These past few months, it's grown ever harder to recognize life in America. Thanks to Covid-19, basic day-to-day existence has changed in complicated, often confusing ways. Just putting food on the table has become a challenge for many. Getting doctors' appointments and medical care can take months. Many schools are offering on-line only instruction and good luck trying to get a driver's license or a passport renewed in person or setting up an interview for Social Security benefits. The backlog of appointments is daunting.
Reprinted with permission from TomDispatch
Whether you consider the appalling death toll or the equally unacceptable rising numbers of Covid-19 cases, the United States has one of the worst records worldwide when it comes to the pandemic. Nevertheless, the president has continued to behave just as he promised he would in March when there had been only 40 deaths from the virus here and he said, "I don't take responsibility at all."
Reprinted with permission from TomDispatch
Remember the song "Over There"?
"Over there, over there
Send the word, send the word over there
That the Yanks are coming,
The Yanks are coming,
The drums rum-tumming everywhere..."
Reprinted with permission from TomDispatch.
Last month, Donald Trump retweeted a doctored photo of himself playing the fiddle that was labeled "My next piece is called: nothing can stop what's coming." It was clearly an homage to the Emperor Nero who so infamously made music while Rome burned. To it, the president added this comment: "Who knows what this means, but it sounds good to me!"
Whether Trump is fiddling these days or not, one thing is certain: in a Nero-like fashion, he continues to be irresponsibly unresponsive to the crisis caused by Covid-19. One reason may be that, however inadvertently, the arrival of the pandemic has helped green-light plans and projects he's held dear to his heart and that had, before the crisis, repeatedly encountered opposition.
Reprinted with permission from TomDispatch.
In this fast-paced century, rife with technological innovation, we've grown accustomed to the impermanence of things. Whatever is here now will likely someday vanish, possibly sooner than we imagine. Movies and music that once played on our VCRs and stereos have given way to infinite choices in the cloud. Cash currency is fast becoming a thing of the past. Cars will soon enough be self-driving. Stores where you could touch and feel your purchases now lie empty as online shopping sucks up our retail attention.
The ever-more-fleeting nature of our physical world has been propelled in the name of efficiency, access to ever more information, and improvement in the quality of life. Lately, however, a new form of impermanence has entered our American world, this time in the political realm, and it has arrived not gift-wrapped as progress but unpackaged as a profound setback for all to see. Longstanding democratic institutions, processes, and ideals are falling by the wayside at a daunting rate and what's happening is often barely noticed or disparaged as nothing but a set of passing problems. Viewed as a whole, however, such changes suggest that we're watching democracy disappear, bit by bit.
Plenty of Checks But No Balances
A recent sign of our eroding democratic world was on display earlier this month with the eradication of trust in the impeachment process. Impeachment, of course, was the Constitution's protection against the misuse of power by a president. When all was said and done and the Senate had let Donald Trump off the hook, it was clear enough that the power, the threat, of impeachment had itself been thoroughly hollowed out and made ineffectual.
On both sides of the aisle, senators agreed that the president had erred. Republican Lamar Alexander, for example, thought his actions were "wrong" and "inappropriate"; Republican Joni Ernst believed that he had "mishandled" things; while Rob Portman and Susan Collins, echoing Alexander's sentiments, also labeled his actions "wrong." It made no difference. The four of them like all the other Republican senators except Utah's Mitt Romney had, to say the least, no appetite for removing their party's president from office.
But the real lesson the country should have taken home was this: in the future, it would be foolish to place the slightest hope for protecting democracy in the process that Founding Father James Monroe once described as "the main spring of the great machine of government." Today, no matter the facts, impeachment is dead in the partisan waters, an historical anomaly that's long outlived its time.
The failure of impeachment also brought to light the weakness of the constitutional principle of checks and balances. In theory, when it comes to presidential behavior, Congress and the courts have the power to rein in the chief executive. But in this century, both congressional and judicial restraints have proven anemic. One of the many obvious things highlighted by the recent impeachment acquittal in the Senate is Congress's ultimate ineffectuality when it comes to presidential power.
Donald Trump's unabashed willingness to use his veto power in a fulsome, even autocratic, fashion only underscores this presidential reality. Recently, for instance, he confirmed that he will veto any bill passed by Congress requiring that he consult that body before launching military attacks on Iran. If recent history holds any lesson for us, it's that Trump will do no such consulting, especially given the historic weakness of the War Powers Resolution of 1973. Congress passed it to emphasize the necessity of getting its consent for war, but ever since its inception Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama have all found ways around it.
Meanwhile, when it comes to the courts, Attorney General William Barr has boldly stated his belief that the president's power dwarfs that of the other branches of government. "In recent years," he claimed late in 2019, "both the legislative and judicial branches have been responsible for encroaching on the presidency's constitutional authority." True to his word, Barr has worked to ensure that the Justice Department has barely a scintilla of independence from the president, even as he lamented Trump's public display via tweet of controlling the attorney general and that very department.
Of course, Barr's modest protest about that tweeting rang hollow, given his actions. He played the central role in taking the sting out of the Mueller Report by publicly misrepresenting its conclusions before it was released. His Justice Department endeavored to give blanket immunity from testifying to Congress to individuals close to the president, decreeing that they were not compelled to appear, even when subpoenaed to do so — an assertion overruled by a federal judge but left unresolved in the courts to date.
Barr has also publicly rewritten history to contest, as he put it, the "grammar school civics class version of our Revolution… [as] a rebellion against monarchial tyranny." Instead, he claimed, in making their new system, what the founders really feared was the tyranny of the "prime antagonist," the British legislative body or parliament. And within days of the Senate's acquittal of the president, Barr was once again on the march against obstacles to any presidential assertion of power. He even overruled his own prosecutors in the wake of a tweet by the president, and called for a reduction in the seven-to-nine year sentencing recommendations they were planning to make for presidential pal Roger Stone.
Like the impeachment process, the theory and practice of checks and balances now lies in ruin in a country whose billionaire president has written plenty of checks without balances of any sort. Think of him, in fact, as our very own unfounding father.
Questioning the Legitimacy of the American Election System
Tellingly, the failure of the impeachment process and the collapse of the system of checks and balances have coincided with the onset of the primary season for election 2020. And the anti-democratic virus is visibly spreading in that direction as well. Some Senate Republicans, especially Maine's Susan Collins, tried to hide behind the notion that, thanks to his impeachment, if not conviction, President Trump had "learned" a salutary lesson "from this case." Within 24 hours, however, it was clear that the president had "learned" nothing, except that he could do what he pleased. It was, it turned out, the democratic system that had learned a lesson — and not a good one either.
In the case of the caucuses and primaries, those building blocks of presidential elections, our institutions seem as frail and ineffectual as the impeachment process itself. Failing to produce a discernible result in a timely manner, the future not only of the Iowa caucus but of caucuses in general is now being reconsidered. That caucus has, since 1972, been the first moment in the electoral process. It has also long been questioned, given the way that state ill-represents the diversity of the country. But the catastrophic collapse of this year's version of the Iowa caucus process had nothing to do with issues of diversity and everything to do with interference, incompetence, and finally a disastrous "coding error" in an app.
As the New York Times reported, "the irregularities in the results are likely to do little to restore public confidence in the Iowa caucuses." As a result, its days as first in the nation may indeed be over. In fact, caucuses in general may be headed for the graveyard. As former presidential candidate Julian Castro recently tweeted, the lessons learned in Iowa surpassed that of a single state, revealing instead "that our democracy has been mis-served by a broken system." Even Tom Perez, the head of the Democratic National Committee, has weighed in, supporting a conversation about moving from caucuses to primaries in the remaining caucus states.
Once again, an established democratic institution is poised to be tossed into the trash bin of history.
Not surprisingly, an increasingly errant political process is being reflected in the culture at large. To take but one example: the newspaper candidate endorsement. This year, bizarrely enough, for the first time in its history, the New York Times chose to endorse not one candidate but two (Amy Klobuchar and Elizabeth Warren), a gesture that was tantamount to endorsing no one at all.
The paper's editorial board simply punted, stating that they didn't want to choose between two visions: "Both the radical and the realist models warrant serious consideration. If there were ever a time to be open to new ideas, it is now. If there were ever a time to seek stability, now is it." In fact, their endorsement of "the most effective advocates for each approach" suggested that they were really endorsing a category rather than a specific candidate; namely, a woman. As the last sentence of the piece revealingly stated: "May the best woman win."
The Boston Globe promptly followed suit, rejecting the very idea of a candidate endorsement, despite a 200-year history of providing them. The Globe's editorial board argued instead that the first two states in the primary season — Iowa and New Hampshire — were insufficiently diverse to justify their position in the order of primary states. It was time, they explained, "to call for the end of an antiquated system that gives outsized influence in choosing presidents to two states that, demographically, more resemble 19th-century America than they do the America of today." Essentially, they did what the New York Times had done. They chose to take a stand on an issue rather than on a candidate. Are endorsements, too, no longer a piece of the disintegrating American political process? (A week later, The Las Vegas Sun likewise hedged its bet and endorsed two candidates rather than one; in its case, Joe Biden and Amy Klobuchar.)
The truth is that the very legitimacy of the American electoral system is now in question. Given Russian interference in the 2016 election (verified by a Senate Intelligence Committee report), not to mention reports on the same in the 2020 campaign, the increasing successes of aggressive voter suppression campaigns and lawsuits, and oft-repeated mantras from Donald Trump and his followers about potentially "rigged" elections, doubts aplenty are already afloat about the legitimacy of next November's election results, no matter what happens on the ground.
The Great Unraveling
As 2020 dawns, this erosion of our democratic institutions hardly comes out of the blue. Democratic principles have been visibly eroding since the beginning of this century. As I described in my book Rogue Justice: The Making of the Security State, the build-up in presidential powers began with George W. Bush who, after the 9/11 attacks, claimed that a "unitary" presidency was a more viable form of government than that prescribed by any separation-of-powers doctrine and its promise of checks and balances. Citing a national emergency that September, he would launch his "global war on terror" through a series of secret programs, including an offshore system of torture and injustice that left Congress, the courts, and the American public largely out of the conversation.
In the process, he removed the need for true accountability from the imperial presidency and the administration that went with it. Whether intentionally premising the decision to invade and occupy Saddam Hussein's Iraq on a lie, staunchly refusing to prosecute those who implemented a policy of torture for suspects in the war on terror hatched in the White House and the Justice Department, or allowing a vast, warrantless, secret surveillance program against Americans as well as foreigners after 9/11, the Bush presidency shredded the concept of executive restraint. In the process, it left its unchecked acts on the table for any future president.
Barack Obama chose to "look forward" not back when it came to the CIA's global torture program and continued to run the war on terror under the expansive Authorization for the Use of Military Force passed by Congress in September 2001.In the process, by avoiding accountability for the new version of an imperial presidency, he left the door open for Donald Trump to begin to create what could, in essence, prove to be a system of executive autocracy in this country.
Given the precedents created in the post-9/11 years, it really should be no surprise that President Trump ignores legalities and precedent, while refusing to observe restraints under the guise of security concerns, and expects not to face accountability. In the process, there is no question that the Trump presidency has already taken the template of the untethered executive and its anti-democratic excesses to a new level, simultaneously defying restraints while brazenly purging anyone who might disagree with him.
As Peter Bergen pointed out in discussing his new book, Trump and His Generals: The Cost of Chaos, with the resignations or firings of generals once in top cabinet positions, Trump has succeeded in surrounding himself with "a group of yes-men, a small amount of yes-women, and family members." Indeed, week by week, executive departments are rearranged and re-staffed to fill the administration with those willing to say yes, and only yes, to whatever the president wants.
Thirty-four years ago, Arthur Schlesinger, Jr., described American history as moving in 30-year cycles, alternating between liberal and conservative eras that, over the long haul, kept the Constitution and the country in balance. And indeed, there have been a few glimmers of light on the horizon recently, including a willingness of the courts, for instance, to halt an executive order allowing state and local officials to reject the resettlement of refugees in their communities.
But examples like that are too few and far between to qualify even as serious indicators of a cyclical return to normalcy, while, strand by strand, our democratic fabric is unravelling before our eyes. Unfortunately, Americans have all too often looked the other way as disappearing customs, principles, and institutions threaten to turn fundamental pillars of American democracy into relics from the past, as obsolete as the black-and-white television sets of my childhood.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law, as well as the editor-in-chief of the CNS Soufan Group Morning Brief. She is the author and editor of many books, including Rogue Justice: The Making of the Security State and The Least Worst Place: Guantánamo's First 100 Days. Julia Tedesco contributed research to this article.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer's new dystopian novel (the second in the Splinterlands series) Frostlands, Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.
Copyright Karen J. Greenberg
Lately, I’ve been thinking about the Grimms’ fairy tale Hansel and Gretel. Terrified by cruel conditions at home, the brother and sister flee, winding their way, hungry and scared, through unknown woods. There, they encounter an old woman who lures them in with promises of safety. Instead, she locks one of them in a cage and turns the other into a servant, as she prepares to devour them both.
Written in nineteenth-century Germany, it should resonate eerily in today’s America. In place of Hansel and Gretel, we would, of course, have to focus on girls and boys by the hundreds fleeing cruelty and hunger in Central America, believing that they will find a better life in the United States, only to be thrown into cages by forces far more powerful and agents much crueler than that wicked old woman. In the story, there are no politics; there is only good and bad, right and wrong.
Rather than, as in that fairy tale, register the suffering involved in the captivity and punishment of those children at the U.S.-Mexican border, the administration has chosen a full-bore defense of its policies and so has taken a giant step in a larger mission: redefining (or more precisely trying to abolish) the very idea of human rights as a part of this country’s identity.
This week, Secretary of State Mike Pompeo left no doubt: The reality of those children locked in cages, deprived of the most basic needs, and brazenly abused by the administration he works for has been an essential part of the Trump team’s determination to abandon human rights more generally. That willingness to leave children unprotected is part of a far larger message, not merely an unfortunate byproduct of ill-thought out and clumsy actions by an overwhelmed border police force.
