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It's Not Just About The President -- It's About The Presidency

It's Not Just About The President -- It's About The Presidency

As the dust settles over Election Day, it’s worth reflecting that it’s not only the election results that have been at stake, but the future of the presidency and its powers. Over the course of the first quarter of this century, the American presidency has accumulated ever more power, rendering the office increasingly less constrained by either Congress or the courts. With Donald Trump’s reelection, the slide toward a dangerously empowered president has reached a moment of reckoning, particularly when it comes to foreign affairs and warfare.

Throughout American history, presidents have repeatedly sought to increase their powers, nowhere more so than in the context of war. As historian James Patterson has pointed out, “War and the threat of war were major sources of presidential power from the beginning.” Whether it was George Washington’s insistence that he was the one to formulate foreign policy when it came to diplomacy, treaties, and more; Thomas Jefferson’s assertion of complete control over whether or not to attack the Barbary Pirates; James Polk’s decision to take actions which risked war with Mexico; or Abraham Lincoln’s “sweeping assertions of authority” in the Civil War era, executive claims to authority when it comes to matters of foreign relations and warfare have been a persistent feature of American history.

The twentieth century saw a continued rise in the powers of the presidency. As historian Jeremi Suri noted in his book The Impossible Presidency, the four terms of Franklin D. Roosevelt were a transformative moment, essentially multiplying the responsibilities of the president with the ultimate goal of “mak[ing] the national executive the dominant actor in all parts of American life.” The presidents who followed Roosevelt continued to display such enhanced powers, especially when it came to foreign affairs.

As legal scholar Matt Waxman has reminded us, FDR’s successor, Harry Truman, went to war in Korea without congressional authorization. Dwight D. Eisenhower, who did consult with Congress over the need to protect U.S.-allied Pacific coastal islands from possible Chinese aggression and, in his farewell address, warned against “the military-industrial complex,” still believed “that the president had broad powers to engage in covert warfare without specific congressional approval.” In fact, his successor, John F. Kennedy, exercised those powers in a major way in the Bay of Pigs incident. Richard Nixon unilaterally and secretly launched the invasion of Cambodia in 1970, and Ronald Reagan created a secret Central American foreign policy, while arranging the unauthorized transfer of funds and weaponry to the Nicaraguan rebels, the Contras, from the sale of U.S. arms to Iran, despite the fact that such funding was prohibited by an act of Congress, the Boland Amendment.

The Twenty-First Century

Even within the context of repeated presidential acts taken without congressional assent (or often even knowledge) and in defiance of the constitutional checks on the powers of the presidency, the twenty-first century witnessed a major uptick in claims of executive power. In the name of war, this century has seen an astonishing erosion of constraints on that very power, as Yale law professor Harold Hongju Koh details in his illuminating new book, The National Security Constitution in the Twenty-First Century.

At the dawn of this century, the attacks of September 11, 2001, led to an instant escalation of presidential power and executive unilateralism. In the name of national security, President George W. Bush issued an order that authorized the indefinite detention of prisoners in what quickly came to be known as the Global War on Terror. He also set up an offshore prison of injustice at Guantánamo Bay, Cuba, and authorized military commissions instead of federal court trials for terrorism suspects captured abroad.

Meanwhile, Congress and the courts consistently deferred to the will of the president when it came to actions taken in the name of that war on terror. One week after the attacks of 9/11, Congress passed the Authorization for the Use of Military Force (AUMF), which undermined its own power in Article I of the Constitution to declare war and weakened its powers of restraint on presidential actions carefully articulated in the 1973 War Powers Resolution (WPR), passed to guard against the very kind of secretive engagement in war that Nixon had unilaterally authorized in the Vietnam era.

Now, turning their backs on the power given them by the Constitution and the WPR, Congress, with that AUMF, acceded to the expansion of presidential powers and opened the door to the disastrous wars in Afghanistan, Iraq, and elsewhere early in this century. The president, it stated, was “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

In October 2001, Congress also passed the USA Patriot Act. It included an expansion of presidential power at home in the name of protecting the nation in the war on terror, including authorizing greatly expanded surveillance policies that would come to include, among other things, secret surveillance and searches that took place without evidence of wrongdoing, notably in Muslim communities in this country that were considered inherently suspect in the name of the war on terror.

