The greatest casualty of 9/11: The America we knew

Shahid Buttar is the Executive Director of the Bill of Rights Defense Committee.


Reflections on the 9/11 attacks are important and moving. But most overlook the enduring legacy of the attacks, in the form of the vastly greater damage done to American principles over the past decade. Whether in the context of surveillance, torture, or the congressional cowardice that has enabled them, our leaders have sullied the legacy of an America that once inspired the world.

Earlier this summer, when facing a crucial accountability moment for an agency that continues to abuse the rights of millions of Americans, members of Congress asked no tough questions, avoided controversy, and submitted to a White House proposal to entrench the FBI leadership—at the same time as they fought to the knuckles over issues that Congress created in the first place by spending the country into a fiscal black hole and absurdly cutting taxes in the midst of multiple wars.

Most astounding in all this is Congress's apparent abandonment of its own institutional interests. Even in the face of documented lies by the FBI's leadership to congressional committees and repeated proof that Congress, the press, and the public are hearing only tiny slices of the whole truth, Congress has failed to use its many tools to seek transparency and investigate executive abuses.

Double Standards: How Our Lawlessness Strengthens Our Enemies

We have failed to even investigate torturers, yet we have prosecuted and imprisoned millions for lesser offenses. And we allow mass murderers the benefit of constitutional rights that we deny detainees at Guantanamo Bay and elsewhere. Until policymakers examine and fix these double standards, they will continue to undermine our foreign policy, as well as our domestic criminal justice system.

We now know that the Bush administration's torture policies proved horrendously counterproductive, in more ways than one: they eroded our allies' trust, undermined the ability of our non-state supporters to credibly defend our goodwill, generated bad intelligence in the form of forced—and predictably false—confessions, and undermined the morale of the professional interrogators who resisted their illegal (and idiotic) orders.

Worse yet, torture drove recruits into the arms of our enemies. According to veteran interrogators from multiple armed services, as well as the FBI, the number one reason militants flocked to Iraq was U.S. torture of detainees at Guantanamo Bay, Abu Ghraib, Bagram Air Force Base, CIA black sites, and the various foreign countries to which we continue to outsource torture through the extraordinary rendition program.

It was galling enough when, last year, all three branches of the federal government colluded to sweep evidence of torture under the rug. Confronted by thousands of abusive acts depicted in photos—some as severe as outright rape—DC united to protect its own. Acting at the behest of the CIA's discredited leadership, the administration lobbied Congress to amend a federal statute to grant the Defense Department an extraordinary authority to hide specific evidence of its own criminal trail, and the Supreme Court signed off on the deal.

Now, the double standard has come full circle...twice.

The first has plagued the Obama administration throughout its first year in office, and undermined the legitimacy of both its foreign policy, as well as our criminal justice system. On the one hand, people whose criminality stands hidden in plain sight—the former officials who unapologetically authorized torture, like Cheney, Addington, Bybee, and Yoo—remain free of even investigation, let alone prosecution. On the other hand, people of color face relentless prosecution and vicious penalties for non-violent offenses like drug possession, gambling, or even moving violations.

The second double standard is more recent, equally troubling, and potentially more problematic going forward. On the one hand, charges facing mercenaries apparently guilty of senselessly murdering nearly 20 Iraqis (in a bloody incident that touched off one of the most violent episodes of our six-year occupation) were dismissed by a federal district court on Thursday because the prosecution relied on statements given under promises of immunity, and thereby violated the Fifth Amendment right against self-incrimination.

On the other hand, the kangaroo courts at Guantanamo Bay we call "military commissions" don't even pretend to honor such rights, or others that are far more fundamental. Mercenaries who commit mass murder with profound international consequences were afforded robust constitutional protections barring the use of statements made under promises of immunity. Meanwhile, detainees held by the U.S.—who have included humanitarian workers and tourists swept up with "the worst of the worse" in the race to find scapegoats—held no right to exclude statements coerced by outright torture until last fall. Nor have they (for the most part) enjoyed the opportunity to assert any rights in impartial courts.