Children in Detention Camps
The story of the children at the border is indeed gruesome. The United States has long had migrants pushing at its southern border, often in larger numbers than at present. In fact, since the 1980s, the numbers crossing that border exceeded one million in 19 different years. While U.S. Customs and Border Protection (CBP) continues to estimate that current immigration rates are on track to exceed one million by September, many other experts don’t think it will even happen this year.
What’s genuinely new with the current border crossings is the number of children among the migrants. According to Acting Secretary of Homeland Security Kevin McAleenan’s sobering recent testimony before the Senate Judiciary Committee, 72 percent of all border enforcement actions in May were associated with unaccompanied children and family units. And while last month the government officially stopped its cruel policy of separating families, leaving many of those children (even toddlers and babies) alone in custody, Vox reports that “at any given time, for the past several weeks, more than 2,000 children have been held in the custody of U.S. Border Patrol without their parents.”
The conditions in the camps, strewn along the U.S. borderlands from Arizona to Texas, are shameful and fall most harshly on those very children. A recent Department of Homeland Security Inspector General report, issued in redacted form just days before the July 4th holiday celebrating the birth of this country as a beacon of “life, liberty and the pursuit of happiness,” described the staggering squalor and danger at such confinement facilities. There, children were often deprived of changes of clothes, beds, hot meals, toothbrushes, soap, showers, even adequate medical attention. Other eyewitness accounts have provided graphic details on the nature and scale of the deprivation, showing us children in soiled diapers, living with the stench of urine, sleeping on concrete floors, many weeping. On the somewhat more civilized floor of the Senate, members were told of children sleeping outside, exposed to the elements, and of the spoiled food at the camps.
Add to this the emotional toll that family separations have wrought on thousands of young people, as a new report issued by the House of Representatives Oversight Committee reveals and as others have documented. An El Paso immigration lawyer visiting one facility, for instance, described seeing a young boy who had scratched his own face until it bled. There are first-hand accounts by visitors to the camps of children trying to choke themselves with the lanyards from their own identification cards and others who dreamed about escaping by jumping out of windows high above the ground.
No wonder at least seven children have died while in such circumstances and many more are suffering from lice, scabies, chickenpox, and other afflictions. Yet when doctors from the American Association of Pediatricians traveled to the camps to offer their help, their services were refused. Michelle Bachelet, the U.N. Commissioner for Human Rights, herself a pediatrician, has labeled the situation of the migrants “appalling” and noted that “several U.N. human rights bodies have found that the detention of migrant children may constitute cruel, inhuman, or degrading treatment that is prohibited by international law.” Others have been less circumspect, explicitly comparing the treatment of the children to torture.
It’s hard not to assume that, however overwhelmed CBP may be, at least some of this treatment is intentional. Why else turn away doctors offering help or refuse supplies of donated aid sent by worried citizens? Why arrest a humanitarian aid volunteer who gave food and water to two ill and desperate undocumented Central American migrants and tried to get them medical help? The administration acknowledges that the overall situation is dire, but its officials on the spot have basically thrown up their hands, complaining that they have been “overwhelmed” by the situation they created, are “not trained to separate children,” and are powerless to address the problem of scarce resources.
While those on the ground have claimed helplessness in the face of the challenge, the rest of the administration refuses even to admit to the appalling conditions. (“They are run beautifully,” said President Trump of the border facilities, blaming the Democrats for any problems there.) Instead, top officials have repeatedly called the disgracefully unacceptable acceptable. Former Department of Homeland Security Secretary Kirstjen Nielsen, who bore responsibility for creating much of the mess, assured Congress that the children were “well taken care of,” claiming that “we have the highest standards.” Former Attorney General Jeff Sessions echoed her words. “The children,” he insisted, “are well cared for. In fact, they get better care than a lot of American kids do.”
In court, Department of Justice lawyer Sarah Fabian refused to admit that the absence of soap, a toothbrush, a bed, and sleep constituted unsafe and unsanitary conditions, the legal standards applying to the detention of migrant children. The U.S. Border Patrol chief for the El Paso region callously remarked, “Twenty years ago, we were lucky if we had juice and crackers for those in custody. Now, our stations are looking more like Walmarts, with diapers and baby formula and all kinds of things, like food and snacks.” Vice President Mike Pence highlighted the refusal to acknowledge reality recently by calling the two camps he visited, neither solely for children, but one housing families, examples of “compassionate care… care that every American would be proud of.”
Really? In whose world are filth, disease, and persistent emotional cruelty acceptable? In what America is the brutal incarceration of children not a violation of founding principles? In what America is rejecting the advances in protections that have been a hallmark of U.S. and international policy since the Second World War standard operating procedure? Since when do American officials just throw up their hands and declare defeat (as a kind of victory of cruelty) rather than muster their best talents, energies, and resources to confront such a problem? The answer, of course, is in Donald Trump’s America. And don’t for a moment think that this is just a matter of the piling up of unintended consequences. It’s not.
A Declaration of Inhuman Rights
Recently, Secretary of State Mike Pompeo offered some insights into the mindset of such an administration when it comes to the country’s longstanding embrace of the very idea of human rights. Soon after July 4th, he announced the creation of a new Commission on Unalienable Rights at the State Department. Its purpose, he claimed, was to rethink the spread of human rights protections as a part of American foreign policy. The very idea of rights, Pompeo insisted, had spun out of control. “Human-rights advocacy has lost its bearings and become more of an industry than a moral compass,” he said, wagging his finger at 70 years of history. “‘Rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.”
Rather than expand rights further, he explained, the country would do well to return to (his idea of) the context of the founding fathers and explore just what they really meant in their classic writings. Essential to his goal, experts suggested, was rolling back abortion rights. A remarkable number of the commission members were, in fact, known for their anti-abortion positions and this should have surprised no one, since the State Department had already withdrawn all health assistance from international organizations that offer abortion counseling and care. In doing so, it expanded what, in administrations, were more modest restrictions on abortion-related care. Striking as such a global anti-abortion-rights position might be, however, Pompeo’s urge seems far grander. His goal is evidently to unilaterally reject the evolution of human rights that has prominently defined the country since the post-World War Two era, and that has been an essential piece of American democratic rhetoric since its founding.
To begin the process, Pompeo promptly misappropriated the very language of the Declaration of Independence to promote an agenda explicitly calling for the removal of rights. “My hope,” he announced, “is that the Commission on Unalienable Rights will ground our understanding of human rights in a manner that will both inform and better protect essential freedoms — and underscore how central these ideas are not only to Americans, but to all of humanity.” As the rest of his comments showed, he was invoking the freedom to deprive others, exclude others, and cause hardship for others. Placed alongside the border realities, it was a testament to the administration’s determination to erase rights from the nation’s identity. Putting a fine point on his goals, Pompeo added that, in his view, human rights and democracy were distinctly in opposition to each other. As he pungently put it, “Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.”
Pompeo’s attempt to recast the founders’ intent in the context of today’s cruelty may be the most full-throated articulation to date of what this administration has been up to. The ongoing mistreatment of children at the border, a story that has lasted for well over a year, suggests that the spirit of Pompeo’s Declaration of Inhuman Rights has long been on the agenda. He had one thing right, however: Those border camps do seem to belong to another place and time, one that preceded the U.N.’s 1948 Universal Declaration of Human Rights, another document he invoked, intending to reshape American adherence to it.
The New Status Quo
This is hardly the first time the Trump administration has revealed its cynicism over democracy. Redefining the very purpose of “liberal democracy,” as I wrote more than a year ago, had been part of its mission since the beginning. In its first 18 months, the administration removed the language of democracy from the mission statements of many of its departments, including the phrase “nation of immigrants” from that of the U.S. Citizenship and Immigration Services. Still, after two and a half years of reorienting the executive branch of government away from equal protection under the law, the equal right to vote, and a respect for the very idea of welcoming immigrants, Pompeo’s “commission” may be the most brazen conceptual act yet when it comes to erasing the language of human rights from the country’s identity.
It’s in this still-developing context that the migrant children crisis should be understood. It should be seen as a graphic version of the insistence of this administration on changing the very meaning of “life, liberty and the pursuit of happiness” in the modern age. For Pompeo (as for his president), the evolution of the country towards more rights for more people is nothing but a mark of shame. How far back would he take us? To before the Civil War?
No wonder, on learning each day’s news from the border, it’s easy to feel we’ve entered a dismal fairy tale from an age of ogres and witches, where the forces of evil and ill will have taken charge and the prospect of saving helpless children seems as irretrievably long gone as those crumbs eaten by the birds following Hansel and Gretel on their grim journey into the witch’s lair. Attacking the most vulnerable among us — infants, toddlers, young children, teens — leaves little room for doubt. This administration is determined to undo the country’s commitment to human rights and so change its identity in a way that should concern us all.
Reprinted with permission from TomDispatch.
The Nobel Prize-winning Czech author Milan Kundera began his 1979 novel, The Book of Laughter and Forgetting, by describing two photographs. In the first, two men are standing side by side, a Czech nationalist later executed for his views and the country’s Communist ruler. In the second, the dissenter is gone, airbrushed out. Just the dictator remains. Today, if Kundera hadn’t written that opening to his book, only someone with a long memory or a penchant for research would know that the two men had ever shared a podium or that, on that long-gone day, the dissident had placed his fur hat on the dictator’s cold head. Today, in the world of Donald Trump and Robert Mueller, we might say that the dissident was redacted from the photo. For Kundera, embarking on a novel about memory and forgetting, that erasure in the historical record was tantamount to a crime against both the country and time itself.
In the Soviet Union, such photographic airbrushing became a political art form. Today, however, when it comes to repeated acts meant to erase reality’s record and memory, it wouldn’t be Eastern Europe or Russia that came to mind but the United States. With the release of the Mueller report, the word “redaction” is once again in the news, though for those of us who follow such things, it seems but an echo of so many other redactions, airbrushings, and disappearances from history that have become a way of life in Washington since the onset of the Global War on Terror.
In the 448 pages of the Mueller Report, there are nearly 1,000 redactions. They appear on 40% of its pages, some adding up to only a few words (or possibly names), others blacking out whole pages. Attorney General William Barr warned House Judiciary Committee Chairman Jerry Nadler (D-NY) about the need to classify parts of the report and when Barr released it, the Wall Street Journal suggested that the thousand unreadable passages included “few major redactions.” On the other hand, House Appropriations Committee Chairwoman Nita Lowey was typical of congressional Democrats in suggesting that the speed — less than 48 hours — of Barr’s initial review of the document was “more suspicious than impressive.” Still, on the whole, while there was some fierce criticism of the redacted nature of the report, it proved less than might have been anticipated, perhaps because in this century Americans have grown used to living in an age of redactions.
Such complacency should be cause for concern. For while redactions can be necessary and classification is undoubtedly a part of modern government life, the aura of secrecy that invariably accompanies such acts inevitably redacts democracy as well.
Redaction, like its sibling deletion, is anything but an unprecedented phenomenon when it comes to making U.S. government documents public. My generation, after all, received the Warren Commission Report on the assassination of President John F. Kennedy with significant redactions in the very records on which it was based. And who among us could forget that infamous 18-and-a-half minute gap in the tapes President Richard Nixon secretly used to record Oval Office conversations? That particular deletionwould prove crucial when later testimony revealed that it had undoubtedly been done to hide evidence connecting the White House to the Watergate
Still, even given such examples, the post-9/11 period stands out in American history for its relentless reliance on redacting material in government reports. Consider, for instance, the 28 pages about Saudi Arabia that were totally blacked out of the December 2002 report of the Joint Congressional Inquiry into the failure to prevent al-Qaeda’s attacks that fateful day. Similarly, the 2005 Robb-Silberman Report on Weapons of Mass Destruction, classified — and therefore redacted — entire chapters, as well as parts of its chief takeaway, its 74 recommendations, six of which were completely excised.
Infamously enough, the numerous military reports on the well-photographed abuses that American military personnel committed at Abu Ghraib, the Iraqi prison, came out with substantial redactions. So, too, have the reports and books on the CIA’s use of enhanced interrogation techniques on war on terror detainees held at its “black sites.” In FBI agent Ali Soufan’s book, The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda, for example, large portions of a chapter on Abu Zubaydah, an al-Qaeda figure who was brutally waterboarded 83 times, were redacted by the CIA. It mattered not at all that Soufan had already testified in a public hearing before Congress about his success in eliciting information from Zubaydah by building rapport with him and registered his protest over the CIA’s use of brutal techniques as well. And the nearly 400-page executive summary of the extensive Senate Select Intelligence Committee’s Torture Report was partially redacted, too, even though it was already a carefully chosen version of a more than 6,700-page report that was not given a public airing.
It’s worth noting that such acts of redaction have taken place in an era in which information has been removed from the public domain and classified at unprecedented levels — and unacceptable ones for a democracy. In the first 19 years of this century, the number of government documents being classified has expanded exponentially, initially accelerating in the immediate aftermath of 9/11. Between 2001 and 2005, for instance, the number of government documents classified per year doubled. Even former New Jersey Governor Tom Kean, chairman of the 9/11 Commission, pushed back against the growing urge of the national security state to excessively classify — that is, after a fashion, redact — almost any kind of information. “You’d just be amazed at the kind of information that’s classified — everyday information, things we all know from the newspaper,” he said. “We’re better off with openness. The best ally we have in protecting ourselves against terrorism is an informed public.”
Along the same lines, well-known judges in national security cases have repeatedly commented on the way in which information that, to their minds, did not constitute sensitive material was classified. For example, Judge T.S. Ellis III, who has overseen numerous high-profile national security cases, admitted his “firm suspicion that the executive branch over-classifies a great deal of material that does not warrant classification.” Ellis’s colleague, Judge Leonie Brinkema, underscored the obstacles classification imposed in the trial of now-convicted terrorism defendant Zacarias Moussaoui, expressing her frustration at the “shroud of secrecy that had hampered the prosecution of the defendant.” Other judges have echoed their sentiments.
In the first days of his presidency, Barack Obama declared his intention to reverse the trend towards over-classification. His administration then issued a memo, “Transparency and Open Government,” that promised “an unprecedented level of openness in government.” In April 2009, he also ordered the release of the 2002-2005 memos from the Office of Legal Counsel that had been written to justify the “enhanced interrogation techniques” that President George W. Bush’s top officials had put in place for use in the Global War on Terror. In 2010, Obama also signed into law the Reducing Over-Classification Act aimed at decreasing “over-classification and promot[ing] information sharing across the federal government and with state, local, tribal, and private sector entities.” And for a time, the rate of classification of new documents did indeed drop.
