoners” of the war on terror, so labelled by Miami Herald (now New York Times) reporter Carol Rosenberg nearly a decade ago.

Through diplomacy — by promising safety to the detainees and security to the United States should signs of recidivist behavior appear — the Biden administration could arrange the release of the prisoners in that second group to other countries and radically reduce the forever-prison population. They could be transferred abroad, including even Abu Zubaydah, the first prisoner tortured under the CIA’s auspices, a detainee whom the Agency insisted, “should remain incommunicado for the remainder of his life.”

The military commissions responsible for the other group of detainees, including the five charged with the 9/11 attacks, pose a different kind of problem. In the 15 years since the start of those congressionally created commissions, there have been a total of eight convictions, six through guilty pleas, four of them later overturned. Trying such cases, even offshore of the American justice system, has proven remarkably problematic. The prosecutions have been plagued by the fact those defendants were tortured at CIA black sites and that confessions or witness testimony produced under torture is forbidden in the military commissions process.

The inadmissibility of such material, along with numerous examples of the government’s mishandling of evidence, its violations of correct court procedure, and even its spying on the meetings of defense attorneys with their clients, has turned those commissions into a virtual mobius loop of litigation and so a judicial nightmare. As Senator Dick Durbin (D-IL) put it in a recent impassioned plea for Gitmo’s closure, “Military commissions are not the answer… We need to trust our system of justice,” he said. “America’s failures in Guantanamo must not be passed on to another administration or to another Congress.”

As Durbin’s comments and the scheduling of a Senate Judiciary Committee hearing on closure set for December 7th indicate, some headway has perhaps been made toward that end. Early in his presidency, Joe Biden (mindful certainly of Barack Obama’s unrealized executive order on Day One of his presidency calling for the closure of Gitmo within a year) expressed his intention to shut down that prison by the end of his first term in office. He then commissioned the National Security Council to study just how to do it.

In addition, the Biden administration has more than doubled the number of detainees cleared to be released and transferred to other countries, while the military tribunals for all four pending cases have restarted after a hiatus imposed by Covid-19 restrictions. So, too, the long-delayed sentencing hearing of Pakistani detainee Majid Kahn, who pleaded guilty more than nine years ago, finally took place in October.

So, once again, some progress is being made, but as long as Gitmo remains open, our own homemade version of the war on terror will live on.

Redefining the Threat

Another admittedly grim sign that the post-9/11 war on terror could finally fade away is the pivot of attention in this country to other far more pressing threats on a planet in danger and in the midst of a desperate and devastating pandemic. Notably, on the 20th anniversary of those attacks, even former President George W. Bush, whose administration launched the war on terror and its ills, acknowledged a shift in the country’s threat matrix: “[W]e have seen growing evidence that the dangers to our country can come not only across borders, but from violence that gathers within.”

He then made it clear that he wasn’t referring to homegrown jihadists, but to those who, on January 6th, so notoriously busted into the Capitol building, threatening the vice president and other politicians of both parties, as well as other American extremists. “There is,” he asserted, “little cultural overlap between violent extremists abroad and violent extremists at home.”

As the former president’s remarks suggested, even as the war on terror straggles on, in this country the application of the word “terrorism” has decidedly turned elsewhere — namely, to violent domestic extremists who espouse a white nationalist ideology. By the end of January 6th, the news media were already beginning to refer to the assault on lawmakers in the Capitol as “terrorism” and the attackers as “terrorists.” In the months since, law enforcement has ramped up its efforts against such white-supremacist terrorists.

As FBI Director Chris Wray testified to Congress in September, “There is no doubt about it, today’s threat is different from what it was 20 years ago… That’s why, over the last year and a half, the FBI has pushed even more resources to our domestic terrorism investigations.” He then added, “Now, 9/11 was 20 years ago. But for us at the FBI, as I know it does for my colleagues here with me, it represents a danger we focus on every day. And make no mistake, the danger is real.” Nonetheless, his remarks suggested that a page was indeed being turned, with global terrorism no longer being the ultimate threat to American national security.

The Director of National Intelligence’s 2021 Annual Threat Analysis noted no less bluntly that other dangers warrant more attention than global terrorism. Her report emphasized the far larger threats posed by climate change, the pandemic, and potential great-power rivalries.

Each of these potential pivots suggest the possible end of a war on terror whose casualties include essential aspects of democracy and on which this country squandered almost inconceivable sums of money while constantly widening the theater for the use of force. It’s time to withdraw the ever-expansive war powers Congress gave the president, end indefinite detention at Gitmo, and acknowledge that a shift in priorities is already occurring right under our noses on an ever more imperiled planet. Perhaps then Americans could turn to short-term and long-term priorities that might truly improve the health and sustainability of this nation.

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 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.

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 MilitaryForce 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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5 Ways America Is Betraying Its Best Values in Conflicts With Rest of the World

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Why Is the Obama Administration Subverting the Rule of Law?

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Now That Bin Laden Is Dead, Can We Have Our Freedoms Back?

Osama bin Laden's death removes the single focal point that has dominated American foreign affairs – and much of American politics at home – for a decade. And certainly, the United States and the world can breathe a sigh of relief that a dreaded enemy no longer needs to be countered. But the removal of bin Laden also opens up some space for thinking – not just for perpetual reaction, which has been the singular characteristic of the American version of the "war on terror".

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