Law’s Fate under the US “War on Terror”
More than 20 years after the US declared “war on terror” we must assess the damage it inflicted on the core values embodied in the rule of law and the success of efforts to defend them. This blog expands on my two 2018 books, Law’s Wars and Law’s Trials, to include the Trump and Biden administrations. The fate of the rule of law — whose raison d’être is to restrain the state from abusing its power — itself depends on politics. Party control of the executive and legislature (which in turn shapes the appointment of judges) was the single most powerful determinant of responses to the numerous abuses under all four administrations.
Bush and Obama
- Law Matters
The Bush administration sought to clothe its transgressions in legal garb by soliciting opinions from apparatchiki in the Department of Justice Office of Legal Counsel (OLC). Journalists’ exposure of the abuses at Abu Ghraib led to publication of some opinions. Despite the deeply flawed legal reasoning, lawyers could not be disciplined because of law’s inherent indeterminacy, and the opinions immunized those who implemented them.
- Sunshine Is the Best Disinfectant
Despite the government efforts to hide abuses, secrecy is never hermetic. Military Police in Abu Ghraib narcissistically uploaded photos of their crimes to the web. Legislation and adjudication are public. Congress can force disclosure by the executive. Whistleblowers expose superiors. Each leak encourages others. And hiding information perversely valorizes it.
- As President Truman Said, “The Buck Stops Here”
There is dissent even within the executive. Bush’s wife, mother and Defense Secretary urged him to close Guantánamo. The FBI refused to join the CIA in torture. High-ranking military officers invoked the Geneva Conventions. And it mattered who was president. Obama promptly ended torture, shuttered the secret prisons, and vowed to close Guantánamo (although frustrated by Congress).
- The “People’s House”
From Obama’s first day in office, Republicans vowed to oppose every move and prevent a second term. Even when Democrats controlled Congress, they failed to block Bush’s nominees, though they were more successful in extracting information from the CIA.
- The Scales of Justice
The US betrayed its boast of “Equal Justice Under Law,” emblazoned on the Supreme Court pediment. After 9/11 it detained, abused, and deported hundreds of undocumented Muslims and forced tens of thousands of Muslim legal residents to register. Only non-citizens were subject to extraordinary rendition, detained in Guantánamo and secret prisons, tortured, tried by military commissions, or surveilled in the US. The US refused to let citizens be tried by foreign courts, exfiltrated those who committed crimes, and blocked foreign proceedings against CIA agents. It investigated friendly-fire incidents while exonerating US soldiers who killed foreign civilians. Yet local protests (especially when they obstructed military operations) could influence US tactics. Most Americans disregarded Edward Snowden’s revelations about NSA surveillance, confident it was preoccupied with foreigners.
- Guantánamo Bay
Proposals to transfer Guantánamo detainees to the US for trial, detention, or release were blocked by domestic objections. But some detainees deployed the powers of the weak, provoking punishment, engaging in self-mutilation and hunger strikes, attempting and committing suicide
- Criminal Prosecutions
Terrorism prosecutions resembled those for other crimes: appropriate charges, disclosure of exculpatory evidence, juror voir dire, timely proceedings, and zealous defense. In the rare trials, judges dealt fairly with disruptive pro se accused, excluded evidence tainted by torture, and carefully instructed jurors, who deliberated extensively, sometimes deadlocked by a single dissenter. But almost all prosecutions relied on material support statutes, which obviated the need to prove specific intent. Many accused were poor, members of racial minorities, ill-educated, and ignorant of the radical Islamist ideology allegedly inspiring them. The government exploited undercover agents and confidential witnesses, who gave or promised large monetary rewards, provided inoperable weapons, explained how to use them, and badgered accused into attempting criminal acts they might never have committed (and could not consummate). Yet entrapment defenses never succeeded, and almost all were sentenced to long prison terms.
- Habeas Corpus Petitions
After two Supreme Court decisions acknowledging that Guantánamo detainees could seek habeas corpus, the DC District and Circuit Court judges hearing petitions split into two camps, inhabiting incompatible normative and empirical universes. This produced many divided panels, en banc rehearings, and appellate reversals; judges deployed inflated rhetoric, even attacking judicial brethren. Justice Scalia pronounced (without evidence) that habeas corpus would have “devastating consequences” and “almost certainly cause more Americans to be killed.” A Fourth Circuit judge declared that Americans’ “paramount right” was not liberty but the commander-in-chief’s unlimited power. Republican appointees dominating the DC Circuit effectively nullified the Supreme Court’s decisions, resisted deferring to trial judges as fact finders, and created a presumption that the government’s evidence was true. And Bush’s Military Commissions Act of 2006 stripped courts of habeas corpus jurisdiction.