In the end, though, it proved impossible to stanch, no less reverse the urge to keep information from the public. As Obama explained, “While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security.”
Another government tactic that, as with former FBI agent Soufan’s book, has given redaction a place of pride in Washington is the ongoing strict pre-publication review process now in place. Former public servants who worked in intelligence and other positions requiring security clearances (including former contractors) and then wrote books about their time in office must undergo it. In April, the Knight First Amendment Institute and the ACLU focused on this very issue, jointly filing suit over the pre-publication review of such books, citing, among other things, the First Amendment issue of suppressing speech. In the words of Harvard law professor Jack Goldsmith and Yale law professor Oona Hathaway:
“Clearly, the government has a legitimate interest in preventing disclosure of classified information. But the current prepublication review process is too expansive, slow, and susceptible to abuse… In an era characterized by endless war and a bloated secrecy bureaucracy, the restrictions on commentary and criticism about government policies and practices pose an intolerable cost to our democracy.”
And bad as the urge to redact has been, in recent times the Trump administration and the national security state have taken its spirit one step further by trying to prevent the actual reporting of information. In March, for instance, President Trump issued an executive order revoking the need for the Pentagon to make public its drone strikes in the war on terror or the civilian casualties they cause. In a similar fashion, the American military command in Afghanistan announced its decision to no longer report on the amount of territory under Taliban control, a metric that the previous U.S. commander there had called the “most telling in a counterinsurgency.” Similarly, President Trump has repeatedly displayed his aversion to any kind of basic note taking or record-keeping during White House meetings with aides and lawyers (as the Mueller Report pointed out).
In this century, the American public has learned to live in an increasingly redacted world. Whether protest over the level of redactions in the Mueller report will in any way change that remains doubtful, at best.
Certainly, Nadler has been insistent that the Judiciary Committee should see the entire unredacted report. At the recent Judiciary Committee hearing that Attorney General Barr refused to attend, the Judiciary chair acknowledged the dangers to democracy that lie in an increasing lack of transparency and accountability. “I am certain,” he said, “there is no way forward for this country that does not include a reckoning of this clear and present danger to our constitutional order… History will judge us for how we face this challenge. We will all be held accountable in one way or another.”
As he suggested, democracy itself can, in the end, be redacted if the culture of blacking-out key information becomes Washington’s accepted paradigm. And with such redactions goes, of course, the redaction of the very idea of an informed citizenry, which lies at the heart of the democratic way of life. Under the circumstances, perhaps it’s not surprising that polls show trust in government in steady decline for decades (with a brief reversal right after 9/11).
In the end, blacking out the record of the grimmest aspects of our own recent history will leave American citizens unable to understand the country in which they live. Informed or not, we all share responsibility for the American future. As with that photograph in the Kundera novel, our children may one day see the consequences of our past acts without truly recognizing them, just as many Czechs who saw that photo Kundera described undoubtedly thought it represented reality.
The record of how democracy is being redacted — sentence by sentence, passage by passage, fact by fact, event by event — would surely have rung a bell with Milan Kundera. He summed his own time’s version of the process this way: “The struggle of man against power is the struggle of memory against forgetting.” Today, Americans are forgetting.
Karen J. Greenberg is the director of the Center on National Security at Fordham Law and editor-in-chief of the CNS Soufan Group Morning Brief. She is the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Julia Tedesco helped with research for this article.
Reprinted with permission from TomDispatch.
It turns out that walls can’t always be seen. Donald Trump may never build his “great, great wall,” but that doesn’t mean he isn’t working to wall Americans in. It’s a story that needs to be told.
This past month, for instance, claims of ISIS’s near total defeat in Syria have continued to mount. As a result, numerous foreigners who had traveled there to fight for, or support, the caliphate have appealed to their home countries to take them back, presumably to stand trial for their support of terrorism. Germany, Great Britain, New Zealand, and other nations have crafted responses that vary from lukewarm acceptance to outright denial of their citizenship status.
On that score, Donald Trump’s White House hasn’t just led the way, but has used the occasion to put yet more concrete and steel into the great wall his administration has been constructing around the very idea of what it is to be an American. Here in the United States, where the Statue of Liberty has been a welcoming beacon for more than a century, the Trump administration’s response has not just been a fierce aversion to the return of such people, but the use of one of them to help redefine ever more narrowly the very idea of citizenship, of who belongs to this country. In the rejection of the citizenship of a former ISIS bride with child, the president and his advisors have, in an unprecedented way, refused to uphold the rights of U.S.-born citizens, let alone naturalized ones.
Get Out and/or Stay Out
Donald Trump arrived in the Oval Office with an expressed desire to take an axe to the lawful notion of citizenship as either a right or a promise. In the first days of his presidency, he promptly began reducing the number of individuals who might someday be eligible for U.S. citizenship with a Muslim ban against the arrival of anyone from seven largely Muslim countries. During those first days in power, the president also issued an executive order aimed at specifically reducing the number of refugees from Syria who could enter the country, even as he actively advocated for the building of his great wall on our southern border to keep out Mexicans and Central Americans.
But walling Americans in and keeping others out proved only to be a starting point for the most xenophobic president the country had elected in at least a century. On becoming president, Trump made it crystal clear that he meant to reduce the number of non-citizens already living here as well. Yet another of his early executive orders was aimed at rounding up and deporting illegal immigrants who had been in this country, often for decades.
His promise and initial plan, never implemented, was to eliminate the prospect of future citizenship not just for undocumented immigrants already here, but for their children born here who, under the law, were certainly U.S. citizens. And he was true to his word. Over 2017 and 2018, he deported nearly half a million individuals who had come here illegally, many of whom had, until then, lived productive lives in this country for years, if not decades. So, too, he continued to threaten DACA, or “dreamers” program, designed to provide undocumented immigrants who arrived as children with protection against deportation. When it comes to that program, his intent is crystal clear, even if the courts and Congress have slowed him down so far.
Meanwhile, he also turned to naturalized citizens. On them, the Fourteenth Amendment is clear. It grants citizenship to all persons “born or naturalized in the United States andsubject to the jurisdiction thereof.” Under U.S. law, denaturalization can occur only in certain situations, such as if an individual lies on his or her application for citizenship or due to bad conduct — such as membership in a terrorist organization or an other-than-honorable discharge from the armed forces — in the first five years of citizenship.
During Trump’s presidency, there has been an all-out effort to find and prosecute such cases. Between 1990 and 2017, according to the National Immigration Forum, the Department of Justice filed an average of 11 cases of this sort a year. In 2017, that number more than doubled, and 2,500 new investigations were reportedly opened. In June 2018, the DHS even announced plans to create a new office in southern California, whose focus would be uncovering cases ripe for denaturalization.
From undocumented immigrants and asylum seekers to refugees, DACA kids, and naturalized citizens, the pattern has been evident and the message the same: “Get out and/or stay out.” Despite a powerful xenophobic period early in the twentieth century, this attitude has hardly been the essence of a country that, for most of its history, has welcomed strangers and given hope to those in search of safety, security, and the rights and liberties of America’s promise.
No longer. In September 2017, using an American foreign fighter designated as John Doe, the administration went after the concept of dual citizenship, too. Doe had been captured by Kurdish militia in Syria and was then handed over to U.S. forces in Iraq. A dual U.S.-Saudi citizen, he was not brought to this country to be investigated and possibly tried, but secretly held in military detention in Iraq, while being denied access to a lawyer. When the news of his detention was leaked to the media, lawyers at the ACLU filed a habeas corpus petition challenging it. The courts then put limitations on the government’s plan to transfer this citizen to a third country. Finally, he was reportedly released to Bahrain to join his wife and daughter.
The Ultimate Slippery Slope
Recently, a providential ISIS case has allowed the Trump administration to turn more directly to the denial of citizenship for those born in this country.
Two weeks ago, lawyers representing a young U.S.-born woman, Hoda Muthana, filed papers in the District of Columbia on behalf of her father, challenging the administration on her fate. She had traveled to Syria in 2014, had become an ISIS bride, had borne a child, and now is asking to return to the United States with her son. The Trump administration has barred her from doing so, denying that she is even a citizen, despite the fact that she was issued U.S. passports in 2005 and again in 2014 and is the citizen of no other country. The government’s decision is based on the false claim that, though she was born in New Jersey, her father was then still a Yemeni diplomat serving in the U.S. on a diplomatic visa. Muthana, her family, and her lawyers dispute this claim, correctly insisting that she was born after his visa had ended. At that time, her mother, they also point out, was a legal permanent resident.
At the age of 20, Hoda Muthana, brought up in Alabama, was reportedly radicalized by ISIS online. She then took the money her parents had provided for tuition at the University of Alabama and absconded to Syria. Her goal: to become an ISIS bride. She married an ISIS fighter and bore him a son. When her husband was killed, she married another fighter, and yet another after his death. Online, she promoted violent acts in the U.S. and elsewhere on behalf of ISIS. “Go on drive bys, and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriots, Memorial, etc. day… Kill them,” she tweeted.
Muthana is now living in a Kurdish displaced-persons camp in Syria where, she claims, she has seen the error of her ways and, on return, is willing to take her chances in a court of law. Thirteen other foreign fighters from the U.S. have already returned home to face trial. In denying her citizenship, however, the Trump administration is obviously using a distinctly unpopular figure, a willing former Islamist terrorist, to strike at the very heart of the idea of citizenship. Depending on how her case is decided in courts that are increasingly filled with judges chosen by President Trump, it could change the way the government handles citizenship for the U.S.-born; and as citizens are at the top of the pyramid, it could strike yet a stronger blow against those with lesser guarantees under the law who are now distinctly in Donald Trump’s sights.
Muthana does not hold dual nationality, which means that any withdrawal of her citizenship would actually violate international law as the Geneva Conventions specify that no person can be rendered stateless by the revocation of his or her citizenship.
In other words, the attempt to block Hoda Muthana’s return represents a potentially giant step by the Trump administration, setting a precedent that could weaken the formerly sacrosanct idea of citizenship in the United States. Consider this the ultimate slippery slope, one that could, over time, transform both the image, and the reality, of what it means to be an American.
Will the Statue of Liberty Be Denied Citizenship?
Halfway through Trump’s presidency, his administration has also moved to use citizenship as an exclusionary factor in other ways, continuing to craft a new, ever more restrictive vision of what it means to be an American. His team has proposed, for example, adding a “citizenship” question to the U.S. Census, taken every 10 years, in hopes of depressing the count of immigrants who are not yet citizens. That, in turn, could change the way political power and federal funding are distributed, reducing voting rights and potentially the number of congressional representatives in a handful of key states, including Arizona, California, Florida, Illinois, New York, and Texas, where the majority of undocumented immigrants reside.
Sued for this proposal on constitutional and procedural grounds, the government lost at the district level in federal court. As U.S. District Court Judge Jesse Furman stated, the attempt to add the citizenship question was “arbitrary and capricious,” as well as “unlawful for a multitude of independent reasons.” Moreover, Furman said, Commerce Secretary Wilbur Ross and his aides “tried to avoid disclosure of, if not conceal, the real timing and the real reasons for the decision to add the citizenship question.” (The Supreme Court is scheduled to hear the case during its spring 2019 term.)
The United States is hardly alone in reconsidering the nature of citizenship in a world where the populist right is obviously on the rise, at least not when it comes to those foreign fighters for ISIS. The German government recently decided that such fighters with dual citizenship will, in the future, lose their German citizenship. New Zealand has agreed to take back an ISIS fighter, recognizing that rendering a person stateless is a violation of the Geneva Conventions. Great Britain has stripped citizenship from several individualsaccused of terrorism or ISIS affiliations, something at least theoretically permissible under the law there (as it is not in the U.S.). And Belgium just decided to revoke the citizenship of two women who joined the Islamic State, while accepting the citizenship of their six children.
In several countries, the conversation is not limited to foreign fighters. A report by the Center for Migration Studies, for instance, concludes that recent actions taken by the Australian, Canadian, and British governments illustrate a troubling expansion of a trend in which the revocation of citizenship is a response to transnational terror threats.
In its urge to build walls of every sort, seen and unseen, however, the Trump administration has taken the global lead in creating a world in which citizenship will be ever more narrowly defined. The Statue of Liberty has stood in New York harbor for well over a century. If President Trump succeeds in his assault on citizenship as an inclusive, irremovable right, then Lady Liberty will find herself, like Ellis Island, a mere reminder of another world, of a lost America, a country that once was a beacon of hope for those fleeing oppression. Perhaps it will even be sent back to France.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and editor-in-chief of the CNS Soufan Group Morning Brief. She is the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Julia Tedesco helped with research for this article.
Copyright 2019 Karen J. Greenberg
IMAGE: A plane is seen during take off in New Jersey behind the Statue of Liberty in New York’s Harbor as seen from the Brooklyn borough of New York February 20, 2016. REUTERS/Brendan McDermid/File Photo
Reprinted with permission from Tomdispatch.
Halfway through 2018, MSNBC’s Mika Brzezinski hurled a mother-to-mother dagger at Ivanka Trump. How, during the very weeks when the headlines were filled with grim news of child separations and suffering at the U.S.-Mexico border, she asked, could the first daughter and presidential adviser be so tone-deaf as to show herself hugging her two-year-old son? Similarly, six months earlier, she had been photographed posing with her six-year-old daughter in the glossiest of photos. America had, in other words, found its very own Marie Antoinette, gloating while others suffered. “I wish,” Brzezinski tweeted at Ivanka, “you would speak for all mothers and take a stand for all mothers and children.”
The problem, however, wasn’t just the heartlessness and insensitivity of the first daughter, nor was it simply the grotesque disparity between those mothers on the border and her. The problem was that the sensibility displayed in those photos — that implicit we-are-not-them exceptionalism — was in no way restricted to Ivanka Trump. A subtle but pervasive sense that this country and its children can remain separated from, and immune to, the problems currently being visited upon children around the world is, in fact, widespread.
