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.

Restoring the Fourth Amendment: How We the People Can Win Over Washington

Despite promises of change, the Obama administration has proven itself either unwilling—or unable—to shift the paradigm driving increasingly invasive surveillance, or increasingly pervasive profiling according to race, religion, and national origin. Nearly halfway through the Obama administration's term, the battle to banish the Bush administration's policy legacy remains largely unfought, let alone won.

But this is no time for progressive and libertarian constitutionalists to throw in the political towel. While "change you can believe in" may have been a premature promise from our president, we at the grassroots enjoy ample opportunities to shift the landscape in DC.

Whether concerned by government spying, or the guilt by association apparent in profiling Latinos, African Americans, and Muslims, Arabs, and South Asians for various so-called "signature crimes," limits on local law enforcement authorities offer the potential to galvanize solidarity among communities of color. Measures restricting domestic intelligence operations can also attract the support of libertarians—including some elements of the Tea Party—disaffected by the Washington consensus favoring expanding executive power.

Chinese Artists Imprisoned -- Please Share

An artist friend of mine whom I met at the Vermont Studio Center Residency Program just sent this to me. I find it to be quite disturbing and encourage you to spread the word and, if you are so inclined, to write to the appropriate ambassadors (contact information below).

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Dear Friends,

I recently came across a catalogue for an exhibition called “Embracing the Uncarved Wood,” which Artistsfeatures some amazing hand-carved sculptural reliefs by a group of deaf sculptors from China. I read that these artists had formed a collective called the “True Words Workshop,” where they lived and worked together under the direction of two hearing teachers, Zhou Ning and Xiao Yixia, who are graduates of the Shandong Art Institute.

I wanted to learn more so I Googled them and what I’ve found out is extremely disturbing. Two years ago, Zhou Ning was arrested and last March he was sentenced to five years in prison. Both Zhou Ning and Xiao Yixia had already been subjected to repeated harassment, having been evicted from their house and having been arrested and imprisoned several times before. Their defense lawyer, Li Subin, who specializes in human rights cases, has suffered as well: his law firm has been closed down.

Apparently these two artists are practitioners of Falun Gong, a sort of philosophical mix of qi gong, Buddhism, Taoism and Confucianism. The Chinese government has outlawed it, along with many other non-approved belief systems. Amnesty International has condemned China’s treatment of Falun Gong prisoners, as has our own government.

I hear about political prisoners all the time, but since Zhou Ning is a fellow artist, I feel particularly connected to his case. I am asking you to take a moment to write letters or emails to the following people. Compose your own or, if it makes it easier, you can use what I’ve drafted below.

And please forward this to as many artists [and concerned individuals] as you can.

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Ambassador Jon Huntsman
United States Embassy
Number 55 An Jia Lou Lu
Beijing, China 100600
Email: AmCitBeijing@state.gov

Charlotte Oldham-Moore, Staff Director
Congressional Executive Commission on China
243 Ford House Office Building
Washington, DC 20515
Email: charlotte.oldham-moore@mail.house.gov (with a cc to the Director of the Prisoner database: steve.marshall@mail.house.gov )

Vanessa Jalet, Executive Assistant to Linda Downs
College Art Association
275 Seventh Avenue, 18th Floor
New York, NY 10001
Email: vjalet@collegeart.org (with a cc to Paul Jaskot, President, Board of Directors: pjaskot@depaul.edu)

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.

Losing Wars We Already Won (Part I): Torture vs. WWII

Over the past century, our nation has triumphed over two sets of aspiring global tyrants: the axis powers in WWII, and the Soviet Union in the Cold War. Our victories over these foes were, in each case, world-historical in scale and importance. Yet within less than a century, we now flirt with losing the principles those successes established.

First, our recent record on torture, and more recent failure to prosecute all officials involved in enabling it, undermines the legacy of international human rights we established after the Second World War. Second, after vindicating freedom, liberty, and individual privacy in the Cold War, we now dutifully submit to a surveillance state more intrusive than any that has ever existed in human history.

In other words, Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama's aim to “look forward, not backward,” may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.

WWII and Human Rights...

