After September 11: What We Still Don’t Know

1.

After September 11, 2001, it is often said, “everything changed.” The shock of that day, on which nearly three thousand civilians were murdered, still reverberates, affecting politics, law, and policy here and abroad. But ten years later, it is worth asking what, precisely, did and did not change, particularly with respect to law, liberty, and security.

One of the most important lessons of the past decade may be that the rule of law, seemingly so vulnerable in the attacks’ aftermath, proved far more resilient than many would have predicted. President George W. Bush’s administration initially rejected the constraints of law as inconvenient obstacles on the path to security. But the administration was eventually forced to adapt its response to legal demands. The American constitutional system ordinarily relies on courts and checks and balances to impose legal restrictions on government officials. But in this period, with one significant exception, restraint of government was brought about neither by judicial enforcement of constitutional law nor by legislative checks on executive power, but by civil society’s demands for adherence to basic principles of human rights. Ten years and one administration later, the threats, both to our security and to our liberty, are far from over. But the experience of the last ten years shows the importance of maintaining public pressure for fidelity to our core principles as we enter the second decade of the “war on terror.”

Much has changed since September 11. The United States launched two wars, one against the country that harbored al-Qaeda, the other against a country that did not. The federal government undertook the largest bureaucratic reorganization since the New Deal, creating the Department of Homeland Security, the Office of the Director of National Intelligence, and the National Counterterrorism Center. The FBI shifted its focus from law enforcement to intelligence-gathering and preventing terrorism, aggressively employing informants and provocateurs to “flush out” would-be terrorists before they acted. Congress expanded the government’s authority to gather intelligence on people in the US and to prosecute even speech and association that allegedly gave “material support” to terrorist groups.

How much are we spending on counterterrorism efforts? According to Admiral (Ret.) Dennis Blair, who served as director of national intelligence under both Bush and Obama, the United States today spends about $80 billion a year, not including expenditures in Iraq and Afghanistan (which of course dwarf that sum).¹ Generous estimates of the strength of al-Qaeda and its affiliates, Blair reports, put them at between three thousand and five thousand men. That means we are spending between $16 million and $27 million per year on each potential terrorist. As several administration officials have told me, one consequence is that in government meetings, the people representing security interests vastly outnumber those who might speak for protecting individual liberties. As a result, civil liberties will continue to be at risk for a long time to come.

The most radical responses to September 11 were undertaken unilaterally by the Bush administration in the first couple of years following the attacks. It imprisoned hundreds of people it called “enemy combatants” indefinitely, sought to keep them beyond the reach of courts or the law, and denied them even basic Geneva Convention protections, such as humane treatment—protections the United States had afforded its foes in all previous armed conflicts. It “disappeared” suspects into secret CIA prisons, or “black sites,” holding them incommunicado and refusing to acknowledge even the fact of their detention for years at a time. We still don’t know a good deal about the secret prisons or those who were detained there.

The government held suspects without trial or even hearings, and subjected them to torture and cruelty, including waterboarding, slamming them into walls, and forcing them into painful stress positions for hours at a time. It “rendered” still other suspects to security services in countries, such as Syria, Egypt, and Morocco, that we had long condemned for using torture as a tool of interrogation, so that they could torture them for us.

In addition, the Bush administration unilaterally created “military commissions” to try prisoners. As originally formulated, they would have permitted the execution of defendants on the basis of evidence gained from torture, without any independent judicial review. It authorized the National Security Agency to conduct warrantless wiretapping, including of US citizens, in direct violation of a federal law that made such surveillance a crime. And it subjected more than five thousand Arab and Muslim foreign nationals within the United States to preventive detention—not one of whom stands convicted of a terrorist offense. Its rationale for many of these actions, formulated by a young Justice Department lawyer, now a Berkeley law professor, John Yoo, was that as commander in chief, the president was free to take any action he deemed necessary to “engage the enemy,” even if Congress or international law expressly forbade it. In short, the president was above the law.

2.

Times like these test the limits of the rule of law. The nation wanted security, and an administration none too sensitive to civil liberties in the best of times took that demand as a mandate to thrust legal restrictions aside. And who could stop it? The United States was the most powerful country in the world and, at least militarily, easily outmuscled any other nation. The group that had attacked us in such a brutal and cold-blooded manner had few friends beyond the Taliban. And the American population was unlikely to object to measures that sacrificed the rights of others—Arabs and Muslims, and especially Arab and Muslim foreigners—for American security. Had you asserted, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the attacks of that day, you would have been met with derision.