If you need proof, just watch a night of television and catch the plentiful ads extolling the bouncy exuberance of our children — seat-belted into SUV’s, waving pennants at sports events, or basking in their parents’ praise for doing homework. If you think about it, you’ll soon grasp the deep disparity between the image of children and childhood in the United States and what’s happening to kids in so many other places on Earth. The well-ingrained sense of exceptionalism that goes with such imagery attests to a wider illusion: that the United States can continue to stand apart from the ills plaguing so much of the world.
In truth, the global reality of children in crisis may be the most pressing issue we as a nation need to confront if we are ever to understand that global ills can’t be kept eternally outside our borders, not with first-daughter hugs, not with a self-centered version of tunnel vision, not even with a “great, great wall.”
From north to south, east to west, children around the world are suffering, increasingly unsafe, and preyed upon in ever larger numbers. For years now, their deaths from disease, deprivation, starvation, and conflicts of every sort have been on the rise. They are increasingly fodder for weapons of war. This is the case, disturbingly, for countries in which the United States has been deeply involved in its post-9/11 global war on terror, which over the last 17 years has unsettled a significant part of the planet and badly affected children in particular.
In the first three-quarters of 2018, for instance, 5,000 children were reportedly killed or maimed in war-torn Afghanistan where the U.S. still has 14,000 troops and countless private contractors. Save the Children estimatest hat up to 85,000 children under the age of five may have died of starvation in a Yemen being torn apart by civil war and, according to the U.N. Committee on the Rights of the Child, at least 1,248 children have been killed and as many wounded in U.S.-backed Saudi air strikes there since 2015.
By the end of 2017, at least 14,000 children had been reported killed in the war in Syria, “by snipers, machine guns, missiles, grenades, roadside bombs and aerial bombs.” In addition, as journalist Marcia Biggs showed in an award-winning PBS NewsHour special, vast numbers of children have been maimed and, having lost limbs, struggle to live with (or without) prosthetics, while their schools have been reduced to rubble.
Nor is such devastation limited to the Middle East. According to UNICEF, 22,000 children die daily worldwide due to starvation. In Africa, violence and hunger threaten children in increasing numbers. In the Democratic Republic of Congo, millions of children are reportedly “at risk of severe acute malnutrition.”
The Making of a Lost Generation
When it comes to children, those who survive the rigors of our present world often find themselves homeless, stateless, and parentless. The U.N. refugee agency, UNHCR, reports that the number of displaced people, both those who have fled across national boundaries as refugees and those still in their own countries, reached a staggering 68.5 million by the end of 2017. According to UNICEF, nearly half of that displaced population are children, an estimated 30 million of them. Many of those children are starving, without access to medical care or basic human needs like toilets and clean water, not to speak of schools or a future. Surprising numbers of them, as in Iraq, are in refugee or internal displacement camps. As Ben Taub points out, reporting for the New Yorker on post-ISIS Iraq, many such children have “been abandoned or orphaned by the war.”
In addition, living in areas torn by violence and warfare, those children have often witnessed atrocities on a mass scale. Inside and outside the camps where so many of them are now living, youngsters are subject to rape, violence, and abuse. In Syria, Yemen, Iraq, and Afghanistan, among other places, such children have sometimes had siblings and parents killed right before their eyes. According to Taub, those in Iraq who are suspected of having relatives in ISIS, or an affiliation with ISIS, are often brutally punished or even executed. Human Rights Watch reports that the security services in Iraqi Kurdistan are using “beatings, stress positions, and electric shock on boys in their custody” between the ages of 14 and 17 in order to elicit confessions about ties to ISIS.
In a brilliant and searing new documentary, ISIS, Tomorrow: The Lost Souls of Mosul, filmmakers Francesca Mannocchi and Alessio Romenzi report on children who survived three years of Islamic State rule in that Iraqi city, significant parts of which now lie in ruins. Many of them are presently held in camps that are, in Taub’s term, “de facto prisons,” along with other alleged family members of ISIS fighters. The filmmakers document the psychological scars of being held in such places, as well as of having been subjected to the indoctrination and training offered by ISIS. Having been brutalized, they are full of anger and the desire for revenge. As one young man in the film declares, “May God do the same to them as they did to us.”
In other words, in Iraq and elsewhere across the Greater Middle East and parts of Africa, new generations of terror and suffering are already in the offing as the terrorized children of the present nightmares grow up.
Mia Bloom, co-author of the forthcoming book Small Arms: Children and Terrorism, suggests that the authorities in such lands should focus on creating “a multi-pronged approach that addresses the psychological trauma suffered by the children from watching executions, in addition to the effects of having participated in acts of violence.” Many in the human rights community agree with her. In the harsh conditions of those countries, wracked by conflict and collapse, however, theirs is but a dream.
In reality, such children are regularly ostracized as permanent enemies of the state. They are, as Taub, Mannocchi, and Romenzi show, a lost generation in the most literal sense of the term and that loss will, in the end, affect us all.
And no end is in sight when it comes to the damaging, and then further use, of those damaged young people. Quite the opposite, the cycle of violence is only being strengthened, thanks to an uptick in the recruitment of children for warfare. In Yemen, Sudan, and Libya, for example, the recruitment of child fighters has been on the rise for several years. Meanwhile, to carry on their war in Yemen, the Saudis have also been recruiting — quite literally, buying, in fact — soldiers from the Sudan, “desperate survivors of the conflict in Darfur.” Many of them are, reportedly, teenagers as young as 14.
And such recruitment is in no way confined to the Greater Middle East. In Somalia and Ukraine, for example, alarming reports of child recruits have recently come to light. In Ukraine, children as young as eight years old are being trained to shoot to kill and desensitized to the act. CBS News recently quoted one of their adult trainers this way: “We never aim guns at people. But we don’t count separatists, little green men, occupiers from Moscow, as people. So we can and should aim at them.”
Such attempts to prey upon adrift, often hungry, and desperate young people in an effort to have yet more arms at the ready is a prescription for long-term global violence. And terror groups don’t hesitate to use the young either. In her work on children recruited into such wars, for instance, Bloom notes that the Nigerian terror group Boko Haram is notorious for using young girls on suicide missions, while, in the wake of its rise in 2014, ISIS recruited“hundreds, if not thousands, of children for military engagement.” So, in fact, has the Taliban in Afghanistan.
Childhood, a Wasting Asset
Make no mistake: in the long run, the United States will not remain untouched by such violence. Unfortunately, in this century American officials and policymakers have remained convinced that the only way this country can be protected against the turmoil and chaos engulfing the larger world is via a military-first foreign policy. As Senator Lindsey Graham recently put it, in the wake of President Trump’s decision to withdraw U.S. forces from Syria, “I want to fight the war in the enemy’s backyard, not ours. That’s why we need a forward-deployed force in Iraq and Syria and Afghanistan for a while to come.” In this, he caught the spirit of an approach embraced by so many in the Bush and Obama administrations, even as American forces continued to unsettle those other “backyards” in significant ways.
As the first 18 years of this century have shown, reality defies this false sense of security, which contends that it is possible to keep the problems of our world at arm’s length. As the 9/11 attacks should have shown us, in a global age of communications, travel, trade, and the delivery of the weapons of war, the spawning of a homeless, stateless, angry generation is guaranteed to create unbearable future problems, even here in the United States. The only way to limit such future damage isn’t the walling off of America, but some kind of compassionate attention to those young people now.
When it comes to creating bitter futures, the Trump administration’s treatment of children at the border is of a piece with the larger global attack on them. While on a smaller scale than in the Greater Middle East and beyond, acts against the young at our southern border certainly should evoke their counterparts elsewhere. In December and January, for example, the first deaths of children were recorded at American border detention centers.
In addition, widespread neglect and obvious acts of cruelty continue to define those centers. Tots are left in soiled diapers and otherwise unsanitary conditions, while children of all ages are often separated from their mothers and fathers, initially housed in bitterly cold jail-like conditions, and terrified about what might lie in store for them and their parents. Recently, a video of workers slapping, pushing, and dragging around young immigrants at a detention center run by Southwest Key Programs in Arizona was made public. Similarly, a jury found guilty the first of two Southwest Key employees charged with sexually abusing children (at two of that company’s centers) last September.
And the mistreatment of immigrant children on the border is just a sign of the times. Among U.S. citizens, there is trouble as well. In an ever more unequal society, 21% of children in this country now live below the official poverty line, a rate that is the highest among the world’s richest countries. In 2009, a Department of Justice report found that more than 60% of American children witnessed or were the targets of violence “directly or indirectly.” Won’t such abuse lead to a version of the resentment, anger, and damage that the rest of the world is struggling to contain? In the words of the Department of Justice, “Children’s exposure to violence… is often associated with long-term physical, psychological, and emotional harm” and can lead to a “cycle of violence.”
Giving up on those children and turning a blind eye to the harm being visited on them is a formula for disaster not just in the world but at home as well. In fact, such children should become a far more important American priority than so many of the other national security expenditures we now regularly fund without a second thought. Isn’t it time for the United States to set some other kind of example for the rest of the world than those terrible detention centers in our southern borderlands? Shouldn’t Washington make the rescue of children a global priority and pioneer new ways to help them regain viable lives? (A first step in that direction might be to create an ambassadorship for the world’s children as a way to attest to an American refusal to give up on childhood in this or any other generation.)
For her part, Ivanka Trump could start posing with refugee children, ones seeking asylum, or even American children suffering from poverty, neglect, and violence and so send quite a different Instagram message to the world — namely, that childhood is precious and needs to be protected everywhere.
Admittedly, in the Trump years, this will remain a fantasy of the first order. But keep in mind that to ignore the global crisis of childhood will someday bring it home to roost here, too. We-are-not-them exceptionalism will, in the end, prove just another kind of fantasy. In the meantime, as legal expert Jason Pobjoy notes in his book The Child in International Refugee Law, “Childhood is a wasting asset — there are no second chances.”
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and editor-in-chief of the CNS Soufan Group Morning Brief. She is the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Julia Tedesco helped with research for this article.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer’s new dystopian novel (the second in the Splinterlands series) Frostlands, Beverly Gologorsky’s novel Every Body Has a Story, and Tom Engelhardt’s A Nation Unmade by War, as well as Alfred McCoy’s In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower’s The Violent American Century: War and Terror Since World War II.
Copyright 2019 Karen J. Greenberg
Reprinted with permission from Tomdispatch.
Amid the emotional hubbub over the predictable confirmation of Brett Kavanaugh, there has been a largely overlooked casualty: the American judiciary. It’s not the end result alone — his addition to the highest bench in the land where he will sit for life — that promises to damage the country, but the unprofessional, procedurally irresponsible way his circus-like hearings were held that dealt a blow to the possibilities for justice in America, a blow from which it may prove hard to recover.
Senator Susan Collins acknowledged the damage the hearings wrought, even if she misunderstood the cause. Delivering her massively disappointing decision to vote yes on Kavanaugh, Collins reflected on what she saw as the passion that overrode the presumption of innocence and expressed “worry” that such behavior would lead to “a lack of public faith in the judiciary.” Though wrong in blaming the Democrats for those passions, her conclusion was otherwise spot on. This confirmation has underscored and enhanced the fragility of justice in America, at least as a reflection of law, decency, honesty, transparency, and fairness.
Surprising as this derailment of justice might have seemed, it echoed (and may, in fact, have reflected) another long-unspooling twenty-first-century American degradation of justice. The proceedings created to try those terrorism suspects locked away in the offshore detention center at GuantánamoBay, Cuba, pivoted away from many of the country’s legal and moral principles (a subject to which I’ll return).
But as a prelude to understanding the harm that the Kavanaugh confirmation process caused, think for a moment about the fundamental premises underlying the Supreme Court and so the American judiciary. The Founding Fathers envisioned it as a body chaired by judges whose professional responsibility was, as Alexander Hamilton wrote in Federalist No. 78, to be “faithful guardians of the Constitution.” Toward that end, the Court was to stand independent from politics and the other two branches of government. That idea of judicial independence was, in the oft-quoted words of Chief Justice William Rehnquist, “one of the crown jewels of our system of government.”
It’s apparent that both Kavanaugh and the committee before which he testified betrayed the goals of justice laid out in that foundational period by violating several major elements of judicial reasoning and procedure. In the process, they helped introduce Gitmo-style justice to the American legal system. Below are four ways in which the committee compromised longstanding aspects of American jurisprudence and justice.
Through it all, both supporters and opponents of Kavanaugh claimed that his congressional hearings did not constitute the equivalent of a courthouse. Not true. Throughout those proceedings, the Senate was, in fact, turned into a quasi-courthouse in which legislators could pick and choose just which kinds of procedures they cared to use, while conveniently banishing or ignoring others.
Think of those hearings as a conveniently watered-down version of a trial in which court procedures were invoked if they aided Kavanaugh, even as — for anything that might have harmed him — exceptions were made and regular procedures ignored. For example, Rachel Mitchell, the Arizona prosecutor appointed to question the judge and his accuser, Christine Blasey Ford, by the all-male Republicans on the commission eager to duck questioning a woman, would be a prosecutor in name only. Her time was curtailed to five minutes for each senator whose place she took and when it was Kavanaugh’s turn, she was simply shoved aside by the same male senators eager to rant in his favor. Nor, of course, was there anything faintly resembling an impartial judge to oversee Mitchell’s behavior (or anyone else’s for that matter) or protect the witnesses, as there is in every courtroom in the United States. Such a mock courtroom both raised and violated not only the very idea of a fair trial but a fair process of any sort.
The Evidence, Missing in Action
One hoped-for result of a trial is the bringing of facts into the open so that justice can prevail. At no point in the Kavanaugh hearings was there even the semblance of an agreed upon set of facts, no less a coherent way to present them. Quite the opposite, they started and ended with a headlong dash away from the facts. Their undermining began in classic fashion when committee Republicans (in conjunction with the White House) agreed to withhold millions of documents relating to the judge and his work as a government lawyer in the White House during George W. Bush’s presidency. In July 2001, he had been hired as an associate by White House Counsel Alberto Gonzales and, in 2003, he became assistant to the president and White House staff secretary where he may, among other things, have had a hand in the development of the Bush administration’s war on terror policies.