As a result, when, in January 2009, Barack Obama entered the White House, his administration found itself with a strikingly expanded definition of the powers of the presidency on the table.

Obama’s Presidency

A former constitutional law professor, Barack Obama pledged to overturn some of the Bush administration’s most egregious, extralegal breaches, including the very existence of the Guantánamo Bay Detention Facility and the use of torture (or what the Bush administration had politely termed “enhanced interrogation techniques”) authorized by executive unilateralism as part of the war on terror. In what became known as “trust me” government, Obama also pledged to reform the excessive surveillance policies implemented in the war on terror. In 2013, David Cole, a civil rights attorney and currently the National Legal Director of the ACLU, credited Obama with making substantial “shifts” toward restraint by formally declaring an end to many of the Bush administration’s “most aggressive assertions of executive power.”

But while Obama did indeed trim some of the most striking excesses of the Bush era, his record of presidential reform fell significantly short. Jameel Jaffer, the founding director of the Knight First Amendment Institute, for instance, disputed Cole’s claims, citing the Obama administration’s continued reliance on illegal and extralegal policies that Bush’s aggressive actions had already put in play — among them, warrantless wiretapping, indefinite detention, and the military commissions to try prisoners at Guantánamo. In addition, as Jaffer pointed out, the Obama administration frequently relied on the powers granted the presidency in that 2001 AUMF to authorize targeted lethal drone strikes globally, as in the case of the drone-killing of U.S. citizen Anwar al-Awlaki, without further congressional authorization, by expanding the definition of “imminence” in order to appear to be complying with the international rule of law.

When it came to such targeted killings — a military tactic introduced under President Bush but greatly expanded during the Obama years for strikes in Pakistan, Somalia, and Yemen — the president reserved for himself the right to have the final say in authorizing such strikes. As the New York Times reported at the time, “Nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record. His actions have often remained inscrutable, obscured by awkward secrecy rules, polarized political commentary, and the president’s own deep reserve.”

Although he served as legal adviser to the Department of State in the Obama administration, in his warnings about the perils posed by the slide towards unilateral presidential powers, Harold Hongju Kou concedes that the president could have done more to curtail the Bush era enhancement of the powers of the president. “[T]he cautious Obama administration,” he writes, “succeeded in swinging the national security pendulum only part of the way back” to restraint on executive power via the courts and Congress. While the “cascade of illegality” that defined the Bush era’s war on terror was indeed somewhat addressed by Obama, it remained, Koh reminds us, “undercorrected” — including not seeking “stronger accountability for past acts of CIA torture, and the stubborn continuation of a Guantanamo detention policy.”

While President Obama adhered more closely to restraints on presidential power than his predecessor, his administration did not make the kinds of structural and procedural changes necessary to deter future presidents from following in the footsteps of the Bush administration, as we were soon to learn, since, as Koh points out, enhanced unilateral presidential and executive powers would be “sharply re-intensified” under Donald Trump.

The Trump Years

Indeed, the first Trump presidency vastly accelerated the claims of expanded presidential power. Jack Goldsmith and Bob Bauer, lawyers who worked in the Bush and Obama administrations, respectively, served, as they put it, “very different presidents” and hold “different political outlooks.” Yet they agree that the Trump administration took unchecked presidential authority to a new level. In their 2020 book, After Trump: Reconstructing the Presidency, they contended that “Donald Trump operated the presidency in ways that reveal its vulnerability to dangerous excesses of authority and dangerous weaknesses in accountability.”

And as they make all too clear, the stakes were (and remain) high. “The often-feckless Trump,” they wrote, “also revealed deeper fissures in the structure of the presidency that, we worry, a future president might choose to exploit in a fashion similar to Trump — but much more skillfully, and to even greater effect.” And with the Supreme Court’s recent decision upholding the immunity of Donald Trump for acts taken while in the Oval Office, the shackles that once tied presidential acts in wartime to Congressional authorization are arguably now fully off the table, should a president be determined to act on his or her own say-so. (As Justice Sonia Sotomayor wrote in her dissent, the ruling “will have disastrous consequences for the presidency and for our democracy,” arguing that it will, in essence, “let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”)

The Biden Years

When it comes to recognizing limits on presidential powers, President Joe Biden has had a distinctly mixed record. He immediately withdrew Trump’s executive order known as “the Muslim ban,” set out to close Guantánamo (but has not yet succeeded in doing so), rejoined the Paris climate accord, and revived international ties around the world that had been disrupted by Trump. And yet, that quintessential institutionalist, who prided himself on his ability to work with Congress, nonetheless veered in the direction of presidential unilateralism in the conduct of foreign affairs.