Rather than federal courts defending the rights of the accused against potentially arbitrary imprisonment, detainees plead their cases before biased military commissions seeking pre-ordained outcomes. Rather than exclude "compelled statements" like those of the exonerated Blackwater contractors, the military commissions operating in Guantanamo Bay (and those proposed by some policy analysts as a model for an even broader scheme to operate within the U.S. after the facility in Cuba has closed) invite unreliable evidence routinely rejected by federal courts.

The U.S. military commander in Iraq attempted to explain Thursday's decision with the lame and inaccurate assertion that it offered "a lesson in the rule of law." What the dismissal of the Blackwater contractors' charges actually demonstrates is quite the opposite: law requires consistency, whereas our approach to accountability for war crimes smacks of opportunism.

The imperatives to defend our nation's historical legacy, or the universal moral principles condemning torture, or the international legal system and its bedrock prohibition on torture, have apparently proven too quiet for the deaf ear of Washington institutions. No one seems to care that although torture is an international crime, officials complicit in it remain highly rewarded and occupy prestigious positions in government and the private sector.

But these double standards carry a price, well beyond the reputation and moral standing our nation has already lost.

We wage, in the war on terror, a battle for hearts and minds. And there is no surer way to lose that battle than to violate the rights of detainees, while vindicating those of mercenaries--or to prosecute politically powerless people for innocuous behavior, while praising officials who violate our species' most fundamental shared commitments. Such blatant inconsistency is lost neither on our enemies, nor the billions of individuals targeted by their recruitment efforts.

Officials increasingly wring their heads over a supposed threat of domestic radicalization. It is ephemeral in the first instance, but the concern points to a generally legitimate fear: people of any kind who grow alienated could eventually turn violent.

Some Muslims in America may indeed be growing increasingly alienated—which may seem understandable in the face of policies like "special registration" round-ups, guilt by association, pervasive surveillance, the infiltration of religious institutions and entrapment by ex-convicts paid handsomely by taxpayers, intrusive interrogations and searches, private sector employment and housing discrimination, hate crimes, bullying, and racial and religious profiling by law enforcement authorities. But as a group, we have not renounced the social compact by taking up arms, to any greater extent than former servicemembers could be said to have been categorically radicalized by virtue of some supporting right-wing militia groups like the Aryan Nation.

But while Muslim Americans remain loyal to the U.S., people in other countries have no compact with us to renounce. And they have no reason to accept our military presence except the principles we purport to uphold...at the same time that we overtly violate them without apology.

The strategy that could most effectively hamstring violent extremism abroad is the same one that would most effectively stop disaffected youth in America from turning to violence: applying our principles equally and with consistency. Honestly investigating our nation's record, and prosecuting those individuals responsible for international crimes, would go a long way to reassure observers that we take justice seriously. And allowing the rights and laws in which we have long taken pride to also govern the trials of those we militarily detain would relieve concerns about U.S. human rights abuses, both among international critics and domestic observers targeted by militant propagandists.

At the moment, we continue to fail on each front. Despite the President's pretty words in Cairo last fall, we Americans committed to rule of law and the Constitution remain waiting for that "change [we] can believe in." And it's not just us: the world—and the people over whose hearts and minds we struggle—are watching, too.

This article was originally published by Huffington Post.

Torturing the Rule of Law

Sixty years ago, U.S. Supreme Court Justice Robert Jackson left Washington to pursue what he later called "the most important, enduring, and constructive work of [his] life": prosecuting international war crimes committed during WWII. Justice Jackson helped usher in a new international regime that promised to help deter human rights abuses.

Unfortunately, Jackson's achievements have proven less enduring than he hoped. Our nation continues to undermine international law by sweeping torture under the rug, with serious implications going forward.

The Nuremberg Trials established a timeless principle: individuals are criminally liable for violating fundamental human rights, even if their governments authorized those violations. Some laws, Nuremberg held, transcend those of any nation.