And that was just how those hearings began. In addition, of course, when it came to Kavanaugh’s seemingly grim record with women, the accusations of Deborah Ramirez and Julie Swetnick, publicly alleging inappropriate sexual behavior on his part, were ignored by the committee. Not a witness was called on the subject. Similarly, the bevy of statements that might have corroborated his exploits as a binge drinker in high school and college (as well as whether he ever blacked out from drunkenness) were tossed into the garbage pile of unexamined information.
A long overdue FBI investigation of charges against him, finally carried out at the request of Senator Jeff Flake (but under the watchful eye of the White House), proved a distinctly truncated affair that failed to seriously address the idea of establishing facts as a basis for decision-making. The FBI took the single week allotted to it, reportedly interviewed only nine witnesses, and issued a 46-page report. Compare this to a New Yorker magazine investigation of just the claims of Deborah Ramirez for which its journalists interviewed “between 50 and 100” people. As its co-author, award-winning investigative journalist Jane Mayer, commented, “The one thing I know from investigative reporting… the one thing that makes a difference is time. It takes a while to find the right people to talk to and to talk to them enough that you feel that you’ve gotten the truth from them and to find any kind of documentary evidence that you can. It just takes time.” But time is precisely what the Judiciary and the White House did not allow.
And don’t forget the importance of a perception of thoroughness and fairness. As former U.S. Attorney Preet Bharara put it, “[A]t the end of the day, if there is no further corroboration found with respect to these allegations, then Brett Kavanaugh gets confirmed to the bench. It will be better for him, it will be better for people’s respect for the court, it will be better for people’s respect of the process if they had done more rather than less…”
But a thorough investigation was obviously not what the powers-that-be wanted. As White House Counsel Don McGahn reportedly told the President, “a wide-ranging inquiry” into allegations about the judge’s sexual misconduct would be “potentially disastrous.”
Lack of Transparency
Consider the matter of transparency (or the lack of it) as a grim partner to the withholding, burying, or ignoring of evidence. Given a president who has himself dismissed transparency out of hand — whether in terms of tax returns, election interference, or other subjects — it should have been no surprise that the FBI’s thoroughly inadequate report was not even made public. It was the equivalent of secret testimony. Nor are there evidently any plans to reveal its contents. That final act of secrecy only underscored the White House’s defiance when it came to withholding the vast trove of documentation on Kavanaugh’s time in the Bush White House. Senator Lindsey Graham caught the mood of the moment perfectly when he stated that he had no plans to read the FBI’s report. It was obvious to him that the contents would be a foregone conclusion and that he could rely on others to tell him about it. Apparently, he already knew what he thought.
Lack of Accountability
How many times did we have to hear that the nominee should not be held accountable for what he did as a young man? But what about Kavanaugh’s endless — to put it politely — misstatements of fact? As numerous media sites and tweets pointed out, he seemed to lie repeatedly during the hearings. “Senators on the Judiciary Committee had to know they were being lied to,” wrote Eric Alterman of the Nation, “since the lies were continuously highlighted on Twitter.” New York magazine’s Jonathan Chait called the hearings a “farrago of evasions and outright lies.” And Kavanaugh refused to give his stamp of approval to the FBI investigation, even as he was reportedly pursuing classmates behind the scenes to silence them about the allegations against him.
Had the committee cared to do anything about them, examples of his dissembling were abundantly obvious. He insisted, for instance, that he had not been an excessive drinker. Who cared that the New York Times published excerpts from a 1983 letter of his suggesting that the guests at a beach house where he and his friends were planning to party should “warn the neighbors that we’re loud, obnoxious drunks with prolific pukers among us.” So, too, Kavanaugh’s college roommate, James Roche, attested to Kavanaugh’s heavy drinking in those years. Yet another report mentioned Kavanaugh’s involvement in passing around a girl for sex. He also insisted that he and Christine Blasey Ford, who accused him of sexually assaulting her, had not hung out in the same circles in high school, even though one of the friends he referred to on his list of “[brew]skis,” dated her. And, of course, his on-the-spot definitions of the phrases “Devil’s Triangle” and “boofed” in his high school yearbook as not relating to sex, seemingly obvious falsehoods, were never explored by the committee.
And so it went in those hearings, when it came to even a semblance of classic legal proceedings involving evidence, transparency, or accountability. Take, for instance, Kavanaugh’s answers about his time in the Bush White House. He told the Judiciary Committee that he had not been part of any discussions about the detention policies of that administration, a category that included both Guantánamo and the administration’s notorious “enhanced interrogation techniques.” It’s hard, however, to imagine him closing his eyes as memos that we know existed on detention, surveillance, and torture came across his desk on their way to his boss, White House Counsel Alberto Gonzales. In fact, as New Yorker correspondent Amy Davidson Sorkin has written, individuals then at the White House claim that Kavanaugh was in at least one heated debate over the way in which the Supreme Court would assess the administration’s unprecedented detention policies.
As it happened, however, whenever they could, the committee’s Republican majority chose never to hold him accountable for more or less anything and if, by chance, facts did come to light, despite multiple attempts to hide or suppress them, they were simply dismissed, often flippantly.
The Gitmo Template
For some of us, at least, this kind of denial of justice in America is nothing new. If you were following the war on terror all these years, such a wholesale willingness to compromise the very essence of justice has long seemed like a dangerous trend in clear view. Under the circumstances, it should have been no surprise that Brett Kavanaugh came out of the Bush White House and that the former president supported him vocally throughout the entire confirmation process.
In fact, Guantánamo could be said to have created the template for that quasi-courtroom in Washington and the various deviations from normal investigation, law, and procedure that it followed. For observers of that island prison, the Kavanaugh hearings ring an all-too-familiar bell. For nearly a decade and a half now, such quasi-courtrooms have been the essence of “justice” at that prison camp, as one sham hearing after another has been held. Periodic “reviews” of the very legitimacy of holding detainees in an offshore prison beyond the reach of American justice that had no analog in the American legal system — Combatant Status Review Tribunals under George Bush and Periodic Review Boards under Barack Obama — were introduced simply to justify the continued incarceration of prisoners there. The only goal of such hearings, it appeared, was to avoid the requirements of established protections on the U.S. mainland like due process.
Meanwhile, in Gitmo’s military commissions, as in the Kavanaugh hearings, a central, impartial, independent authority was missing. They are overseen by judges without the power and command of those in the federal court system. Instead, as was true with the White House during the Kavanaugh hearings, the command influence of the Pentagon — and at times the CIA — has hovered over Gitmo’s hearings from day one.
The credentials of the latest judge there, Marine Colonel Keith Parrella, named to the position in August, have only underscored aperpetual lack of regard for professional standards. Parrella, who has had no experience in capital cases, will be overseeing future hearings for the still-untried alleged co-conspirators of the September 11th attacks, who, 17 years later, face the death penalty. Nor has time been allotted, as the Miami Herald’s Carol Rosenberg has pointed out, for the new judge to digest six years’ worth of motions or 20,000 pages of transcripts. No matter. It’s no more of a problem than not absorbing or dealing with the Kavanaugh evidence was to the White House or the Senate Judiciary Committee. Compromised professional standards and procedures, the calling card of Guantánamo’s attempts to adjudicate justice, are now clearly making the move to the mainland.
Inside Gitmo’s quasi-courtrooms, violations of longstanding procedure occur on a regular basis. For example, attorney-client privilege has been upended on numerous occasions over many years. Hidden government surveillance devices have been used to spy on detainee lawyers and their conversations with their clients, as in the case of Abd Al-Rahim al-Nashiri. So, too, the government urge to withhold witness testimony, apparent in the Kavanaugh hearings, echoes Guantánamo where the very idea of a fair trial has long seemed inconceivable to experts. As at the Judiciary Committee in recent weeks, excluded evidence has been a commonplace feature of Gitmo’s military commissions. Lawyers for the detainees are regularly ignored in their attempts to present potentially crucial material, as in the case of Ammar al-Baluchi, especially when it relates to the torture and mistreatment of detainees while in custody.
Since President Trump took office, the military commissions system has only strengthened prohibitions that block the defendants’ lawyers from access to witnesses and documents. This year, lawyers for the five detainees accused of conspiring in the attacks of 9/11 were informed that they had been prohibited from investigating the role that CIA officials and associates played in the brutal interrogation of their clients, testimony that is, they maintain, crucial to their defense strategies, particularly for the death penalty phase of the trial. In fact, at Gitmo, burying the facts has meant, in essence, burying prisoners alive. As defense attorney Joseph Margulies recently wrote about his client, Abu Zubaydah, who was waterboarded 83 times, the government has continually bypassed legal process, preferring to detain Zubaydah forever in silence rather than afford him a trial and the presentation of evidence.
As with all that repressed documentation on Kavanaugh’s White House years, at Gitmo the government has regularly insisted on keeping facts secret. In this spirit, to keep the record clear of hard information about its torture practices, the CIA ordered the destruction of 92 tapes showing some of its grim interrogation sessions. (Even the 6,000-page Senate report on those interrogations has been classified and so largely kept from the public, while the Trump administration has tried to bury it further by rounding up existing copies from the agencies that had them in their possession.)
Without a proper judge, and minus valuable evidence, without any appetite for transparency or accountability, the Gitmo proceedings and the issues that haunt them have been reduced to a kind of invisibility. They are now sham events (just as the Kavanaugh hearings and investigation proved to be). Most of those paying attention have long since concluded that, as criminal defense attorney Joshua Dratel put it, “The reliability and legitimacy of verdicts is completely undermined by secret proceedings.” So, too, may history judge Brett Kavanaugh’s ascension to the bench in proceedings in which secrecy, as well as withheld or intentionally ignored evidence, prevailed.
The Constitution put a condition on the granting of lifetime positions to justices: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” While the good behavior of now Supreme Court Justice Brett Kavanaugh will forever be in question, more important may be the wound that his confirmation hearings inflicted on an American belief in the possibility of justice in this country.
Guantánamo’s tainting of justice should, from early on, have served as a warning. Instead, it seems to have become a template for “justice” in the nation’s capital. The 2007 Manual for Military Commissions ominously included in its preamble the prediction that “this Manual will have an historic impact for our military and our country.”
And so, as the Kavanaugh confirmation process suggests, it did. It’s hard to imagine a more telling event than the rise to the Supreme Court of a White House lawyer present at the creation of many of those Gitmo policies. Under the circumstances, it should hardly surprise anyone that the road to his confirmation displayed many of the legal aberrations launched during the Bush era. As the Gitmo story illustrates, Brett Kavanaugh’s confirmation was not the first nail in the coffin of justice in America — and sadly, it’s unlikely to be the last.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Fordham Law students Daniel Humphrey, Raina Duggirala, and Claudia Bennett helped with the research for this piece.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, 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, John Dower’s The Violent American Century: War and Terror Since World War II, and John Feffer’s dystopian novel Splinterlands.
Copyright 2018 Karen J. Greenberg
Reprinted with permission from Tomdispatch.
By the time Donald J. Trump threw in the towel, who among us hadn’t seen or heard the chilling videos in which U.S. border officials shamelessly grabbed uncomprehending children and toddlers from their pleading mothers and fathers? Some were told they were being taken to bathe or shower by people with little sense of the resonances of history. They were, of course, creating scenes that couldn’t help but bring to mind those moments when Jews, brought to Nazi concentration camps, were told that they were being sent to take “showers,” only to be murdered en masse in the gas chambers. Some of those children didn’t even realize that they had missed the chance to say goodbye to their mothers or fathers. Those weeping toddlers, breast-deprived infants, and distressed teens were just the most recent signs of the Trump administration’s war against decency, compassion, and justice.
Because the victims were children, however, it was easy to ignore one reality: new as all this may have seemed, it actually wasn’t. Dehumanized, traumatized, and scared, those children — their predicament — shocked many Americans who insisted, along with former First Lady Laura Bush, that this was truly un-American. As she wrote in the Washington Post:
“Americans pride ourselves on being a moral nation, on being the nation that sends humanitarian relief to places devastated by natural disasters or famine or war. We pride ourselves on believing that people should be seen for the content of their character, not the color of their skin. We pride ourselves on acceptance. If we are truly that country, then it is our obligation to reunite these detained children with their parents — and to stop separating parents and children in the first place.”
Her essay essentially asked one question: Who have we become? Former CIA Director Michael Hayden, tweeting out a picture of the Birkenau concentration camp over the words “Other governments have separated women and children,” suggested an answer: we were planting the seeds that could make us the new Nazi Germany.
But let me assure you, much of what we saw in these last weeks with those children had its origins in policies and “laws” so much closer to home than Germany three-quarters of a century ago. If you wanted to see where their ravaging really began, you needed to look elsewhere (which, surprisingly enough, no one has) — specifically, to those who created the Guantánamo Bay Detention Facility. From its inception beyond the reach of American courts or, in any normal sense, justice, this prison camp set the stage structurally, institutionally, and legally for what we’ve just been witnessing at the border.
The fingerprints of those who created and sustained that offshore island prison for war-on-terror detainees were all over that policy. Not surprisingly, White House Chief of Staff and retired General John Kelly, former head of SOUTHCOM, the U.S. military combatant command that oversees Guantánamo, was the first official in the Trump administration to publicly float the idea of such a separation policy on the border. In March 2017, answering a question from CNN’s Wolf Blitzer about the separation of children from their mothers, he said, “I would do almost anything to deter the people from Central America” from making the journey here.
Just such separations, of course, became the well-publicized essence of the Trump administration’s “zero tolerance” policy at the border and, until the president’s executive order issued last week, the numbers of children affected were mounting exponentially — more than 2,000 of them in the previous six weeks, some still in diapers. (And keep in mind that there already were 11,000 migrant children in U.S. custody at that point.)
Apprehended at the border, the children were taken to processing facilities, separated from their parents thanks to a mix of Department of Homeland Security, Department of Health and Human Services, and Department of Justice policy directives, and then locked up. From the moment they arrived at those facilities, the echoes of Guantánamowere obvious (at least for those of us who had long followed developments there over the years). First, there were the most visible signs; above all, the children being placed in wire cages that, as journalists and others who saw them attested, looked more like holding cells for animals at a zoo or dogs at a kennel than for humans, no less children. This was, of course, exactly how the first Gitmo detainees were held back in 2002 as that prison was being built.