Yet the Bush administration was forced to retreat on all of these fronts. When the memorandum authorizing the CIA to use waterboarding and other forms of torture and cruelty was leaked and published by The Washington Post, the administration retracted it. When conservative New York Times columnist William Safire, among others, condemned the military commissions for the absence of judicial review, then White House Counsel Alberto Gonzales wrote an Op-Ed column claiming that the President never meant to deny judicial review—despite having said exactly that in his original order. And after The New York Times revealed the NSA’s illegal warrantless wiretapping program, the administration was compelled to suspend it.

In a series of extraordinary cases reviewing the administration’s asserted authority to hold “enemy combatants” beyond the reach of the law, the Supreme Court repeatedly rejected the administration’s position that judicial review was unavailable, even after Congress had expressly sought to insulate the detentions from judicial review. The Court overruled the administration’s position that the Geneva Conventions were inapplicable to al-Qaeda detainees, thereby confirming that they had a right to humane treatment. The Court also refuted the administration’s position that it could hold even US citizens as “enemy combatants” without a hearing and an adequate opportunity to defend themselves. And it declared the President’s scheme for military commissions illegal. Despite his contention that the courts had no authority to intrude upon his power as commander in chief, President Bush had to comply.

None of the administration’s retreats was voluntary. In each instance, it acted reluctantly, adhering to legal constraints only because it felt that it had no choice. In some instances, moreover, it sought to give the impression that it was complying with the law, while secretly continuing to act lawlessly. Thus, when the Justice Department retracted its August 1, 2002, “torture memo,” it wrote, in secret, a series of further memos that continued to give the CIA a green light to employ waterboarding and other inhumane and coercive interrogation tactics for six more years.² And while it transferred detainees out of the CIA’s secret prisons in Romania, Poland, and elsewhere when it became clear that they were protected by the Geneva Conventions, it kept the prisons open for potential future use. Still, by the second term of the Bush administration, US counterterrorism policy had stepped substantially back from its post–September 11 origins.

In his presidential campaign, Barack Obama vigorously attacked the Bush administration’s lawless ways, and promised meaningful reform. Immediately upon taking office, he closed the CIA’s secret prisons, barred the use of “enhanced interrogation techniques,” and vowed to close Guantánamo within a year. He released the previously secret Justice Department memos that had authorized torture and cruel treatment, in the President’s own words, “to ensure that the actions described within them never take place again.” In May 2009, he delivered a major speech on the importance of fighting terrorism within the rule of law, insisting that “time and again, our values have been our best national security asset.”

President Obama expressly renounced his predecessor’s theory that the commander in chief had unilateral power to violate the law, and maintained instead that his authority was limited by the scope of Congress’s Authorization to Use Military Force, issued shortly after September 11. And when, in 2010, a panel of the US Court of Appeals for the D.C. Circuit ruled that the president’s authority to detain was not bound by the laws of war, the Obama administration took the extraordinary step of arguing that the court had granted it too much power. It argued to the full court that the president’s authority is indeed constrained by the laws of war. The appeals court then rejected the panel’s prior reasoning as unnecessary to the result.

These developments suggest three conclusions. First, the values of the rule of law are more tenacious than many cynics and “realists” thought, certainly than many in the Bush administration imagined. The most powerful nation in the world was forced to retreat substantially on each of its lawless ventures.

Second, there is no evidence that the country is less safe now that the lawless measures have been rescinded. Bush administration defenders often assert that its initial responses were driven by necessity, but the fact that we remain reasonably secure under a more law-bounded regime refutes that claim. Indeed, even some of Bush’s own security experts now recognize that our success rests on resisting overreaction. Michael Leiter, head of the National Counterterrorism Center under Presidents Bush and Obama, maintained at the Aspen Security Forum in July that the way to defeat terrorism is “to maintain a cultural resilience,” and that if we do not overreact, “our basic principles that have held our country together…can continue to do so.”

Third, the choice to jettison legal constraints has inflicted long-lasting costs. The principal reason that we have yet to bring any of the September 11 conspirators to justice, ten years after their abominable crimes, is that we chose to “disappear” and torture them, thereby greatly compromising our ability to try them. And the decision to deny those at Guantánamo any of the most basic rights owed enemy detainees turned the prison there into a symbol of injustice and oppression, exactly the propaganda al-Qaeda needed to foster anti-Americanism and inspire new recruits and affiliates.

3.