We have fallen a long way in so short a time. Rather than enforce international principles we once pioneered by prosecuting former officials who enabled torture, our nation today violates those principles with impunity.

President Obama's focus on the future aims to transcend the political divisions deepened by his predecessors. But setting aside the past comes at a price.

Most concretely, failing to prosecute taints the debate on other "war on terror" policies. Preventive detention schemes, infiltrations of law-abiding groups based on constitutionally protected speech or religious activities, and secret warrantless surveillance programs each entail severe threats to the Constitution. They demand public debate.

But these debates have been skewed by the inclusion of former officials who, because they remain free from investigation, also remain free to champion their discredited policies in public. Former Vice President Dick Cheney, for example, vigorously defends the Bush administration's detention policy, despite clear evidence that torture hurt America in more ways than one.

Torture harmed our international relations with even allies like Britain, which curtailed cooperation with the CIA because of inhumane detainee treatment. Moreover, as the U.S. Air Force Major whose interrogations found the leader of Al-Qaeda in Iraq has written, "Torture and abuse became Al Qaida's number one recruiting tool and cost us American lives." Criminal prosecution would place the arguments of Bush administration apologists in the context they deserve.

Other costs of avoiding prosecution are less concrete but equally severe. For instance, failing to prosecute, by definition, erodes the rule of law. Law entails the consistent application of neutral principles across differing contexts. Yet our nation tolerates vast inequalities in prosecution. Between 2006 and 2007, over 320,000 Americans received prison sentences for non-violent offenses. In sharp contrast, among the senior officials responsible for authorizing torture, none have faced even a criminal investigation -- let alone charges, prosecution or a sentence.

Hundreds of lawyers across the country recently wrote the Attorney General and Congress to explain how this unequal justice undermines the legitimacy of our legal system. They wrote, "The severity of systemic disadvantages in the criminal process grows more disturbing -- and the system's legitimacy grows less secure -- when violations of our nation's most fundamental commitments carry no consequences for potential criminals who wield political influence."

Lawyers are not the only ones challenged by this bias. Nearly 500 teachers also raised their voices, noting how lawlessness impacts students: "We teach principles about our nation's history, founding, and governance that appear simply implausible...[T]he preferential treatment of senior officials who commit heinous crimes-relative to the school-to-prison pipeline that ensnares many of their peers for relatively innocuous misbehavior-does not escape [our students'] attention."

Thousands of other concerned Americans from all 50 states, including hundreds of health professionals and interfaith religious leaders, have also observed that our country's future ability to promote human rights elsewhere turns on whether we do so here at home today. We at the Bill of Rights Defense Committee invite other concerned Americans to join their call.

The Bush administration's assault on the rule of law helped propel President Obama into office. Rather than fulfilling his politically daunting campaign promises, however, the administration has chosen expediency over equal enforcement of the law.

The President himself has suggested time and again that it is ultimately up to "We the People" to defend our interests. The struggle to restore rule of law is one we will win, but only with the passionate participation of every concerned American.

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Reposted from Huffington Post. An earlier version of this article appeared in The August Free Press as an op-ed on June 27.

Injecting sanity into the torture/prisoners debate - waterboarding, anyone?

Okay, that was sort of/completely a joke. I am not actually advocating we waterboard Congressional leaders, members of the media, or advocates regarding how ridiculous these discussions have become. At least I won't suggest such measures publicly. Sorry...some more torture humor. But there are a few important points that I think these discussions are just flat-out missing overall. Some folks are raising them, but in general, we don't hear enough about them.

1. Let's drop the moral issue for a second. Not to say that's not important/the most important issue at stake here, but I wonder if we even need to get that far. The question that might make all this debate pointless is...is torture useful? Seriously...can we try to really get a handle on this question? I realize we're not going to get a definitive answer, but I do think we can get a consensus view about how reliable torture actually is. Remember, the whole point is for intelligence, not to break somebody. This is why back-engineering SERE for interrogation seems to be useless...it doesn't really seem to serve any intelligence purposes.