As Professor Koh put it: “In foreign affairs, even the longtime senator Joe Biden — who widely proclaims his love of the Senate — now operates almost entirely by executive fiat,” including a reliance on “classified policy memoranda, with minimal congressional oversight.” Overall, in fact, Biden issued more executive orders than any president since Richard Nixon. Though Biden wisely relied upon an interagency group of lawyers to advise him on national security decisions, following their advice, he issued “nonbinding political agreements, memoranda of understanding, joint communiques, and occasionally ‘executive agreements plus,’” just as Obama had done on the Paris climate accords and the Iran nuclear deal, relying on “preexisting legislative frameworks” rather than new Congressional authorizations. When it came to the war in Ukraine, Biden leaned heavily on “the coordinated use of sanctions, enhanced almost weekly post-invasion.” Most of those sanctions were set, as Koh also points out, “by executive orders and regulatory decrees,” rather than in consultation with Congress.

Our Future

A second Trump presidency will undoubtedly take unilateral presidential powers to a new level. After all, he already indicated that he might withdraw the U.S. from NATO and end support for Ukraine. Nor is Trump likely to be deterred by Congress. Reporting on Project 2025, the Heritage Foundation’s nearly 1,000-page prescription for a second Trump presidency, written primarily by former office holders in the first Trump administration, New York Times reporters Jonathan Swan, Charlie Savage, and Maggie Haberman reported that Trump “and his associates” plan to “increase the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House.”

In particular, Project 2025’s stance on nuclear weapons is a reminder of just how dangerous a president who refused to be restrained by law or precedent will be. After all, in his first term in office, Trump unilaterally pulled out of the Iran nuclear deal and reimposed sanctions on that country, leading its leaders to increase its nuclear capacity. Meanwhile, the march toward nuclear confrontation has accelerated worldwide. In response, Project 2025 argues for ramping up America’s nuclear arsenal yet more. “[T]he United States manifestly needs to modernize, adapt, and expand its nuclear arsenal,” the treatise declared, in order to “deter Russia and China simultaneously,” adding that the U.S. needs to “develop a nuclear arsenal with the size, sophistication, and tailoring — including new capabilities at the theater level — to ensure that there is no circumstance in which America is exposed to serious nuclear coercion.”

Consider all of that a frightening vision of our now all-too-imminent future: a president freed from the restraints of the constitution, unchecked by Congress or the courts — or by his cabinet advisors. In the words of MSNBC’s Ali Velshi, Project 2025 has set the stage for Donald Trump to be the very opposite of what this country’s founders intended, “a king,” surrounded not by “groups of qualified experts” but by “unblinking yes-men.”

(Dis)Trust in the Presidency

The growing power of the presidency has been taking place in plain view, as unilateral powers have accumulated decade after decade in the Oval Office, while the recent choice of president has also become a grim choice about the nature and powers of the presidency itself. Notably, the rise in executive powers has coincided with a creeping distrust of government in this country. Since the early 1960s, when nearly 80 percent of Americans said they trusted government “most of the time,” the public’s faith in this country’s federal government hovers at just over 20 percent, according to the Pew Research Center. And no wonder. When the office of the president refuses to accept the checks and balances that underlie the democratic system, the country’s trust in negotiated, reasonable, and restrained outcomes understandably falls away.

Sadly, in this era, the benefits of restoring the very notion of checks and balances that birthed the nation have come to seem ever more like a quaint dream.

Copyright 2024 Karen J. Greenberg

Karen J. Greenberg is the director of the Center on National Security at Fordham Law School. She is also the editor-in-chief of the weekly Aon CNS Cyber Brief. She is the co-author with Julian Zelizer of the new book Our Nation at Risk: Election Integrity as a National Security Issue.

Is There A Diplomatic Exit From Ukraine -- Or Is It Another 'Forever War'?

Is There A Diplomatic Exit From Ukraine -- Or Is It Another 'Forever War'?

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

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

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

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

Lessons Learned?

