The Electronic Intifada 9 September 2021
This month there will be remembrances and memorials across the US about the people who lost their lives here during the 11 September 2001 attacks. It is appropriate and necessary that we also reflect on the illegal invasion and occupation of Afghanistan and Iraq and the unspeakable deaths and destruction caused by the Global War on Terror that followed the attacks: more than one million Iraqis; 164,000 people in Afghanistan; 80,000 Pakistanis; and countless more in Yemen, Somalia, Libya, Syria and Niger, and more we don’t even know about.
Today I want to focus on another aspect of this forever war. We can see over the last two decades that it was not terrorism but US counterterrorism and insurgency that upended fundamental US constitutional rights and international human rights law. In many ways, it has created the present situation which threatens the fabric of our so-called fragile democracy.
In the 1960s, the anti-war movement called for bringing the war home. Now, in some perverse way, we have brought the Global War on Terror home.
The policies and practices of counterterrorism were and are bipartisan, supported and expanded by presidents and members of both political parties. In 1996, even before the 9/11 attacks, President Bill Clinton – with bipartisan support by Congress (91 to 8 in the Senate) – passed the Anti-Terrorism and Effective Death Penalty Act, described as a law “to deter terrorism.”
It remains today – with higher penalties – one of the main legal structures to prosecute and imprison Muslims, Palestinians opposing occupation and others resisting US-supported oppressive governments.
Under this law, the secretary of state is empowered to make a list of foreign terrorist organizations with a limited right to challenge such designation. It also criminalizes any act that is considered to provide “material support” for a designated group (there are dozens of organizations designated as such).
These include First Amendment activity such as charitable giving, providing human rights training, or assisting groups making claims of human rights violations if considered under the direction of or in conjunction with a foreign terrorist organization, with penalties of up to 20 years in jail.
The designated terror groups have consisted almost entirely of those that oppose US occupation or policies, or oppose authoritarian allies of the US. Meanwhile, groups that were clearly involved in terrorism, like the Israeli military and settler groups, or the Mujahedin-e-Khalq, have never been listed or were removed under lobbying pressure.
Humanitarians imprisoned for decades
Under this law, the government need not show that such support was for acts of violence or otherwise illegal acts.
The leaders of the Holy Land Foundation – which was the largest US-based Islamic charity supporting humanitarian needs throughout the Middle East, including Palestinians living under Israeli occupation – were sentenced to up to 65 years in prison after two trials in Texas.
Hundreds of others, mostly Muslims living in the US, have been imprisoned under this statute.
Days after 9/11, Congress passed the Authorization for Use of Military Force against those involved in the attacks, without naming a specific enemy or geographical or temporal limitations.
This authorization continues in effect today. It has been interpreted by the government to extend to not only those involved in 9/11 but also to what it characterizes as “associated forces.”
This overbroad interpretation gives the government a blank check to use military force in Libya, Somalia, Niger, Iran, expanding congress’ power to declare war and allowing for endless wars. It is believed that since 9/11, US military force has been used in 19 different countries.
After the military authorization, President George W. Bush moved swiftly to carry out the invasion of Afghanistan, ostensibly to capture al-Qaida leader Osama bin Laden, who escaped to Pakistan. Hundreds of Afghans were captured and sent to secret US black sites or were sent to other countries to be horrifically tortured under “extraordinary rendition.”
In addition, illegal surveillance was conducted, seizing the contents of millions of phone calls and other communications in violation of the Constitution and without authorization of the Foreign Intelligence Surveillance Act of 1978, which requires approval of all foreign intelligence-gathering by a special court with secret proceedings.
In order to avoid federal and military law prohibiting torture, to say nothing of the Constitution, Bush had his lackeys in the justice department’s Office of Legal Counsel (John Yoo, now a law professor and Jay Bybee, now a judge at a federal appeals court) define torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
Those captured and tortured (many totally innocent) who were perceived as high-value detainees were then sent to Guantanamo prison, in occupied Cuban territory, and held indefinitely without charges.
As part of the War on Terror, hundreds more were captured after the invasion of Iraq under the lie that Saddam Hussein was involved with 9/11 and had weapons of mass destruction. They were imprisoned at Abu Ghraib, where they were humiliated by soldier guards, forced to be nude in front of female soldiers and physically abused and force-fed to stop hunger strike protests.
Within two months of 9/11, the more than 300-page USA Patriot Act (it begs the question of whether it was drafted before the attacks) was passed. This legalized broad, unconstitutional powers of surveillance that, up until then, had been done secretly in a program called Stellar Wind that was not even known to many members of the National Security Agency.