- Military Commissions
Bush convened military commissions to minimize the procedural rights of Guantánamo detainees and secure conviction. But their performance has been a fiasco. The first five prosecutions targeted small fry. Plea bargains prevented the commissions from demonstrating that detainees were “the worst of the worst” (in Rumsfeld’s typical hyperbole) or showcasing the virtues of US justice. Most received short sentences. Torture precluded some prosecutions, rendered other accused incompetent to stand trial, lowered the likelihood of conviction, and reduced sentences. The politicization became obvious when the Pentagon replaced three chief executives, and a fourth quit over torture. Six prosecutors resigned, the most aggressive becoming a defense lawyer. Commission judges completed tours of duty, were redeployed, or retired, compelling replacements to read immense records. Prosecutors illegally concealed evidence without suffering consequences. Defense lawyers had difficulty gaining and keeping the trust of clients who had been harshly abused in custody. The government repeatedly compromised lawyer-client confidentiality, sometimes deliberately.
- Courts Martial
The military harshly punished members who threatened or injured Americans, sentencing Chelsea Manning to 35 years for leaking classified information about civilian casualties in Iraq. But courts martial were far less effective in prosecuting those accused of causing such casualties. The fog of war obscured vision. Military investigators, inexpert and ignorant of local languages and cultures, delayed investigations, often losing what little evidence they collected. Soldiers share the omertà of all closed groups. They were trained to engage in behavior that would be criminal off the battlefield and goaded by superiors to compete for and display their “kills.” Law of war demarcations between permitted and prohibited behavior are unavoidably ambiguous and applied by a true jury of the accused’s peers — soldiers of at least equal rank, usually with similar combat experience. Commanders can modify both charges and penalties. The few civilian prosecutions of military contractors or ex-military almost always ended in conviction and harsh sentences. By contrast, the likelihood of court martial convictions for war crimes varied inversely with the accused’s rank: not one officer was convicted for the Abu Ghraib abuses.
- Civil Damages Actions
Civil damages actions by “war on terror” victims confronted obstacles that defeated nearly every plaintiff. Judges split into two camps. Some saw victims’ rights as more essential when national security was threatened. Others belittled plaintiffs’ injuries as the “inevitable” tragedies of war, where “risk taking is a rule,” invented novel doctrines like “battle-field preemption,” and accused plaintiffs’ lawyers of waging “lawfare.” The US paid $2 million to an American lawyer wrongly detained for two weeks based on a misread fingerprint but successfully moved to dismiss the claim of, Maher Arar, A Canadian wrongly rendered to Syria, where he was tortured for two years (his own government apologized and paid him Can$10 million). Both courts and compensation funds were far more solicitous of and generous to US victims of terrorism.
- Civil Liberties
Whereas both the military and the CIA violated Muslim beliefs to interrogate and humiliate detainees, the domestic civil liberties record was more mixed. Business travelers won some privacy protections, while Muslims or non-citizens were ejected or excluded from air travel. Islamophobic efforts to block the construction of mosques generally failed, and courts invalidated efforts to legislate against Sharia.
Comparisons across these domains suggest two generalizations: courts were more protective of the rule of law when they functioned as shields rather than swords; and party affiliation (measured by the appointing president) strongly predicted whether the judge would uphold the rule of law in habeas corpus petitions, civil damages actions by “war on terror” victims, civil liberties violations, and electronic surveillance.
Trump and Biden
Candidate Trump promised to “fill it up with more people that are looking to kill us.” After the election he vowed to “load it up with some bad dudes.” As president he revoked Obama’s closure order, tweeting (falsely): “122 vicious prisoners released by the Obama administration from Gitmo have returned to the battlefield.” Yet the US kept its promise to transfer Ahmed al-Darbi. And the Biden administration transferred two more, leaving 19 approved for release, 12 charged in military commissions and just seven law of war prisoners.
- Military Commissions
These stagnated or regressed. Lawyers for al-Nashiri (accused of bombing the USS Cole) sought to withdraw because of violations of lawyer-client confidentiality. The one remaining lawyer moved to abate the proceedings until the appointment of “learned counsel,” required in capital cases. The judge suspended the trial and retired shortly before it was revealed he had been appointed an Immigration Court judge by Attorney General Sessions — who supervised the military commissions! The DC Circuit nullified all his decisions. The Pentagon fired the Convening Authority for negotiating guilty pleas for the five High Value Defendants. The judge in that case retired and was replaced by one with just two years’ experience, who resigned after just eight months and was replaced by a judge with no death penalty or multi-defendant experience, who retired within a year; his replacement stepped down in less than two weeks when he “became aware of a significant personal connection to persons who were directly affected by the events of 9/11.” The next judge, whose appointment was delayed while he acquired the minimum two years of experience, had to read more than 33,660 pages of transcripts and decide 100 pending motions. The fourth judge in the Abd al-Hadi al-Iraqi case resigned to take a fellowship at the FBI. The only case reaching closure was Majid Khan, who pleaded; after sentencing him to 26 years (one more than the minimum), seven of the eight jury members urged clemency in light of his torture, and the Convening Authority reduced his sentence to 10 years, making him eligible for immediate release. More than 20 years after being authorized, the commissions remain unlikely to hold their first trial in the foreseeable future.