The allied powers fought the Second World War largely in the name of human rights, which we enshrined in its wake with a series of international institutions. The United Nations was perhaps the most ambitious example; others include various treaties setting baseline standards for (among many other things) the treatment of detainees during wartime.

International institutions to ensure collective security represented a major leap forward for humankind, akin to the Apollo moon landing 20 years later. Not since the Treaty of Westphalia in 1648 had international relations undergone so fundamental a transformation. A core tenet of the post-WWII era, established by the Nuremberg Trials of former Nazi officials, held that individuals bear criminal liability for violating international human rights regardless of what domestic laws my authorize their conduct. The “following orders” defense was soundly rejected and officials up and down the chain of command faced justice for war crimes.

We Americans have been called upon to apply these principles to our own leaders only 60 years later. But our willingness to preserve our earlier achievements has proven lacking.

...vs. Torture with Impunity

Despite public pressure from voices across the political spectrum, the Obama administration continues to sweep torture under the rug. And while the Holder Justice Department has demonstrated welcome independence by recently announcing a limited investigation led by a special prosecutor, it could be worse than none at all if senior officials enjoy effective immunity.

First, investigating only junior level scapegoats would set a legal precedent that decisionmakers can violate human rights with impunity. Second, overlooking senior officials who set torture policies would confer artificial legitimacy on the range of offenses that were officially approved, despite their international illegality. While the current cover-up threatens the rule of law and real accountability is necessary, scapegoating could be even worse than doing nothing.

Failing to follow the key Nuremberg precedents--that “following orders” cannot justify war crimes and that liability transcends the chain of command--weakens them in the future. Mere omission vindicates lawlessness: sitting on our hands or prosecuting only some individuals involved will undermine the international legal framework we erected after defeating the Axis powers.

Immunity for any officials involved in torture will lead to an unfortunately predictable result: a global race to the bottom in human rights standards. Every two-bit despot the world over will claim a license to torture, maim and perhaps even kill at will.

Rather than stand accountable to the international community, any accused torturer need merely cite the Holder precedents (allowing perceived necessity to justify war crimes and resurrecting the lame “following orders” defense) to escape justice for whatever manner of abuse they might concoct. Even today, torture by U.S. officials reportedly continues at Guantanamo Bay, where Immediate Reaction Forces have killed at least one detainee while administering brutal force feedings lacking even sanitation, let alone anesthesia.

Moreover, by eroding a principle so fundamental as the prohibition on torture, underinclusive prosecution renders more palatable the full range of other international law violations. If even torture doesn't justify prosecuting everyone involved, why would, for instance, poaching endangered species or violating the ban on ozone-producing chlorofluorocarbons (CFCs)?

When attempting to justify their desire to sweep torture under the rug, apologists argue from both sides of their mouths. Accepting the “following orders” defense, they suggest that investigators ignore wrongdoing by interrogators who committed torture, yet conversely demand that senior officials who issued those orders should also escape investigation (despite their even greater culpability). Apologists wish to avoid “chilling current intelligence operations,” but given the dismal performance of our intelligence agencies, a little transparency and accountability is long overdue.

Examining other examples of prosecution offers even more reasons to pursue a robust and thorough--rather than artificially limited--investigation. Unless expanded from its initial contours, prosecutor John Durham's investigation will allow the architects of torture policy to remain free, while only other country's torturers face justice (or for that matter, while non-violent offenders in America receive prison sentences for less severe crimes). The resulting contrast and lack of proportionality could erode the legitimacy of both the international legal regime generally, and our own criminal justice system, in one fell swoop. Few discrete decisions--and even fewer omissions--could do so much damage so quickly to such vital institutions.

Our failure to apply the Nuremberg precedents threatens to sacrifice a civilizational advance as major as the printing press. Perhaps we should be less surprised, however, given that U.S. torture policy boasts a long, unapologetic history across a disappointing number of contexts. The result will ultimately turn on how much (and how sincerely) we honor the sacrifice of veterans who died in WWII--and whether everyday Americans committed to the legacy of human rights they established see fit to raise our voices.

This article was originally posted on Huffington Post.