The Constitution created a divided government to limit overreaching by any one branch, and established judicial review to ensure that we would have a government “of laws, not men,” as Chief Justice John Marshall put it. In ordinary times, that structure functions reasonably well. But in times of crisis, it has proved inadequate. In World War I, Congress made it a crime to speak against the war, the executive prosecuted hundreds for doing so, and the Supreme Court upheld the sentences. In World War II, Franklin D. Roosevelt’s administration interned more than 110,000 people of Japanese descent, and neither Congress nor the Supreme Court tried to stop it. And in the McCarthy era, Congress and the Truman administration imposed guilt by association on Communist “sympathizers,” and the Supreme Court did nothing to restrain them until the Senate had censured McCarthy and he and his allies had lost power and public influence. In each crisis, the political branches were more likely to goad each other on than to impose limits, and the Supreme Court either expressly affirmed what went on or looked the other way.

This time was different. As before, the executive overreacted. As before, Congress imposed no meaningful limits. But this time the Supreme Court, breaking from its past, stood up to the President. It insisted that it was responsible for reviewing detentions during wartime, rejected claims that it must defer to the executive, ruled that military detainees must be accorded Geneva Conventions protections, and, most extraordinarily, kept the courthouse door open for the Guantánamo detainees even after Congress and the President, acting together, had unequivocally sought to close it.

Still, it would be wrong to say that the Supreme Court was the only, or even the principal, checking mechanism. The Court’s decisions were in truth quite limited. Two decisions addressed only whether Guantánamo detainees could be heard in court, but said nothing about the law that would apply once their claims were adjudicated. Since then, many district courts have ruled that Guantánamo detainees should be released for lack of evidence, but those decisions can be appealed. In each case that the Obama administration has appealed, it has won in the D.C. Circuit; the Supreme Court, in turn, has declined to exercise further review. Thus, in nearly ten years, not a single detainee has been released by order of a court. (The administration has forgone appeals in some cases and released the detainees, but given its record in the court of appeals, these releases were a matter of choice, not legally compelled.)

The Supreme Court’s ruling that a US citizen was entitled to due process upon being held as an “enemy combatant” failed to specify the particular procedures due him, and the administration avoided further court review, releasing the detainee on condition that he resettle in Saudi Arabia. And the Court’s decision declaring President Bush’s military commissions illegal rested only on statutory grounds, which Congress promptly overruled.

Beyond these cases, the Court has done nothing to halt the government from overreaching its legitimate constitutional powers. In a case I argued, it ruled that Congress could constitutionally make it a crime to advocate for peace and human rights as a form of “material support” to a disfavored group, the Kurdistan Workers Party in Turkey. It dismissed suits against Attorney General John Ashcroft for mistreatment of September 11 detainees and for abuse of the “material witness” statute to lock up a Muslim man without probable cause. And it has declined to review several cases challenging the executive’s aggressive uses of secrecy, torture, and rendition.

Yet despite the fact that no detainee has been released by court order, more than 600 of the 775 people once held at Guantánamo Bay have been released. Torture and inhumane treatment are no longer official US policy. The NSA spying program now has a statutory footing and is subject to judicial approval and oversight. Widespread preventive detention of Muslim and Arab immigrants in the United States has not been repeated. There have been no reports of rendition to torture in years. And the CIA’s black sites are closed.

If these changes cannot be attributed to judicial enforcement or congressional mandates, what was the moving force? The answer is not to be found in the institutions of government, but in civil society—in the loosely coordinated political actions of concerned individuals and groups, here and abroad. Following September 11, many organizations took up the task of defending liberty—among them the American Civil Liberties Union, the Center for Constitutional Rights, Human Rights First, Human Rights Watch, the Council on American-Islamic Relations, and the American Arab Anti-Discrimination Committee. Most of these groups did not even exist in the McCarthy era, our nation’s last security crisis.

Many individual defenders of liberties also spoke out, including Lord Steyn, a former British Law Lord who labeled Guantánamo a “legal black hole”; 175 members of Parliament who signed an amicus brief on behalf of Guantánamo detainees in the first detainee case to reach the Supreme Court; several retired US generals and admirals who insisted on the importance of adhering to the Geneva Conventions; many members of the press, who not only disclosed some of the worst abuses but published countless editorials on the importance of adhering to constitutional and human rights; and individual members of Congress, especially Senators Pat Leahy, Dick Durbin, and Bernie Sanders, and Representatives John Conyers Jr., Jerrold Nadler, and Keith Ellison. These individuals and organizations issued statements, held hearings, filed lawsuits, wrote reports and articles, and tirelessly insisted that the rule of law should not be abandoned in the pursuit of security.

But of course it’s not only that American civil society mobilized in defense of liberty. Civil society mobilizes around a lot of issues, and as often as not it is unable to make much, if any, headway. That the public criticism of government repression was effective also attests to the residual power of the ideals encompassed in the rule of law—liberty, equality, fair process, and dignity. Those values were strong enough, when pressed by a wide range of voices, to restrain the highest officials of the most powerful country in the world. Margaret Mead famously warned that one should “never underestimate the power of a few committed people to change the world.” One might add that one should also never underestimate the power of appeals to the rule of law.