President Trump foreshadowed the treatment to come. “These aren’t people,” he said in May, referring to undocumented migrants crossing the border, “these are animals.” To make the children’s caged existence worse still, the lights were kept on around the clock and the children subjected to interruptions all night, recalling the sleep deprivation and constant light used as a matter of policy on detainees at Guantánamo Bay. In addition, caregivers were not allowed to touch the children. Even shelter workers were forbidden to do so, which meant adults were not able to console them either. And bad as any of this sounded, such conditions were but a prelude to a much deeper tale of abuse at government hands.
As at Guantánamo, those children were also being subjected to a regime of intentional abuse. The cruel and inhuman treatment began, of course, with the trauma of separation from their parents and often from their siblings as well, since children of different genders were sent to different facilities (or at least different parts of the same facility). Such policies, according to pediatrician and Columbia professor Dr. Irwin Redlener, a leading authority on public policy and children in harm’s way, amount to “child abuse by the government.” In other words, it all added up to a new form of torture, this time visited upon children.
Asking for Congress and the White House to end the policy of separation, members of the American Academy of Child and Adolescent Psychiatry weighed in on the harm that the trauma of forced separation can cause: “Separating these children from their families in times of stress creates unnecessary and high-risk trauma, at the very time they need care and support the most.” In addition, the “children who experience sudden separation from one or both parents, especially under frightening, unpredictable, and chaotic circumstances, are at higher risk for developing illnesses such as anxiety, depression, post-traumatic stress disorder (PTSD), and other trauma-induced reactions.” (Ironically, one of the few characteristics Justice Department lawyers in George W. Bush’s administration acknowledged would constitute torture was “prolonged mental harm.” In their words, for severe pain or suffering to amount to torture would require that “the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage.”)
Name me the parent who doesn’t think that his or her child would suffer lasting harm if separated from his or her closest attachments. Yet, in a press briefing, Department of Homeland Security Secretary Kirstjen Nielsen bluntly insisted that “claiming these children and their parents are treated inhumanely is not true.” It’s worth mentioning, by the way, that the parents of the children were being tortured, too, not knowing where their children were being sent or held and when (or even if) they would ever see them again.
Perversely, administration spokespersons seemed to think that a trade-off had occurred: the loss of basic human rights for at least the pretense of pleasant cosmetic props. Some of the children at least were given toys and games. Nielsen even bragged that Trump administration officials had “high standards. We give them meals, we give them education, we give them medical care. There is videos, there is TVs.”
This, too, should have been a reminder of Guantánamo logic. The more the prisoners there were deprived of in terms of legal and human rights, the more the Bush administration boasted about the creature comforts offered to them, like movies, halal food, and even comfortable chairs (while they were being force-fed) — as if the presence of toys could counteract the wrenching separation from a parent (or a comfortable chair, force-feeding).
Dr. Colleen Kraft, president of the American Academy of Pediatrics, caught the hypocrisy of it all, reporting that the children she saw were surrounded by “toys, books and crayons,” but banging the floor and crying out in pain.
Beyond the physical and emotional deprivations, there were the legal ones. The stay of those children was indefinite, the defining characteristic of Gitmo. Before the Trump separation policy started, children, as minors whose parents were awaiting decisions on immigration status, could only be held by the government for 20 days. With “zero tolerance,” their saga suddenly became interminable.
Legally, like their parents, they were also reclassified. These were no longer the children of migrants or asylum seekers in immigration court, for whom there were strict policies and time limits on detention. They were now the children of alleged criminals, having essentially been rendered orphans. At Guantánamo, changing legal categories in a similar fashion — that is, defining the prisoners’ detentions as military, not criminal in nature — accomplished the same trick, avoiding the application of due process and rights for the detainees.
Which brings up yet another fundamental parallel between Gitmo’s prisoners and the children’s Gitmo at the border. Those being held were described in both places using the same crucial term: detainee. Guantánamo branded this word forever as beyond the bounds of normal legality because the Bush administration officials who set up that system wanted to ensure that the normal legal protections of both national and international law would not be extended to those captured and held there. Guantánamo, the government insisted, was not a prison. It was merely a “detention center.” So many years later, it still is, while those incarcerated there have often served “sentences” of a decade and more, even though only a handful of them were ever actually sentenced by a court of any sort. In 2018, that same label was taken from those accused of being battlefield enemies and slapped on the children of asylum seekers.
As with Guantánamo, lawyers who wanted to represent the parents, whose fates were to determine those of their separated children, found themselves impeded in their access to the detained adults. No one familiar with Gitmo could have missed the parallel. Lawyers seeking to provide assistance to war-on-terror detainees were kept out of Guantánamo for more than two years after it opened.
The Southern Poverty Law Center recently filed suit claiming that, at two detention centers, authorities had limited the access of those undocumented immigrants to lawyers, violating due process. To make matters worse, Attorney General Jeff Sessions’s Department of Justice recently decided not to renew two programs that offered legal aid lawyers to undocumented immigrants facing deportation. Meanwhile, that department has instituted a new policy in which pro-bono lawyers (those from NGO groups seeking to represent the detainees) now have to go through a certification process before taking them on at their own expense.
The media has been similarly restricted. Photographs of the detention “camps” for those children were left to the government alone to provide. So, too, when Guantánamo opened, visiting journalists were ordered to leave their cameras behind. These restrictions stayed in place as official policy, intensified by none other than John Kelly. (Ironically, the Pentagon itself sent out the iconic early 2002 images of kneeling, shackled, orange-jump-suited detainees.)
For 16 years now, opponents of the U.S. detention center on the island of Cuba have understandably warned that its remarkable disregard for the rule of law would inevitably creep into America’s institutions. For the most part, their worries centered on the federal court system and the possibility that defendants there might someday lose basic rights. Now, we know that Guantánamo found a future in those detention camps on our southern border. Don’t think it will be the last place that the influence of that infamous prison will pop up.
While this moment of crisis may have passed, consider this piece, at best, a requiem for a tragedy that has barely ended (if it has) — and also a warning. The legacy of Guantánamo continues to haunt our laws, our imaginations, and our way of life. It’s time to do what we have failed to do for so long now: push back hard on the truly un-American policies spawned by that prison and apparent in so much else of Donald Trump’s America. We need to do so now, before the way of life we once knew is largely erased. It’s time to insist on the right to bring up our children in an America of compassion, law, and respect for the rights of all, not in one whose leaders are intent on robbing them — and so many other children — of their future.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law (CNS) and the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. The summer interns at CNS contributed research for this article.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, 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, John Dower’s The Violent American Century: War and Terror Since World War II, and John Feffer’s dystopian novel Splinterlands.
Copyright 2018 Karen J. Greenberg
Reprinted with permission from Tomdispatch.
Consider us officially in an Orwellian world, though we only half realize it. While we were barely looking, significant parts of an American language long familiar to us quite literally, and in a remarkably coherent way, went down the equivalent of George Orwell’s infamous Memory Hole.
This hit me in a personal way recently. I was asked to give a talk at an annual national security conference held in downtown Manhattan and aimed largely at an audience of college students. The organizer, who had pulled together a remarkable array of speakers, encountered problems in one particular area: his efforts to include representatives of the Trump administration in the gathering. Initially, administration officials he dealt with wouldn’t even divulge the names of possible participants, only their titles, leaving who was coming a mystery until days before the conference opened.
In addition, before agreeing to send speakers, his contacts at Immigration and Customs Enforcement, known by the acronym ICE, had not just requested but insisted that the word “refugee” be removed from the conference program. It was to appear in a description of a panel entitled “Refugee Programs, Immigration, Customs and Border Protection.”
The reason given: the desire to get through the administration approval process in Washington without undue delay. It’s not hard to believe that the administration that wanted to slow to a standstill refugees coming to the U.S. didn’t have an allied urge to do away with the very word itself. In order to ensure that ICE representatives would be there, the organizer reluctantly conceded and so the word “refugee” was dutifully removed from the program.
Meanwhile, the actual names of Department of Homeland Security officials coming to speak were withheld until three days before the event. Finally, administration representatives in touch with the conference organizers insisted that the remarks of any government representatives could not be taped, which meant, ultimately, that none of the proceedings could be taped. As a result, this conference was not recorded for posterity.
For me — and I’ve been observing the national security landscape for years now — this was something of a new low when it came to surrounding a previously open event in a penumbra of secrecy. It made me wonder how many other organizers across the country had been strong-armed in a similar fashion, how many words had been removed from various programs, and how much of what an American citizen should know now went unrecorded.
To some extent, I understood the organizer’s plight, having myself negotiated requests from government officials for 15 years’ worth of national security get-togethers of every sort. As director of the Center on National Security at Fordham Law and before that of a similar center at New York University School of Law, I had been asked by more than one current or former Bush or Obama administration official to not record his or her remarks. Indeed, one or two had even asked to be kept away from the audience until those remarks were delivered.
Still, most had come eager to debate, confident that their views were the preferable ones, aware that the perspectives of many in the room or conference hall would differ from theirs, often drastically, on hard-edged issues like torture, Guantánamo, and targeted killings. But one thing I know: not once in all those years had I been asked to change the language of an event, to wipe a word or phrase out of the program of the moment. It would have been an unthinkable violation.
The very idea that the government can control what words we use and don’t at a university-related event seems to violate everything we as a country hold dear about the independence of educational institutions from government control, not to mention the sanctity of free speech and the importance of public debate. But that, of course, was in the era before Donald Trump became president.
Assaulting the Language of American Democracy
Tiny as that incident was, at a conference meant largely for students but open to an array of professionals, it caught the essence of this administration’s take-no-prisoners approach to the language many of us customarily use to describe the country we live in. Such an assault is, of course, nothing new under Trump. After all, the current president had barely entered the Oval Office when the first reports began to emerge about instances in which language at various government websites was being altered, words and concepts being changed or simply obliterated.
Since then, the language of an America that the president and his associates reject has been under constant attack. Some of those acts of aggression were to be expected, given the campaign promises that preceded his election. Take climate change, which Donald Trump called a “Chinese hoax” long before he filled his administration with rabid climate deniers. The Department of Agriculture was typical. Its new officials excised the very word “climate change” from their website, substituting “weather extremes,” and changed the phrase “reduce greenhouse gases” to the palpably deceptive “increase nutrient use energy.” Across the board, in fact, .gov websites replaced “climate change” with vague words like “resilience” and “sustainability.”
But you don’t have to focus on the urge to obliterate all evidence of climate change, even the words to describe it. Other alterations have been no less notable. For starters, as at the recent conference I attended, there has been a clear rejection of language that connoted the have-nots, the excluded, and the marginalized of our world. At the Centers for Disease Control (CDC), for example, this year’s budget request carefully excluded such descriptors from its mission and purpose statement. Originally incorrectly reported as a policy decision to ban certain words from use at the agency, CDC officials were simply reading the tea leaves of the new administration and quickly ridding their budget requests of key words, now poison in Trump’s Washington, describing their mission. These were words suddenly seen as red flags when it came to the use of government funds to help the less fortunate or the discriminated against. Examples included “vulnerable,” “entitlement,” “diversity,” “transgender,” and “fetus” — and with science now in disrepute for its anti-fossil-fuel findings, also discarded were the phrases “evidence-based” and “science-based.”
The disavowal of marginalized groups and of the vulnerable in society, including those “refugees,” has hardly been limited to the CDC. It also reared its head, for example, in the mission statement of the U.S. Citizenship and Immigration Services, where the label “nation of immigrants” was dropped from its mission statement, which now reads:
“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.”
Given the latest news from the border of children being torn from their parents and the president’s recently reported cabinet rant about not yet securing the border effectively, no one should be surprised that “security” and “values” have trumped “immigrants” and inclusion in that mission statement. So, too, has such a mindset left its mark on another agency created to help out those in need. The Department of Housing and Urban Development, led by Ben Carson, has ditched the terms “free from discrimination,” “quality homes,” and “inclusive communities” in favor of a mission that supports “self-sufficiency” and “opportunity.” In other words, the onus is being put on the individual rather than the government.
Trump is hardly the first president to discover the importance of language as a political tool that can be self-consciously used for practical ends. Barack Obama, for instance, banished both the name “war on terror” for America’s unending post-9/11 conflicts across the Greater Middle East and Africa and “Islamic extremist terrorism” for those we fought — even though that “war” went right on. Still, the current president may be the first whose administration hasn’t hesitated to delete terms tied to the foundational principles of the country, among them “democracy,” “honesty,” and “transparency.”
Putting a fine point on the turn away from core values, for instance, the State Department deleted the word “democratic” from its mission statement and backed away from the notion that the department and the country should promote democracy abroad. In its new mission statement, missing words also included “peaceful” and “just.” Similarly, the U.S. Agency for International Development’s mission statement veered away from its prior emphasis on “ending extreme poverty and promoting the development of resilient, democratic societies that are able to realize their potential.” Its goal, it now explains, is “to support partners to become self-reliant and capable of leading their own development journeys” largely through increased security (including presumably the purchase of American weaponry) and expanding markets.
Alongside a diminished regard for the very thought of inclusiveness and for helping impoverished nations improve their conditions through aid, the idea of protecting civil liberties has taken a nosedive. President Trump’s first appointee to head the Guantánamo Bay Detention Center, Rear Admiral Edward Cashman, for example, took the words “legal” and “transparent” out of the prison facility’s mission statement. In a similar fashion, the Department of Justice has excised the portion of its website devoted to “the need for free press and public trial.”
A Ministry of Propaganda?
Meanwhile, in a set of parallel moves of betrayal, the dismemberment of agencies created to honor and protect peacefulness and basic civil liberties at home or abroad is ongoing. At the moment, for instance, less than half of the top positions at the State Department have been filled and confirmed. The fallout is clear: ambassadors to countries of major importance in current tension-ridden areas and the very concept of diplomacy that might go with them are missing in action. That includes the ambassadors for Libya, Somalia, Saudi Arabia, South Korea, Sudan, the United Arab Emirates, and Syria. Meanwhile, in the first year of the Trump era, nearly 2,000 career diplomats and civil servants were pushed out of the department and, by the time Secretary of State Rex Tillerson went the way of so many Trump appointees, top posts there had been halved. In an Orwellian world, agencies stripped down to bare minimum staffs and leadership are that much easier to tilt and turn in grim new directions.