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

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

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

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

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

Beware Mission Creep

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

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

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

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

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

Honor the Law

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

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

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

Plan for an Ending

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

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

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

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

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

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

The Stakes

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

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

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

Karen J. Greenberg, aTomDispatch regular, is the director of the Center on National Security at Fordham Law and author most recently of Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump(Princeton University Press). Julia Tedesco conducted research for this article.

Copyright 2022 Karen J. Greenberg

Reprinted with permission from TomDispatch

Trump’s Secret Document Grab Reflects The Culture Of Official Washington

Trump’s Secret Document Grab Reflects The Culture Of Official Washington

Thanks to Donald Trump, secrecy is big news these days. However, as political pundits and legal experts race to expose the layers of document-related misdeeds previously buried at his Mar-a-Lago estate, one overlooked reality looms large: despite all the coverage of the thousands of documents Trump took with him when he left the White House, there’s been next to no acknowledgment that such a refusal to share information has been part and parcel of the Washington scene for far longer than the current moment.

The hiding of information by the former president, repeatedly described as “unprecedented” behavior, is actually part of a continuum of withholding that’s been growing at a striking pace for decades. By the time Donald Trump entered the Oval Office, the stage had long been set for removing information from the public record in an alarmingly broad fashion, a pattern that he would take to new levels.

The “Secrecy President”

As recent history’s exhibit number one, this country’s global war on terror, launched soon after the 9/11 attacks, was largely defined and enabled by the withholding of information — including secret memos, hidden authorizations, and the use of covert methods. During President George W. Bush’s first term in office, government lawyers and officials regularly withheld information about their actions and documents related to them from public view, both at home and abroad.

Those officials, for instance, legalized the brutal interrogations of war-on-terror prisoners, while conveniently replacing the word “torture” with the phrase “enhanced interrogation techniques” and so surreptitiously evading a longstanding legal ban on the practice. The CIA then secretly utilized those medieval techniques at “black sites” around the world where its agents held suspected terrorists. It later destroyed the tapes made of those interrogations, erasing the evidence of what its agents had done. On the home front, in a similarly secretive fashion, unknown to members of Congress as well as the general public, President Bush authorized the National Security Agency to set up an elaborate and far-reaching program of warrantless surveillance on Americans and others inside the United States.

Consider that the launching of an era of enhanced secrecy techniques. No wonder Bush earned the moniker of the “secrecy president.” Only weeks after the 9/11 attacks, for instance, he put in place strict guidelines about who could brief Congress on classified matters, while instituting new, lower standards for transparency. He even issued a signing statement rebuking Congress for requiring reports “in written form” on “significant anticipated intelligence activities or significant intelligence failure.” To emphasize his sense of righteousness in defying calls for information, he insisted on the “president’s constitutional authority to… withhold information” in cases of foreign relations and national security. In a parallel fashion, his administration put new regulations in place limiting the release of information under the Freedom of Information Act (FOIA).

President Obama also withheld information when it came to war-on-terror efforts. Notably, his administration shrouded in secrecy the use of armed drones to target and kill suspected terrorists (and civilians) in Libya, Pakistan, Somalia, and Yemen. Official reports omitted reliable data about who was killed, where the killings had taken place, or the number of civilian casualties. As the American Civil Liberties Union concluded, administration reporting on civilian harm fell “far short of the standards for transparency and accountability needed to ensure that the government’s targeted killing program is lawful under domestic and international law.”

And well beyond the war-on-terror context, the claim to secrecy has become a government default mechanism. Tellingly, the number of classified documents soared to unimaginable heights in those years. As the National Archives reports, in 2012, documents with classified markings — including “top secret,” “secret,” and “confidential” — reached a staggering 95 million. And while the overall numbers had declined by 2017, the extent of government classification then and now remains alarming.

Erasing the Record Before It’s Created

President Trump’s document theft should be understood, then, as just another piece of the secrecy matrix.

Despite his claim — outrageous, but perhaps no more than so many other claims he made — to being the “most transparent” president ever, he turned out to be a stickler for withholding information on numerous fronts. Taking the war-on-terror behavioral patterns of his predecessors to heart, he expanded the information vacuum well beyond the sphere of war and national security to the purely political and personal realms. As a start, he refused to testify in the Mueller investigation into the 2016 presidential election. On a more personal note, he also filed suit to keep his tax records secret from Congress.