4.

Still, President Obama’s administration has fallen short in a number of critical ways. He has continued to rely on broad claims of secrecy, invoking the “state secrets privilege” to block lawsuits seeking redress for victims of torture and extraordinary rendition. He has dramatically expanded a program of targeted killings using unmanned drones, without setting forth the general procedures or criteria he is employing. Killing the enemy during wartime is not illegal, of course, but assassinating people outside of war is. As long as the contours of the targeted killing program remain secret, we cannot know whether it accords with basic principles of constitutional and international law.

Obama has also defended a sweeping interpretation of the laws prohibiting “material support” to designated terrorist groups. His then solicitor general, Elena Kagan, told the Supreme Court in 2010 that the law makes it a crime even to file an amicus brief on a designated group’s behalf. By a divided vote, the Court upheld the statute, but the dissenting justices—Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor—made it clear that a much narrower reading, limited to aid intended to further terrorism, was available had the administration chosen to adopt it.³

Now the administration is defending on appeal a conviction, under the same statute, of members of the board of the Holy Land Foundation, the nation’s largest Muslim charity, who were sentenced to as much as sixty-five years in prison for providing humanitarian aid to hungry and indigent families in the West Bank—even though, according to the government’s own evidence, not a penny went to any group designated as terrorist, and not a penny was used for anything but humanitarian purposes. Lacking such evidence the administration argued that the board members’ provision of aid to small West Bank charities violated the law because they should have known the charities were affiliated with Hamas—even though the government had never before said so.

Obama has also failed to deliver on his promise to close Guantánamo, and backed down on his commitment to try terrorists in civilian court wherever possible. In both instances, he did so because of substantial opposition from members of Congress, many from his own party, so he is not solely or even primarily to blame. But on this subject, as on too many others, he has failed to lead.

But most disturbing, from the standpoint of resurrecting the rule of law, the administration has refused to confront honestly the nation’s past wrongs. As President Obama entered office, he sought to make a clean break with his predecessor. But at the same time, he has insisted that we look forward, not back. His administration has refused to conduct the criminal investigation that the Convention Against Torture requires wherever there are credible allegations that a person within our jurisdiction has committed torture. His Justice Department vetoed the recommendation of its own Office of Professional Responsibility that lawyers John Yoo and Jay Bybee be referred to their bar associations for disciplinary action in view of their having failed to provide candid legal advice in drafting the “torture memos.” The administration has sought to derail efforts in Spain to investigate US responsibility for torture of Spanish citizens held at Guantánamo. And President Obama continues to oppose even a high-level commission to investigate and report on the nation’s departure from the rule of law and descent into torture, abduction, and disappearances.

Obama appears to believe that such an investigation would be divisive, and might undermine his efforts to portray himself as above partisan wrangling. But division is a fact of life in Washington these days. And being above the fray is not an unmitigated good; some things are worth fighting for. A legal and moral accounting of the wrongs we have done should be high on the list.

Because so much was done under the veil of secrecy, much remains unknown about the extent of the illegality. Mark Danner’s publication in these pages of the Red Cross’s report on the abusive interrogations of “high-value” detainees provides a glimpse at the horrors US agents inflicted.⁴ But we do not even know how many people US officials have abducted, rendered, disappeared, tortured, or killed. We do not know the extent of the injuries suffered, and still being suffered, by those we abused. We still know relatively little about the mistreatment of most of the Guantánamo detainees. We have not apologized to even a single victim—not even to those, like Canadian citizen Maher Arar and German citizen Khaled al-Masri, who were targeted for renditions and torture based on misinformation, and have been cleared of any wrongdoing themselves.

Meanwhile, our former president in his memoir has proudly proclaimed that he personally authorized waterboarding—a practice we prosecuted as torture in the past when it was used against our troops. The former vice-president recently replied affirmatively when asked whether waterboarding should “still be a tool” of interrogation. Failing to condemn such blatant wrongdoing in some official way leaves an open wound both for the victims and for the integrity of our system, and implies that the tactics were neither lawless nor immoral. The rule of law may be tenacious when it is supported, but violations of it that go unaccounted corrode its very foundation.

All of which only underscores the continuing need for an engaged civil society committed to the ideals of liberty and law. The past decade suggests that the rule of law may be stronger than cynics thought. It teaches that adherence to values of liberty, equality, and dignity is more likely to further than to obstruct our security interests. But it also illustrates our collective reluctance to confront our past, a reluctance that threatens to erode our most important values. As one of America’s greatest judges, Learned Hand, once cautioned, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”