Karen J. Greenberg – Informed Comment https://www.juancole.com Thoughts on the Middle East, History and Religion Wed, 11 May 2022 03:23:20 +0000 en-US hourly 1 https://wordpress.org/?v=5.7.6 The Empire’s New Clothes: The Veneer of Accountability Is Wearing Thin in Twenty-First-Century America https://www.juancole.com/2022/05/empires-clothes-accountability.html Wed, 11 May 2022 04:02:05 +0000 https://www.juancole.com/?p=204576 ( Tomdispatch.com ) – 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.”


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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 kililng 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.

Copyright 2022 Karen J. Greenberg

Via Tomdispatch.com

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Our Ukraine Wake-Up Call: The Global Age is Upon Us https://www.juancole.com/2022/03/ukraine-wake-global.html Wed, 09 Mar 2022 05:02:03 +0000 https://www.juancole.com/?p=203382 ( Tomdispatch.com ) – 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 nuclearplant, 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.


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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 with 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 riven 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.

Copyright 2022 Karen J. Greenberg

via Tomdispatch.com

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Guantánamo’s Forever Elusive Endgame: Will We “Celebrate” Its 30th Anniversary? https://www.juancole.com/2022/01/guantanamos-celebrate-anniversary.html Fri, 21 Jan 2022 05:02:50 +0000 https://www.juancole.com/?p=202527 ( Tomdispatch.com ) – It’s now more than 20 years later and that American offshore symbol of mistreatment and injustice, the prison at Guantánamo Bay, Cuba, is still open. In fact, as 2021 ended, New York Times reporter Carol Rosenberg, who has covered that notorious prison complex since its first day, reported on the Pentagon’s plans to build a brand-new prefab courthouse at that naval base. It’s intended to serve as a second, even more secret facility for holding the four remaining trials of war-on-terror detainees and is scheduled to be ready “sometime in 2023.”

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

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

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

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

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

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

The Challenges of Closure

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


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

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

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

How (Not) to Exit Guantánamo

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

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

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

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

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

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

The Longer Legacy

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

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

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

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

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

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

The Courtroom, Then and Now

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

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

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

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

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

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

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

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

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

Copyright 2022 Karen J. Greenberg

Via Tomdispatch.com

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How to End America’s Forever Wars for Once and for All https://www.juancole.com/2021/12/americas-forever-wars.html Fri, 10 Dec 2021 05:02:18 +0000 https://www.juancole.com/?p=201711 ( Tomdispatch.com) – 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.”


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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

Via Tomdispatch.com

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Failures of 9/11 and the 20-year ‘War on Terror’: Being in the Washington Elite means Never Having to Say You’re Sorry https://www.juancole.com/2021/10/failures-terror-washington.html Fri, 08 Oct 2021 04:02:33 +0000 https://www.juancole.com/?p=200480 ( Tomdispatch.com) – 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?”


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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.

Copyright 2021 Karen J. Greenberg

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The Endless Shadow of the War on Terror: Living With It Forever and a Day https://www.juancole.com/2021/08/endless-shadow-forever.html Mon, 23 Aug 2021 04:02:33 +0000 https://www.juancole.com/?p=199645 ( Tomdispatch.com) – It ended in chaos and disaster. Kabul has fallen and Joe Biden is being blamed (by congressional Republicans in particular) for America’s now almost-20-year disaster in Afghanistan. But is the war on terror itself over? Apparently not.

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

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

The Pivot Abroad

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

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


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

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

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

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

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

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

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

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

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

The Pivot at Home

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

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

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

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

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

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

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

A Call for Review

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

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

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

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

If only.

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

Copyright 2021 Karen J. Greenberg

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

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

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

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Torture, Wars of Aggression, Violations of Bill of Rights: Will there ever be accountability for America’s Orgy of War Crimes in the 21st Century https://www.juancole.com/2021/07/aggression-violations-accountability.html Fri, 09 Jul 2021 04:01:59 +0000 https://www.juancole.com/?p=198791 ( Tomdispatch.com) – America has an accountability problem. In fact, if the Covid-19 disaster, the January 6th Capitol attack, and the Trump years are any indication, the American lexicon has essentially dispensed with the term “accountability.”

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

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

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

How We Got Here

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

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

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

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

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

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

Reluctance in the Halls of Accountability

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

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

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


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

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

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

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

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

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

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

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

The Path Forward — or Not?

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

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

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

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

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

Copyright 2021 Karen J. Greenberg

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

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Can Guantánamo Ever Be Shut Down? Dealing with the Forever Prison of America’s Forever Wars https://www.juancole.com/2021/05/guantanamo-dealing-americas.html Wed, 05 May 2021 04:01:05 +0000 https://www.juancole.com/?p=197610 ( Tomdispatch.com) – The Guantánamo conundrum never seems to end.

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

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

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

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

Biden and Guantánamo

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

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

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

As those senators wrote,

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

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

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

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

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

Prisoners of War

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

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

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

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


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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.

Via Tomdispatch.com

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Two Decades on, can Biden End the War on Terror? https://www.juancole.com/2021/03/decades-biden-terror.html Fri, 26 Mar 2021 04:01:34 +0000 https://www.juancole.com/?p=196862 ( Tomidispatch.com ) – In the first two months of Joe Biden’s presidency, you could feel the country holding its breath. Sheltered in place, hidden behind masks, unsure about whether to trust in a safe-from-pandemic future, we are nonetheless beginning to open our eyes collectively. As part of this reemergence, a wider array of issues — those beyond Covid-19 — are once again starting to enter public consciousness. Domestically, attempts to repress (or preserve) voting rights have been consuming activists and dominating headlines, along with this country’s missing infrastructure and a need to raise the minimum wage. The foreign affairs agenda isn’t far behind. From rising great-power rivalries, notably with China and Russia, to cyberattacks like the Solarwinds hack that affected agencies across the government, to the question of whether American troops will leave Afghanistan, a growing number of issues loom for the administration, Congress, and the public in the months to come.

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

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

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

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

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

Three Ways to Begin to End the War on Terror

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

Among the priorities set out in that strategy is one that should — if carried out successfully — be a relief to us all: moving beyond the global war on terror. “The United States should not, and will not, engage in ‘forever wars’ that have cost thousands of lives and trillions of dollars,” the paper states, pointing to ending “America’s longest war in Afghanistan,” as well as the war in Yemen, and helping to end Africa’s “deadliest conflicts and prevent the onset of new ones.”


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These war-on-terror-related goals are not only upbeat but distinctly achievable, if kept at the forefront of the American foreign-policy agenda. To achieve them, however, the institutional remnants of the war on terror would have to be eradicated. And at the top of any list when it comes to that are the lingering war powers granted the president; the authority to commit “targeted killings” via drones in more and more places around the globe; and the existence of that symbol of injustice, the prison established by the Bush administration in 2002 at Guantánamo Bay, Cuba. Eliminating such foundational war-on-terror policies is essential, if we are to move into an era in which national security exists in tandem with the rule of law and adherence to constitutional norms.

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

The AUMFs

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

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

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

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

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

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

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

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

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

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

Targeted Killings

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

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

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

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

Guantánamo

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

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

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

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

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

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

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

Copyright 2021 Karen J. Greenberg

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

Via Tomidispatch.com

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