- Civil Damages Actions
Judges continued to favor terrorism victims and disfavor “war on terror” victims. The Trump administration removed Sudan from the State Sponsors of Terrorism list in exchange for paying terrorism victims $335 million. The Biden administration proposed letting plaintiffs who successfully sued the Taliban for the 9/11 attack execute the judgment against half of the approximately $7 billion in Afghan government assets frozen in the US after the Taliban victory.
- Civil Liberties
Trump declared that waterboarding “isn’t torture” and threatened “a hell of a lot worse” because “torture works.” He said Syrian refugees “probably are ISIS,” declared that those who burn an American flag (constitutionally protected speech) should face “loss of citizenship or a year in jail,” told police: “please don’t be too nice” with arrestees, threatened (illegally) to “deploy the U.S. military” if “a city or state refuses to take the actions that are necessary to defend the life and property of their residents,” called National Guard soldiers wounding journalists covering Black Lives Matter demonstrations “a beautiful sight,” and quoted a notorious racist Miami police chief: “when the looting starts, the shooting starts.” He promised that the Jan. 6 demonstration “will be wild” and exhorted the crowd: “if you don’t fight like hell you’re not going to have a country anymore.”
- Criminal Prosecution
Trump claimed to be above the law, boasting during his campaign: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” He politicized the criminal justice system by pardoning his cronies Michael Flynn, Roger Stone, and Paul Manafort. He compromised the integrity of terrorism prosecutions and pardoned Blackwater contractors convicted of the Nisour Square massacre. Yet courts displayed fairness: reducing sentences for cooperation, releasing prisoners based on new evidence or inadequate assistance of counsel, showing leniency when released from mandatory sentencing guidelines or swayed by the defendant’s mental health or rehabilitation.
- Courts Martial
Trump showed similar contempt for procedural justice in courts martial. Campaigning for president, he called Bowe Bergdahl a “dirty rotten traitor” who should be shot for alleged desertion and said Bergdahl’s dishonorable discharge in exchange for a guilty plea was “a complete disgrace.” A majority of the U.S. Court of Appeals for the Armed Forces found Trump’s behavior “troubling” and “inappropriate.” After Mathew Golsteyn was charged with killing and disposing of the body of an Afghan detainee, Trump said he would “be reviewing the case of a ‘U.S. Military hero,’” parroting language he had just heard on Fox News. When Golsteyn was punished administratively, Trump pardoned him, as well as Clint Lorance (convicted of murder), and reversed the demotion of Eddie Gallagher, acquitted of murder after an eye-witness changed his testimony at the last minute. Declaring “I will always stick up for our great fighters,” Trump denounced the military hierarchy as part of “the deep state” and fired the Secretary of the Navy who had demoted Gallagher. He also pardoned Michael Behenna, convicted of murdering a prisoner.
- Battlefield Crimes
Trump resisted the constraints of the law of war. During his campaign he said he would “take out [ISIS] families.” Although he later acknowledged “that the United States is bound by laws and treaties,” he asked rhetorically: “somebody hits us within ISIS, you wouldn’t fight back with a nuke?” Later he threatened to bomb sites “very high level & important to Iran & the Iranian culture.” The first counterterrorism action of his presidency (casually ordered over dinner at Mar-a-Lago) killed at least seven women and seven children under 14 (one of them Anwar al-Awlaki’s daughter). Trump eliminated Obama’s requirement of high-level interagency vetting of drone strikes, allowed the CIA to conduct them, and defined all of Somalia and three Yemeni provinces as “areas of active hostilities,” where some civilian deaths were acceptable. The military continued to deny such deaths, and Trump revoked an Obama requirement that the military disclose all those from airstrikes. He ordered the assassination of Iranian Major General Qasem Soleimani.
The most important lesson I draw from two decades of the US “war on terror” is that the fate of the rule of law — whose raison d’être is to restrain the state from abusing its power — paradoxically depends on politics. Party control of the White House and Congress was the single most powerful determinant of responses to the numerous abuses described above. The strong correlation between the party of the appointing president and how a judge decided persisted, even intensified, during the Trump administration (according to my preliminary analysis of cases concerning immigration, the pandemic, and the 2020 election). Although some of his actions were so outrageous that even judges appointed by other Republican presidents balked at condoning them, most Trump appointees displayed slavish loyalty. The conclusion is clear: defenders of the rule of law must engage in politics, including the electoral process, especially now that the Republican Party has embarked on a fierce campaign to disenfranchise all those suspected of leaning toward the Democrats.
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