In fact, during his time in office, Trump virtually transformed the very exercise of withholding information. In place of secrecy in the form of classification, he developed a strategy of preventing documents and records from even being created in the first place.

Three months into his presidency, Trump announced that the White House would cease to disclose its visitor logs, citing the supposed risk to both national security and presidential privacy. In addition to hiding the names of those with whom he met, specific high-level meetings took place in an unrecorded fashion so that even the members of his cabinet, no less the public, would never know about them.

As former National Security Advisor John Bolton and others have attested, when it came to meetings with Russian President Vladimir Putin, Trump even prohibited note-taking. In at least five such meetings over the course of his first two years in office, he consistently excluded White House officials and members of the State Department. On at least one occasion, he even confiscated notes his interpreter took to ensure that there would be no record.

Congress, too, was forbidden access to information under Trump. Lawyers in the Department of Justice (DOJ) drafted memos hardening policies against complying with congressional requests for information in what former DOJ lawyer Annie Owens has described as “a policy that approached outright refusal” to share information. In addition, the Trump administration was lax or even dismissive when it came to compliance with the production of required reports on national security matters. Note as well the reversal of policies aimed at transparency, as in the decision to reverse an Obama era policy of making public the number of nuclear weapons the U.S. possessed.

But don’t just blame Donald Trump. Among the most recent examples of erasing evidence, it’s become clear that the Secret Service deleted the text messages of its agents around the president from the day before and the day of the January 6th insurrection. So, too, the phone records of several top Immigration and Customs Enforcement officials were wiped clean when they left office in accordance with directives established early in the Trump presidency. Similarly, the phone records of top Department of Defense and Department of Homeland Security officials were scrapped. In other words, recent reports on the way Trump regularly shredded documents, flushed them down the White House toilet, and generally withheld presidential papers — even classified documents, as revealed during the Mar-a-Lago search — were of a piece with a larger disdain on the part of both the president and a number of his top officials for sharing information.

Erasing the record in one fashion or another became the Trump administration’s default setting, variations on a theme hammered out by his predecessors and taken to new levels on his watch.

A Perpetual Right to Secrecy?

Admittedly, before Trump arrived on the scene, there were some efforts to reverse this pattern, but in the long run they proved anemic. Barack Obama arrived at the White House in January 2009 acknowledging the harm caused by excessive government secrecy. Emphasizing transparency’s importance for accountability, informed public debate, and establishing trust in government, the new president issued an executive order on his first full day in office emphasizing the importance of “transparency and open government” and pledging to create “an unprecedented level of openness in government.”

Nearly a year later, he followed up with another executive order setting out a series of reforms aimed at widening the parameters for information-sharing. That order tightened guidelines around classification and broadened the possibilities for declassifying information. “Our democratic principles require that the American people be informed of the activities of their government,” it read. Six years later, Obama’s Director of National Intelligence James Clapper produced a report on the “principles of Intelligence transparency for the intelligence community” and a “transparency implementation plan” that again aimed at clarifying the limits, as well as the purposes, of secrecy.

And Obama’s efforts did indeed make some headway. As Steven Aftergood, former director of the Federation of American Scientists, concluded, “The Obama administration broke down longstanding barriers to public access and opened up previously inaccessible records of enormous importance and value.” Among other things, Aftergood reported, Obama “declassified the current size of the U.S. nuclear arms arsenal for the first time ever,” as well as thousands of the president’s daily briefs, and established a National Declassification Center.

Still, in the end, the progress proved disappointing. As Washington Post columnist Margaret Sullivan put it, the Obama administration’s record on transparency was among “the most secretive” in our history. She also castigated the president’s team for “setting new records for stonewalling or rejecting Freedom of Information Requests.” As an Associated Press analysis of federal data verified, the Obama administration did indeed set records in some years when it came to not granting those FOIA requests.

Executive distaste for sharing information is certainly nothing new and has often been linked, as during the war on terror, to misrepresentations, misdeeds, and outright deceit. After all, half a century ago, the administration of President Richard Nixon (of Watergate fame) defended the right to withhold information from the public as an effective way of covering up the American role in Vietnam. Those withheld materials, eventually released by the New York Times, showed that, over the course of four administrations, the national security state had misled the public about what the U.S. was doing in Vietnam, including hiding the secret bombing of neighboring Cambodia and Laos.

