Legal Analysis and Commentary from Justia
Posted In Government

A Decade of 9/11

Ten years after the terrorist attacks that were said to have “changed everything,” what has changed in the protection of human rights, and how did these changes take place?

A look back at the past decade—and five distinct periods of government policy—tells the story.

Unchecked Abuses

The years immediately following the September 11 attacks saw the most egregious, widespread, and unchecked human rights violations.  Starting from the moment when President Bush declared that the US was engaged in a war on a terror, in a speech to a joint session of Congress a few days after the September 11 attacks, the executive branch carried out an aggressive assault on basic human rights.

Traditional rules on interrogation, detention, surveillance and trial were abandoned. An array of secret programs was launched; executive powers were greatly expanded; and Congress was largely left out of the picture.

The debate in the media was dominated by pundits who justified recourse to torture, using hypothetical “ticking time bomb” scenarios to scare the public.  Academics contributed their insights, too, analyzing whether warrants would be necessary for torture to be legal, and whether “torture-lite” was preferable to more savage techniques.

A host of U.S. departments and agencies, from the military to the NSA to Treasury, were urged to go beyond the bounds of lawfulness, but it was the CIA that was unleashed.  On September 17, 2001, President Bush signed a secret finding that gave the CIA unprecedented powers to kill, capture, and detain people, and to do so in utter secrecy, with no accountability beyond the weak constraints of political oversight.

These initial post-9/11 years were the period of waterboarding, sexual abuses, purposeful renditions to torture, and ambitious efforts to not just evade international legal constraints, but eliminate them.  The “torture memos,” with their disingenuous claim that waterboarding is not torture, were the documentary complement to this parade of horribles.

What brought this initial period to an end was its predictable consequence: the specter of horrific and widespread torture.  The Abu Ghraib scandal, breaking in late April 2004, led directly to Supreme Court’s landmark ruling in the Rasul case, which held that Guantanamo is not a legal black hole and that the interests of national security are not an absolute shield against judicial scrutiny.

It was the first and perhaps most important victory for human rights in the post-9/11 decade.

Retrenchment and Reassertion

During the second period, from roughly mid-2004 to mid-2006, the administration was on the defensive.  Close European allies like Germany and the United Kingdom began to express concern about CIA detainee operations and to call for Guantanamo’s closure.  Some of the administration’s academic apologists dropped out of the picture.

The CIA’s “black sites” were emptied out, with detainees being handed over to the custody of their home governments.  Guantanamo largely stopped accepting new prisoners, and began to steadily shrink in size.

The third period, late Bush, was marked by the administration’s effort to establish a firm legal foundation for its innovations.  The Bush administration may be known for an “alternative” approach to interrogation, but what it tried to establish was, much more broadly, an “alternative” and much-degraded approach to justice.

At the administration’s urging, Congress in 2006 passed the Military Commissions Act, allowing substandard trials; the president issued an Executive Order on CIA detention in 2007, and the first complete military commission proceedings were held in 2007 and 2008. The courts began to reach the substance of detainees’ habeas corpus petitions in 2008, placing a judicial stamp of approval on long-term detention without trial.

The Obama Moment

Like Bush, Obama, too, began with dramatic and ambitious steps: what seemed to be a genuine effort to undo his predecessor’s approach to fighting terrorism.  The tragic difference, however, is that while President Bush’s initial, frenetically active period lasted nearly three years, the Obama administration’s efforts to reverse course lasted a mere three months.

Obama launched his presidency with a bang:  On the day he was inaugurated, he issued an order suspending the military commissions at Guantanamo. On his second full day in office, he issued executive orders to end torture, ban CIA prisons, and close Guantanamo in a year’s time.  Reform seemed not only possible, it seemed a high priority.

But this hopeful moment was all too short.  By late April, facing vigorous congressional pushback, the president caved.  Rather than follow through on his plans to bring a group of wrongly-held Uighur detainees from Guantanamo to the United States, the president backed down.  Rather than establish a commission of inquiry or open criminal investigations of senior U.S. officials implicated in serious crimes against detainees, the president did nothing.

Rather than disavow the war on terror paradigm, the president tinkered with it rhetorically.

Policy Stagnation

The fifth and current period is one of policy stagnation.

One has to resist the temptation of calling Obama’s approach to national security Bush-lite. It was Bush himself, in his later years in office, who was Bush lite.  Sadly, Obama’s tenure is, in some ways, more damaging for human rights than the years that immediately preceded it.

Because of who Obama is and how he is perceived, he can accomplish by default what President Bush himself had no possibility of achieving through his own efforts: he can normalize Bush’s “alternative” approach to fighting terrorism.

With Bush as president, practices such as indefinite detention without charge, denial of legal counsel during questioning, warrantless wiretapping, and the use of military commissions to try terrorism suspects would always be perceived as exceptional and extreme. Under the Obama presidency, in contrast, these practices are increasingly viewed as the presumptive starting point for dealing with terrorist suspects.  Indeed, his lack of strong leadership has emboldened extremist members of Congress to demand the use of ever harsher and more abusive techniques.

It should be no surprise, then, to hear a pageant of former Bush administration officials, from ex-CIA lawyer John Rizzo to former Defense Secretary Donald Rumsfeld, gloating in recent weeks about how Obama has embraced Bush’s core policies.  They are right about this, unfortunately, though they are wrong on the more important question of whether Obama’s failures are good for the country.

Joanne MarinerJoanne Mariner, a Justia columnist, is the director of Hunter College's Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law. She is the author of the Human Rights Watch report, No Escape: Male Rape in U.S. Prisons. She is a co-author of the new Human Rights Watch report, “In the Name of Security: Counterterrorism Laws Worldwide since September 11.”
Posted In Government, Politics
Print this page

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

 

Access this column at http://j.st/n9P