Similarly, the Trump administration has all too often endeavored to disavow or obliterate facts. It’s not just a matter of endlessly reported presidential lying and misstatements, but of a wholesale disregard for reality that can again be seen at government websites where factual information of all sorts has been tossed down the memory hole. References to climate change disappeared from the White House website on Inauguration Day 2017. Many references and links to climate change put up during the Obama years were, for example, quickly removed from the State Department’s website, and other agency websites followed this pattern.
Similarly, the White House website wiped out pages focused on federal policies toward people with disabilities, leaving only this message for interested citizens: “You are not authorized to access this page.” Nor does the administration evidently feel any responsibility to issue reports to the public on its activities, including those that might damage respect for Americans worldwide. Recently, the Trump administration missed a deadline for reporting on civilian casualties resulting from U.S. drone strikes, a yearly requirement established by President Obama in 2016. A White House spokesperson explained that such a reporting requirement was “under review” and could be “modified” or “rescinded.”
Such an approach to what should and shouldn’t be known about and available to citizens from a government still theoretically of, by, and for the people has regularly been described as fascist, Stalinist, totalitarian, or authoritarian. More important, however, than any labels is the recognition that, whatever you might call it, there is indeed a strategy at work here. This is, in fact, a far less ad hoc and amateurish administration than pundits and politicians assume. Trump associates like to talk about the in-the-moment quality of present White House decision-making, but the concerted, continual, and consistent on-message attack on words, phrases, and language that offends those now in office seems to contradict that notion.
What we are evidently living through is a coordinated attack on the previous American definition of reality. The question is: Where do such directives come from? Who has identified the words and concepts that need to be deleted from the national lexicon? However unknown to us, is there a virtual minister or ministry of propaganda somewhere? Is there someone monitoring and documenting the progress of such a strategy? And what exactly are the next steps being planned?
Whatever the circumstances under which this is happening, it certainly is a bold attempt to use language as a doorway that will take us from one reality — that of the past 250 years of American history and its progression towards inclusion, diversity, equal rights for minorities, and liberty and justice for all — to another, that of an oligarchically led transformation focused on intolerance, racial and ethnic divides, discrimination, ignorance (rather than science), and the creation of a state of unparalleled heartlessness and greed.
It might be worth reflecting on the words of Joseph Goebbels, the propaganda minister for Hitler’s Nazi Party. He had a clear-eyed vision of the importance of disguising the ultimate goal of his particular campaign against democracy and truth. “The secret of propaganda,” he said, is to “permeate the person it aims to grasp without his even noticing that he is being permeated.”
Consider this a word of warning to the wise. Perhaps instead of hurling insults at President Trump’s incompetence and the seeming disarray of his presidency, it might be worth taking a step back and asking ourselves whether there is indeed a larger goal in mind: namely, a slow, patient, incremental dismantling of democracy, beginning with its most precious words.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and the author of Rogue Justice: The Making of the Security State. Samuel Levy, Hadas Spivack, and Anastasia Bez contributed research for this article.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Book, 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, John Dower’s The Violent American Century: War and Terror Since World War II, John Feffer’s dystopian novel Splinterlands, and Nick Turse’s Next Time They’ll Come to Count the Dead.
Copyright 2018 Karen J. Greenberg
Reprinted with permission from AlterNet.
Eight years ago, when I wrote a book on the first days of Guantanamo, The Least Worst Place: Guantánamo’s First 100 Days, I assumed that Gitmo would prove a grim anomaly in our history. Today, it seems as if that “detention facility” will have a far longer life than I ever imagined and that it, and everything it represents, will become a true, if grim, legacy of twenty-first-century America.
It appears that we just can’t escape the perpetual pendulum of the never-ending war on terror as it invariably swings away from the rule of law and the protections of the Constitution. Last month, worries that had initially surfaced during the presidential campaign of 2016 over Donald Trump’s statements about restoring torture and expanding Guantanamo’s population took on a new urgency. In mid-September, the administration acknowledgedthat it had captured an American in Syria. Though no facts about the detained individual have been revealed, including his name or any allegations against him, the Pentagon did confirm that he has been classified as an “enemy combatant,” a vague and legally imprecise category. It was, however, one of the first building blocks that officials of George W. Bush’s administration used to establish the notoriously lawless policies of that era, including Guantanamo, the CIA’s “black sites,” and of course “enhanced interrogation techniques.“
Placing terrorism suspects apprehended while fighting abroad in American custody is hardly unprecedented. The U.S. government has periodically captured citizen and non-citizen members of ISIS, and fighters from the Somali terrorist organization al-Shabaab, as well as from al-Qaeda-linked groups. To those who have followed such matters, however, the Trump administration’s quick embrace of the term “enemy combatant” for the latest captive is an obvious red flag and so has elicited a chorus of concern from national security attorneys and experts, myself included. Our collective disquiet stems from grim memories of the extralegal terrorism policies the Bush administration institutionalized, especially the way the term “enemy combatant” helped free its officials and the presidency from many restraints, and from fears that those abandoned policies might have a second life in the Trump era.
What, then, is an enemy combatant? After all, memories fade and the government hasn’t formally classified anyone in custody by that rubric since 2009. So here’s a brief reminder. The term first made its appearance in the early months after 9/11. At that time, then-Deputy Assistant Attorney General John Yoo — who gained infamy for redefining acts of torture as legal “techniques” in the interrogation of prisoners — and others used “enemy combatant” to refer to those captured in what was then being called the Global War on Terror. Their fates, Yoo argued, lay outside the purview of either Congress or the courts. The president, and only the president, he claimed, had the power to decide what would happen to them.
“As the president possess[es] the Commander-in-Chief and Executive powers alone,” Yoo wrote at the time, “Congress cannot constitutionally restrict or regulate the president’s decision to commence hostilities or to direct the military, once engaged. This would include not just battlefield tactics, but also the disposition of captured enemy combatants.”
The category, as used then, was meant to be sui generis and to bear no relation to “unlawful” or “lawful” enemy combatants, both granted legal protections under international law. Above all, the Bush version of enemy-combatant status was meant to exempt Washington’s captives from any of the protections that would normally have been granted to prisoners of war.
In practice, this opened the way for that era’s offshore system of (in)justice at both the CIA’s black sites and the prison camp at Guantanamo, which was set up in Cuba in order to evade the reach of either Congress or the federal court system. The captives President Bush and Secretary of Defense Donald Rumsfeld sent there beginning in January 2002 fell into that category. In keeping with the mood of the moment in Washington, the U.S. military personnel who received them were carefully cautioned never to refer to them as “prisoners,” lest they then qualify for the legal protections guaranteed to prisoners of war. Within weeks, the population had grown to several hundred men, all labeled “alien enemy combatants,” all deemed by Yoo and his superiors to lie outside the laws of war as well as those of the United States, and even outside military regulations.
American citizens were excluded from detention there. Some were nonetheless labeled enemy combatants. One — Jose Padilla — was arrested in the United States. Another — Yaser Hamdi — was initially brought to Gitmo after being captured in Afghanistan, only to be flown in the middle of the night to the United States as administration officials hoped to escape public attention for their mistake.
Padilla had been born and raised in the United States; Hamdi had grown up in Saudi Arabia. To avoid the federal detention system, both would be held in a naval brig in South Carolina, deprived of access to lawyers, and detained without charge. For years, their lawyers tried to convince federal judges that keeping them in such circumstances was unconstitutional. Eventually, the Supreme Court weighed in, upholding Yoo’s position on their classification as enemy combatants, but allowing them lawyers who could challenge the grounds for and conditions of their detention.
Although the government defended the use of enemy combatant status for years, both Padilla and Hamdi were eventually — after almost three years in Hamdi’s case, three and a half for Padilla — turned over to federal law enforcement. Never charged with a crime, Hamdi would be returned to Saudi Arabia, where he promptly renounced his U.S. citizenship, as the terms of his release required. Padilla was eventually charged in federal court and ultimately sentenced to 21 years in prison.
By the time Barack Obama entered the Oval Office, both cases had been resolved, but that of another enemy combatant held in the United States, though not a citizen, was still pending. Ali Saleh al-Marri, a Qatari and a graduate student at Bradley University in Illinois, was taken from civilian custody and detained without charges for six years at the same naval base that had held Padilla and Hamdi. Within weeks of Obama’s inauguration, however, he would be released into federal civilian custody and charged. Meanwhile, in June 2009, for the first and only time, the Department of Justice suddenly transferred a Guantanamo prisoner, Ahmed Ghailani, to federal custody. A year later, he was tried and convicted in federal court for his involvement in the 1998 bombings of the U.S. embassies in Kenya and Tanzania.
The message seemed hopeful, and was followed by other potentially restorative gestures. On the day Obama entered the White House, for instance, he signed an executive order to close Guantanamo within the year. In March, he abandoned the use of the term enemy combatant for the detainees there. Aiming to release or try all who remained in that prison camp, he appointed a task force to come up with viable options for doing so.
In other words, as his presidency began, Obama seemed poised to restore rights guaranteed under the Constitution to all prisoners, including those in Guantanamo, when it came to detention and trial. The pendulum seemed potentially set to swing back toward the rule of law. In the years to come, there would, nonetheless, be many disappointments when it came to the rule of law, including the failure to close Guantanamo itself. There was, as well, the Obama administration’s 2011 reversal of its earlier decision to take the alleged 9/11 co-conspirators — including the “mastermind” of those attacks, Khalid Sheikh Mohammed — into federal court rather than try them via a Gitmo military commission.
In reality, that administration would even end up preserving an aspect of the enemy-combatant apparatus. In 2011, before bringing Ahmed Abdulkadir Warsame, a Somali defendant, and in 2014 before bringing Abu Khattala, the alleged mastermind in the deaths of an American ambassador and others in Benghazi, Libya, to the United States and putting them in federal custody, and in 2016 before bringing two Americans found fighting in Syria court here, the Obama administration would carve out a period for military detention and interrogation prior to federal custody and prosecution.
In each case, the individuals were held in military custody and first interrogated there. Warsame, for instance, was kept aboard a U.S. Navy vessel for two months of questioning before being charged with, among other things, providing material support to the Somali militant group al-Shabaab and to al-Qaeda in the Arabian Peninsula. (In December 2011, he would plead guilty in a federal court in New York City.) Khattala was held for 13 days. Once U.S. intelligence agents had the information they felt they needed, they turned the detainees over to those who would help prosecute them — to the “clean team.”
Until the recent Trump administration designation, however, no one in the ensuing years would be newly labeled an enemy combatant and sent to the Guantanamo Bay Detention Facility or held without charge on U.S. soil. In fact, a number of individuals who, in the Bush years, would undoubtedly have become detainees there landed in federal court instead, including bin Laden’s son-in-law, Sulaiman Abu Ghaith, and Abu Hamza al-Masri, an al-Qaeda operative accused of trying to build a terrorist cell in the United States.
As a result, this fall there are a surprising number of terrorism trials taking place, including that of the alleged Benghazi mastermind, of the two Americans who were fighting alongside ISIS in Syria, and of U.S. citizen Muhanad Mahmoud al-Farekh, who was just found guilty in a federal court in Brooklyn, New York, of conspiring to aid al-Qaeda and bomb a U.S. military base in Afghanistan.
In these years, the belief that terrorism suspects belong within the federal criminal justice system was reestablished. In addition, Obama appointed two consecutive special envoys to take charge of transferring detainees cleared for release from Guantanamo, which Congress refused to close. As a result, a total of 197 were released during the Obama years, leaving only 41 in indefinite detention as Trump came into office.
Meanwhile, during the tenures of Attorneys General General Eric Holder and Loretta Lynch, the federal courts would handle an increasingly wide array of terrorism cases, ranging from the Boston Marathon attack to the attempts of a woman in Colorado to travel abroad to marry an ISIS member and serve the caliphate. Taken together, these developments seemed to signify an end to the era of indefinite detention and of detention without charge. Or so we thought.
Back to the Future
Now, it seems, the term “enemy combatant” is back and who knows what’s about to come back with it? Was the Trump administration’s very use of that label meant to get our attention, to signal the potential Guantanamo-ish future to come, to quash any cautious hopes that the modest gains realized during the Obama years might actually last? Remember that, during the 2016 election campaign, Donald Trump swore that he would add some “bad dudes” to Guantanamo and insisted that even American citizens could end up in that persistent symbol of American injustice.
In the meantime, in August it was revealed that the Pentagon was already requesting from Congress $500 million dollars to build new barracks for troops, a hospital, and a tent city for migrants at Gitmo. In other words, the United States now stands at a worrisome and yet familiar crossroads in its never-ending war on terror and the signs point to a possible revival of some of the worst policies of the national security state.
In reality, so many years later, enemy combatant status should be a nonstarter, a red flag of the first order, as should indefinite detention. In the past, such policies produced nothing but a costly quagmire, leaving George Bush to personally release more than 500 detainees, Barack Obama nearly 200, and the government to eventually take citizens declared to be enemy combatants out of military custody and transfer them to federal court. Meanwhile, the hapless military commissions tied directly to Gitmo that were to replace the federal court system have yet to even begin the trials of the alleged co-conspirators of 9/11, while such courts have already tried more than 500 terrorism defendants.
Is this really what the Trump years have in store for us? A return to a policy that never worked, that brought shame to this country, cost a fortune in the bargain (at the moment, nearly $11 million annually per Gitmo detainee), and undermined faith in the federal court system, even though those courts have proved so much more capable than the military commissions of dealing with terrorism cases?
For those of us who thought this country might have learned its lesson, the use of the term “enemy combatant” for new detainees and for an American citizen is more than a provocative gesture, it’s the latest attack on the rule of law. It represents a renewed attempt to dismantle yet another piece of the fabric of American democracy and to throw into doubt a founding faith in the importance of courts and the judicial system. It’s another reminder that the rise of the national security state continues to take place outside the bounds of what was once thought of as fundamental to the republic — namely, institutions of justice. Suitably, then, the American Civil Liberties Union filed a habeas petition on October 5th challenging the detention of the newest enemy combatant, asserting, among other things, “John Doe’s” right to an attorney and calling for him to be transferred into civil custody and charged or released.