Still, let’s recognize what Donald Trump has, in fact, done. Though no longer president, he’s now taken the withholding of government information well beyond the borders of the government itself and deep into his private realm. In doing so, he’s set a dangerous precedent, one that brought the FBI to his doorstep (after months of attempts to access the documents in less intrusive ways). The challenge now is to address not just Trump’s clumsy efforts to unilaterally privatize a government practice, but the systemic overreach officials have relied on for decades to withhold staggering amounts of information from the public.

The Biden administration is alert to this issue. Notably, President Biden reversed several of Trump’s classification decisions, including his policy of not reporting the number of American nuclear weapons. More systematically, the National Security Council recently launched an effort aimed at revising the nation’s unwieldy classification system, while Director of National Intelligence Avril Haines has stated her intention to review the excessive classification of government documents.

In a 2022 letter to Congress, Haines pointed to the downside of a government that refuses to share information. “It is my view,” she wrote, “that deficiencies in the current classification system undermine our national security, as well as critical democratic objectives, by impeding our ability to share information in a timely manner, be that sharing with our intelligence partners, our oversight bodies, or, when appropriate, with the general public.”

True to her word, in the three months following that statement of allegiance to transparency, Haines has released a steady flow of material on controversial topics, including unclassified reports on everything from the origins of Covid to climate change to an assessment of the “Saudi government’s role in the killing of Jamal Khashoggi.”

Still, despite such efforts, the powers that be are arguably being hoisted on their own petard. After all, Donald Trump followed in the wake of his predecessors in sanctioning expansive secrecy, then made it a be-all and end-all of his presidency, and now claims that it’s part of his rights as a former president and private citizen. As the head of a political movement, now out of office, he’s done the once unthinkable by claiming that the veil of secrecy, the right to decide what should be known and who should know it, is his in perpetuity.

The horror of his claim to untethered secret authority — no wonder some of his MAGA followers refer to him as their “god-emperor” — violates the very idea that a democracy is a pact between individual citizens and elected officials. The valid response to the holding of documents at Mar-a-Lago shouldn’t just be reclaiming them for the public record or even the clear demarcation of the law as it applies to a private citizen as opposed to a president (though both are essential). What’s needed is a full-throated demand that policies of secrecy, allowed to expand exponentially in this century without accountability or transparency, are destructive of democracy and should be ended.

Copyright 2022 Karen J. Greenberg

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and author most recently ofSubtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump(Princeton University Press). Julia Tedesco conducted research for this article.

Reprinted with permission from Tom Dispatch.

Can The January 6 Hearings Save Our Democracy From 'Institutionalism'?

Can The January 6 Hearings Save Our Democracy From 'Institutionalism'?

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

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

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

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

Over The Cliff Of False Institutionalism

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

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

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

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

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

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

In the Trump years, Special Counsel Robert Mueller’s report on the 2016 presidential elections stopped short of indicting the former president. Mueller’s task was to investigate potential Russian interference with that election and possible coordination with Trump in that endeavor. Mueller ultimately backed away from indicting the president for obstruction of justice, despite the evidence he had, citing an obscure 1973 Department of Justice memo from the Watergate era (reaffirmed in 2000). The memo argued that such an act would distract the president from the pressing affairs of his office.

“The spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” the memo said, and Mueller’s mind was evidently still boggled when it came to Donald Trump and the coming 2020 election.And then there was the failure to investigate the institutional problems that accompanied the country’s initial handling of the Covid pandemic. There has never been the slightest accountability for the denialism that greeted its initial stages, nor any attempt to document what went wrong then.

In June 2021, Sens. Bob Menendez (D-NJ) and Susan Collins (R-ME) called for the creation of “an independent 9/11-style commission” to understand how the public had been left so unprotected by the Trump administration in those early pandemic months and to discuss what lessons should be drawn from it for a future pandemic. Senator Dianne Feinstein (D-CA) sponsored such an approach in the Senate, but nothing ever happened.

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

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

Institutionalists Vs. Accountability

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

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

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

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

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

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

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

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

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

Can The January 6 Hearings Change The Game?

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

In addition to the public, the Department of Justice has been a target audience for those hearings. As Rep. Liz Cheney, the committee's vice-chair, said: “The Justice Department doesn’t have to wait for the committee to make a criminal referral. There could be more than one criminal referral.”

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

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

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

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

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

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

Copyright 2022 Karen J. Greenberg

Karen J. Greenberg is the director of the Center on National Security at Fordham Law School and author most recently ofSubtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump(Princeton University Press). Lindsey Sullivan contributed research for this article.

Reprinted with permission from TomDispatch

Are We Forever Captives of America’s Forever Wars?

Are We Forever Captives of America’s Forever Wars?

Reprinted with permission from TomDispatch

As August ended, American troops completed their withdrawal from Afghanistan, almost 20 years after they first arrived. On the formal date of withdrawal, however, President Biden insisted that “over-the-horizon capabilities” (airpower and Special Operations forces, for example) would remain available for use anytime. “[W]e can strike terrorists and targets without American boots on the ground, very few if needed,” he explained, dispensing immediately with any notion of a true peace.

But beyond expectations of continued violence in Afghanistan, there was an even greater obstacle to officially ending the war there: the fact that it was part of a never-ending, far larger conflict originally called the Global War on Terror (in caps), then the plain-old lower-cased war on terror, and finally — as public opinion here soured on it — America’s “forever wars.”

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

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

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

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

Repeal Of The 2001 AUMF

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

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

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

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

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

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

Closing Gitmo

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

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

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

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

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

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

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

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

Redefining the Threat

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

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

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

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

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

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

Copyright 2021 Karen J. Greenberg

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

US Army Solider in Afghanistan

Will The Forever Wars Become Forever Policy?

Reprinted with permission from TomDispatch

It ended in chaos and disaster. Kabul has fallen and Joe Biden is being blamed (by congressional Republicans in particular) for America's now almost-20-year disaster in Afghanistan. But is the war on terror itself over? Apparently not.

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

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

The Pivot Abroad

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

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

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

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

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

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

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

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

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

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

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

The Pivot At Home

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

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

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

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

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

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

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

A Call For Review

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

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

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

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

If only.

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

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

President Biden speaking, with Attorney General Merrick Garland, right, and Vice President Harris.

Are We Ever Going To Hold Anyone Accountable In America?

Reprinted with permission from TomDispatch

America has an accountability problem. In fact, if the Covid-19 disaster, the January 6th Capitol attack, and the Trump years are any indication, the American lexicon has essentially dispensed with the term "accountability."

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

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

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

How We Got Here

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

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

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

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

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

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

Reluctance In The Halls Of Accountability

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

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

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

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

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

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

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

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

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

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

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

The Path Forward — Or Not?

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

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

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

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

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

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

If Afghan War Ends, Will Guantanamo Finally Shut Down?

If Afghan War Ends, Will Guantanamo Finally Shut Down?

Reprinted with permission from TomDispatch

The Guantánamo conundrum never seems to end.

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

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

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

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

Biden And Guantánamo

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

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

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

As those senators wrote,

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

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

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

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

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

Prisoners Of War

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

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

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

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

A second potential loophole exists when it comes to the release of prisoners as that war ends. The administration of George W. Bush rejected the very notion that those held at Guantánamo were prisoners of war, no matter how or where they had been captured. As non-state actors, according to that administration, they were exempted from prisoner of war status, which is why they were deliberately labeled "detainees."

Little wonder then that, despite Secretary of Defense Austin's position on Guantánamo, as the New York Timesrecently reported, Pentagon spokesman John Kirby "argued that there was no direct link between its future and the coming end to what he called the 'mission' in Afghanistan."

In fact, even if that congressional authorization for war and the opening of Guantánamo on which it was based never were solely linked to the conflict in Afghanistan, it's time, almost two decades later, to put an end to that quagmire of a prison camp and the staggering exceptions that it's woven into this country's laws and norms since 2002.

A "Forever Prison"?

The closing of Guantánamo would finally signal an end to the otherwise endless proliferation of exceptions to the laws of war as well as to U.S. domestic and military legal codes. As early as June 2004, Supreme Court Justice Sandra Day O'Connor flagged the possibility that a system of indefinite detention at Guantánamo could create a permanent state of endless legal exceptionalism.