Though the future is so often a mystery, if the Trump administration goes down this same path again, it should be obvious from the last decade and a half just where it will lead: toward a renewed policy of legal exceptionalism in which the American scales of justice will once again be decisively tipped toward injustice.
Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law School and author of The Least Worst Place: Guantánamo’s First 100 Days. Her most recent book is Rogue Justice: the Making of the Security State. Rohini Kurup, an intern at CNS, helped with the research for this article.
The War on Terror has transformed the Department of Justice into an arm of the intelligence community— hijacking an institution charged with upholding the Constitution and the rule of law and using it as legal cover for mass surveillance and torture. No one has detailed that monumental shift in policy like Karen Greenberg, Director of the Center on National Security at Fordham’s School of Law. Greenberg’s Rogue Justice is a deeply-reported expose of the architects of the War on Terror at every level of government. What follows is an exclusive excerpt from the book:
The most unusual thing about the case argued in federal court in Providence, Rhode Island, on June 19, 2008, was not that the court convening it, the FISA Court of Review, had met only once before in its thirty-year history. It wasn’t the way technicians had swept the room for bugs and cut it off from the Internet, turning Courtroom 3 temporarily into a Sensitive Compartmented Information Facility (SCIF). It wasn’t the briefcases full of classified information that the three Justice Department lawyers had physically held on to for the hours-long trip from Washington, or even the intrigue surrounding their journey, which had led at least one of them to lie to his wife about his destination that day. And it certainly wasn’t the argument itself, in which a government lawyer once again asserted that the war on terror could not be fought without restricting Fourth Amendment rights, while his opponent countered that to take away civil liberties in the name of national security was to compromise the very principles for which the war on terror was being waged.
No, the strangest thing was that the lawyer worrying over constitutional rights, Marc Zwillinger, was not from the ACLU or the Center for Constitutional Rights; nor was he representing detainees or tortured prisoners. Instead, he represented a large American corporation: the Internet company Yahoo! The issue at hand was a government order forcing Yahoo! to “assist in warrantless surveillance of certain customers” by turning over records of their communications. Yahoo! had so far failed to comply with this order, a defiance that was about to cost the company $250,000 a day in fines. But Zwillinger’s argument in court that day wasn’t about the cost or difficulty of supplying the government information about the private communications that passed through its servers in California. And it was only a little bit about the consequences to its bottom line should its customers discover the breach. Mostly Yahoo!’s objection rose above petty corporate interests and invoked the basic principles of American jurisprudence. The government, Zwillinger told the three-judge panel, was compelling his company “to participate in surveillance that we believe violates the Constitution of the United States.” It was refusing to supply the data on principle. It was evidently one thing for a corporation to amass huge amounts of data on its customers to sell to other corporations—which was, after all, Yahoo!’s business model—and another for that company to be required to provide its information to intelligence agencies. But while the court at least listened to the constitutional argument, it wasn’t buying it. In August, it upheld Walton’s decision. The bar for domestic surveillance might once have been high, but that was before 9/11, the Patriot Act, and the Protect America Act, and, wrote Judge Selya, “that dog will not hunt” any longer. “The interest in national security is of the highest order of magnitude,” he explained. So long as the “purpose involves some legitimate objective beyond ordinary crime control,” he continued, there is a “foreign intelligence exception to the Fourth Amendment’s warrant requirement.” Under this reasoning, the president’s authorization “at least approaches a classic warrant” and thus preserves enough of the intent of the Fourth Amendment to be considered constitutional. It would be another five years before Americans—including, presumably, Judge Selya and Solicitor General Garre—were alerted by Edward Snowden to how misplaced their trust was.
Adapted from ROGUE JUSTICE: THE MAKING OF THE SECURITY STATE Copyright © 2016 by Karen Greenberg. Published by Crown Publishers, an imprint of Penguin Random House LLC.
President Obama must have known that choosing John Brennan to direct the CIA would be highly controversial because of his alleged tolerance of torture as a top official at the agency during the Bush administration. Among those who have spoken out over the past several days is Senator John McCain — himself a victim of torture as a war prisoner in North Vietnam — who responded to Brennan’s nomination with a clear warning:
I appreciate John Brennan’s long record of service to our nation, but I have many questions and concerns about his nomination to be Director of the Central Intelligence Agency, especially what role he played in the so-called enhanced interrogation programs while serving at the CIA during the last administration, as well as his public defense of those programs. I plan to examine this aspect of Mr. Brennan’s record very closely as I consider his nomination.
In coming weeks, this line of criticism will become central when Brennan faces his confirmation hearing in the Senate. But maybe we shouldn’t rush to condemn this nomination — an appointment which makes sense from the point of view of the Obama administration trying to unify its national security policy across agencies. Rather than seeing Brennan’s appointment as a surrender to post-9/11 abuses, perhaps we should ask whether it is in fact an opportunity. The nomination process for John Brennan just might help us through the national impasse on matters of transparency and accountability, which continue to prevent Congress, and the nation, from moving forward on the issue of torture — as the raging debate over Kathryn Bigelow’s controversial film Zero Dark Thirty has illustrated.
Right now, the Senate Select Committee on Intelligence is sitting on what is widely considered to be the most definitive report to date on the CIA’s use of enhanced interrogation techniques. On March 5, 2009, Democratic chairman Dianne Feinstein and Republican vice chairman Kit Bond announced that the committee would review the CIA detention and interrogation program. Last December, the completed report was adopted by the committee, though not yet publicly released. Reportedly, it comprises an unprecedented and staggering amount of research, with over 6,000 pages and more than 35,000 footnotes resulting from the committee’s review of more than six million pages of CIA records and other documents.
So the real story of enhanced interrogation at American hands — Senate investigators claimed to have looked at the creation of the program, the assessment of information that came from the program, the sharing of knowledge of the program with other agencies and more — is now available, or should be. While the Senate Armed Services Committee report from 2008 made some headway in revealing the details of the creation and implementation of the policy, this recent report promises much greater depth, accuracy and access to CIA information. In Feinstein’s words, this new report, adopted on a bipartisan basis, “…will settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques such as those detailed in this report.”
Unfortunately, the Obama administration has continued to back away from accountability for torture. At the start of his first term, the president declared that “we need to look forward as opposed to looking backwards” on matters related to torture. This directive resonated throughout the work of the administration. And, not surprisingly, just over four months ago, the investigation into whether or not the Department of Justice would prosecute anyone for the deaths of two detainees being held in U.S. custody abroad was brought to a close without any criminal charges being filed, marking the end of any official probe of those responsible for the torture policy.
It is an irony that the investigations leading to decisions not to prosecute concluded as the Senate Select Committee’s comprehensive report was finished. Added to this is the even bigger irony that Senators Feinstein and McCain have condemned Zero Dark Thirty for inaccuracies in portraying the torture program, while the Intelligence Committee, headed by Feinstein, could be providing the true facts to the public. Doesn’t it make sense for the American people to have full understanding and knowledge concerning an issue of such national importance?
What can certainly be said for John Brennan is that he has been a consistent advocate of transparency in government. While acknowledging the need for balancing openness with government secrecy, he has made it a mantra of his service as White House Counterterrorism Advisor, stating repeatedly that “staying true to our values as a nation also includes upholding the transparency upon which our democracy depends.” The president, too, has repeatedly stated his preference for transparency. This should be a moment for transparency in the matter of torture.
The transition to a new national security team is the perfect time to push for release of the Senate’s comprehensive report. As the dialogue surrounding Zero Dark Thirty makes clear, unless the country now reaches a long overdue moment of accountability, Washington and the American public will continue an endless and fruitless debate over the policies of the past, and we will not be able to truly move forward.
Karen Greenberg is Director of the Center on National Security at Fordham University’s School of Law.
Photo by CSIS: Center for Strategic & International Studies/Flickr
This past Tuesday, a federal jury decided a terrorism case. And once again, the verdict is guilty. High profile terrorism cases, like the case of Tarek Mehanna, a 29-year-old American pharmacy school graduate who was on trial for providing material support to Al Qaeda operations and other terrorism charges because of his Internet writings and a trip to Yemen in 2004 (even though he never picked up a weapon or received any training), always end with a conviction.
In Mehanna’s case, the jury in Boston took more than a day to decide. His lawyers won some small victories – Mehanna’s parents stood by him with somber grace, a terrorism expert witness for the prosecution was shown to have received nearly $1 million in payments and nearly half his salary from government agencies in the past five years, and numerous specialists in counterterrorism (including former CIA case officer and NYPD advisor Marc Sagemen) testified for the defense – but none of it mattered. When a federal judge asks a jury to make a decision in a terrorism case, there is rarely an acquittal.
There have been over 300 individuals indicted for jihadist terrorism since 9/11, and 80 have gone to trial. The conviction rate for those that go to trial and those that reach a plea is nearly 90%, and when it comes to trials, there have been no acquittals since 2008 — even in cases like the 2009 “Newburgh Four” trial, when it was revealed that the government investigators had overreached by taking the lead in coming up with several elements of the plot including the ideological motive, the need for co-conspirators, and the choice and provision of weapons.
Up until now, convictions like that of Mahenna’s have been met with a sigh of relief. In particular, those who oppose military commissions for terrorists, myself included, rally around these verdicts with the gleeful coda that conviction proves that the criminal justice system can work for terrorism suspects. Meanwhile, conservatives misrepresent the strength of the courts when they foment worry about the theoretical prospect of terrorism acquittals.
But, like it or not, there is a deep and unsettling irony in the embrace of terrorism convictions as proof of a robust system. We have no doubt that a jury of twelve American citizens is capable of convicting, but can they entertain the possibility of an acquittal in a terrorism prosecution, especially when the case revolves around instances of free speech that contains content that many of us find objectionable?
This is not just splitting hairs. Those of us who advocate for the use of the federal court system (or “Article III courts,”), instead of military commissions or indefinite imprisonment for terrorists have trapped ourselves in a philosophically uncomfortable corner in which the only way to declare success for the court system is to point to its record of convictions. It is but one more example of showing how tough America can be, one more sign that national security is best handled without nuance, one more admission that there is zero tolerance for unpredictability in constitutional processes when it comes to terrorism cases.
By equating guilt and success, those of us who have championed the courts may have compromised more than was necessary – or ultimately useful.
The conviction of Tarek Mehanna may be proof that the courts can administer tough justice, especially when given broadly applicable material support laws that can prosecute aspirational behavior. But it is also proof that terrorism cases follow a different standard than the criminal justice system in general. This might be a politically viable approach for now, but the need to stack the deck may ultimately weaken the rule of law and the presumption of innocence that makes our justice system work.
In 2005, the Bush Administration listed the justice system as a weak counterterrorism tool in their official National Defense Strategy. The document claimed that “our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”
But six years later, it seems that the belief that the system was fair has not served defenders of the courts well. Few could have imagined that the reach of the law would become so vast and inescapable. The message is clear: Anyone who spouts the language of Islamic fundamentalism and pan-Islamist grievances – whether or not he commits or plans an act of violence – is an enemy of the state who should spend his life in jail.
Earlier this month, Congress passed and the President refused to veto the National Defense Authorization Act, despite its provisions for military detention for American citizens suspected of terrorism and its allowance for the possibilities of military trials. One can only wonder: Just how far from that 2005 National Defense Strategy statement have we as a nation have really come?
Karen J. Greenberg is the Director of the Center for National Security at Fordham University Law School and the author of The Least Worst Place: Guantanamo’s First 100 Days.
It seemed obvious: An attack on a Western target in the wake of the constant pressure that the US and NATO forces have been applying to Al Qaeda. The group and its various offshoots have had a rough couple of months. They suffered the killing of bin Laden; the killing of Ilyas Kashmiri, Al Qaeda’s military boss in Central Asia; the attempts on the life of the leader of the Afghan Taliban, Mullah Omar; and the constant use of predator drones for targeted attacks on leaders wherever Al Qaeda is training and recruiting, notably Afghanistan, Somalia, and Yemen. Then today, as if in response, there were two consecutive attacks in Norway, an explosion that caused major damage to government buildings and shootings at a youth camp run by the Labor Party where top government officials were apparently scheduled to speak.
Al Qaeda did not claim credit for the chaos — as of late Friday afternoon, a group calling itself “Helpers of the Global Jihad” had made, then revoked, a statement claiming responsibility — but the twin attacks seemed to bear the group’s signature. The bombing of public buildings resembles similar assaults of embassies and hotels around the world, while the shooting rampage looked like it was straight out of the playbook of Anwar al Awlaki, an American-born cleric who has become the new face of Al Qaeda in Yemen, and has urged his followers to use guns against Western targets.
Given all the evidence — and the chatter on Islamist message boards — one would expect that the source of today’s attacks were clear. But as of 5:30 Friday evening, the only suspect arrested was a Norwegian citizen, and his ties with Islamist militants, if they existed at all, were unclear. More than one western expert had warned that it was a message from Ayman Al-Zawahiri, bin Laden’s longtime number two and the new head of Al Qaeda.
And it wasn’t just Westerners who blamed the most available bogeyman.
Ayman Zawahiri, Osama bin Laden’s longtime lieutenant and now the titular head of al Qaeda, has been calling for an attack against Norwegians since 2003. The Norwegian army reportedly continues to provide special forces in and around Kabul and in 2006 the Norwegian press published Danish cartoons that ridiculed Islam and the prophet Mohammed, eliciting angry protests from Muslims around the globe. (Unlike the Danish government, however, the Norwegian government issued an apology.) And last week, Mullah Krekar, an Iraqi refugee in Norway who founded the Islamist group Ansar al Islam (predecessor of Al Qaeda in Iraq), was indicted in Oslo for making threats against Norwegian politicians.
As Abu Suleiman al-Nasser, a military leader of Al Qaeda in Iraq who has repeatedly threatened attacks against Scandinavian countries, bluntly explained on a jihadist message board earlier today: “Norway was targeted in order to become a lesson and example for the rest of the countries of Europe.” Al-Nasser demanded that European countries withdraw from Afghanistan. “Answer the demands of the Mujahideen,” he said, “as what you see is only the beginning and what’s coming is more.’”
Karen Greenberg is the director of NYU’s Center on Law and Security
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