She wrote an opinion that month in a habeas corpus case for the release of a Guantánamo detainee, the dual U.S.-Saudi citizen Yaser Hamdi, warning that the prospect of turning that military prison into a never-ending exception to wartime detention and its laws posed dangers all its own. As she put it, "We understand Congress' grant of authority for the use of 'necessary and appropriate force' to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles." She also acknowledged that "if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that [the] understanding [of release upon the end of hostilities] may unravel. But," she concluded, "that is not the situation we face as of this date."

Sadly enough, 17 years later, it turns out that the detention authority may be poised to outlive the use of force. Guantánamo has become an American institution at the cost of $13 million per prisoner annually. The system of offshore injustice has, by now, become part and parcel of the American system of justice — our very own "forever prison."

The difficulty of closing Guantánamo has shown that once you move outside the laws and norms of this country in a significant way, the return to normalcy becomes ever more problematic — and the longer the exception, the harder such a restoration will be. Remember that, before his presidency was over, George W. Bush went on record acknowledging his preference for closing Guantánamo. Obama made it a goal of his presidency from the outset. Biden, with less fanfare and the lessons of their failures in mind, faces the challenge of finally closing America's forever prison.

With all that in mind, let me offer you a positive twist on this seemingly never-ending situation. I won't be surprised if, in fact, President Biden actually does manage to close Guantánamo. He may not do so as a result of the withdrawal of all American forces from Afghanistan, but because he seems to have a genuine urge to shut the books on the war on terror, or at least the chapter of it initiated on 9/11.

And if he were also to shut down that prison, in the spirit of that letter from the Democratic senators, it would be because of Guantánamo's gross violations of American laws and norms. While the letter did not go so far as to name the larger war-on-terror sins of the past, it did at least draw attention directly to the wrongfulness of indefinite detention as a system created expressly to evade the law — and one that brought ill-repute to the United States globally.

That closure should certainly happen under President Biden. After all, any other course is not only legally unacceptable, but risks perpetuating the idea that this country continues to distrust the principles of law, human rights, and due process – indeed, the very fundamentals of a democratic system.

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

Close Guantánamo Now

When Will America Step Back From The Global War On Terror?

In the first two months of Joe Biden's presidency, you could feel the country holding its breath. Sheltered in place, hidden behind masks, unsure about whether to trust in a safe-from-pandemic future, we are nonetheless beginning to open our eyes collectively. As part of this reemergence, a wider array of issues — those beyond Covid-19 — are once again starting to enter public consciousness. Domestically, attempts to repress (or preserve) voting rights have been consuming activists and dominating headlines, along with this country's missing infrastructure and a need to raise the minimum wage. The foreign affairs agenda isn't far behind. From rising great-power rivalries, notably with China and Russia, to cyberattacks like the Solarwinds hack that affected agencies across the government, to the question of whether American troops will leaveAfghanistan, a growing number of issues loom for the administration, Congress, and the public in the months to come.

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

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

Meanwhile, there is still, at best, indecision about whether the U.S. will pull its last troops out of Afghanistan by the May 1st deadline set during the Trump administration as part of a deal with the Taliban. President Biden recently termed meeting that date "tough." Others have called hesitancy about the May 1st deadline a step towards an escalation in violence and "even more deaths" in a nearly 20-year-old "unwinnable war." November has now been floated by the Biden administration as a more "reasonable" deadline.

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

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

Three Ways To Begin To End The War On Terror

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

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

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

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

The AUMFs

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

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

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

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

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

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

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

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

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

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

Targeted Killings

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

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

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

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

Guantánamo

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

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

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

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

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

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

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

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 National Security State, and the forthcoming Subtle Tools: The Dismantling of Democracy from the War on Terror to Donald Trump (Princeton, 2021). Julia Tedesco provided research for this article along with Jonathan Alegria and Matthew Ruane.

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Is America Turning Into A 'Failed State’?

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.

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Why Accountability In America Is Gone — And How To Restore It

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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."

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Now It's America That Needs To Be Saved

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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..."

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How Coronavirus Advances Trump’s Goals

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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.

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Contemplating An Unfounding Father

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 Timesreported, "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

What Child Detentions At The Border Are Telling Us

What Child Detentions At The Border Are Telling Us

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.

Redacting Democracy: What You Can’t See Can Hurt You

Redacting Democracy: What You Can’t See Can Hurt You

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.

Defining Down Citizenship In The Age Of Trump

Defining Down Citizenship In The Age Of Trump

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