The Patriot Act created powers to secretly spy on US citizens and collect billions of metadata phone records – the numbers, dates and other identifying information of the senders and receivers of every phone call made in the US, including phone calls made to persons abroad. Shockingly, former National Security Agency director Michael Hayden said “we kill people based on metadata.”
The Patriot Act also authorized National Security Letters, which empower federal agents to obtain private telecommunications and customer records held by banks and other financial institutions without court approval. The provision meanwhile gags victims of such searches, prohibiting them from speaking publicly about it.
In challenging any judicial oversight to surveillance, William Barr, then executive vice president and general counsel for Verizon, stated that the Foreign Intelligence Surveillance Court was too restrictive and that judges were not competent to make decisions about surveillance.
The Patriot Act also permitted physical or electronic searches called “sneak and peek,” allowing agents with a warrant to enter a home in the absence of the resident or seize physical property and electronic communications and delay in notifying the target of the searches.
Meanwhile, under Section 702 of the Foreign Intelligence Surveillance Act, all data collected from US-based internet service and electronic communications providers were authorized to be automatically turned over to the National Security Agency.
In addition, the government was allowed to invoke states secrets privilege to prevent any civil suits challenging torture or surveillance.
At the same time that the shockingly narrow definitions to condone torture were set in place, and secret surveillance was being carried out, there was a growing anti-Muslim campaign in the US.
Anti-Muslim bigots were fanning the flames of fear and hatred while the FBI and US security state focused on Muslims living in America. The FBI organized 15,000 agents as it doubled down on infiltrating Islamic community centers, mosques and schools, looking to spy on and entrap Muslims with phony or exaggerated terrorism charges.
The federal government detained tens of Muslims without charges under the material witness statute, falsely claiming that if they were not held, these people were likely to flee. Hundreds were charged and convicted of providing “material support” or other criminal charges and many were offered reduced charges in exchange for information or for acting as informants.
Anti-Sharia laws were proposed in more than 40 states. Concerted efforts on social media platforms and by right-wing media equated Islam with terrorism. Nativist anger was on the rise.
But then the US elected a constitutional law professor who called the Iraq war a “dumb war” and talked about hope and change – the “hope” that counterterrorism and the attack on our civil liberties at home would be ended.
But, alas, that was not to be. It turned out that Barack Obama wanted a sustainable Global War on Terror, but without fear and hatred of Muslims.
He tried to moderate the War on Terror under the naive fallacy that destruction abroad would not damage US democracy.
On his third day in office, Obama initiated drone attacks in Pakistan that killed at least nine civilians. Throughout his tenure, Obama regularly approved, or had his subordinates approve murderous drone attacks, reportedly working from a secret White House “kill list.”
He opted for a supposedly cleaner way to kill suspected terrorists by air. During his presidency he was responsible for more than 500 drone strikes in Yemen, Somalia and Pakistan alone, not counting drone and airstrikes in Iraq and Syria. Since it was all done in secrecy, we will never know the real totals.
Drones attacked mosques, funerals and weddings, signature strikes that did not aim at a specific target but focused on general targets. Murder without due process, even targeting US citizens. The use of drones was the centerpiece of Obama’s counterterrorism strategy and Michael D’Andrea, the head of the drone strikes program, was the former director of the CIA counterterrorism center.
On 31 December 2011, Obama signed into law the National Defense Authorization Act, which specifically allowed the apprehension and indefinite military detention without trial of anyone, including US citizens, suspected of threatening the security of the homeland.
Obama promised to close Guantanamo but failed to do so (and proposed to put Guantanamo detainees in an Illinois prison rather than try them in federal courts in the US or release them). But he backed off of that promise when he received opposition from Congress and Guantanamo was never closed.
The “hope and change” president sanctioned military trials and secret surveillance. Despite all his efforts to placate the security state and the anti-Muslim nativists, many attacked him, calling a secret Muslim and supporter of terrorist networks.
Obama, like Bush, failed to make the Global War on Terror respect the constitution. Instead, he distorted the constitution to respect the war on terror.
His administration charged eight whistleblowers with the 1917 Espionage Act, including Edward Snowden, Chelsea Manning and a CIA agent who released information on agency torture – invoking this century-old law more frequently than all prior presidents combined.
Obama refused to hold accountable those who planned and carried out torture, spouting the absurd idea that we should look forward not backward, essentially providing immunity to all those who organized the torture.
Fear and hatred
While fear and hatred towards Muslims grew, protests of police killings in Ferguson and elsewhere saw supporters of the Black Lives Matter movement branded terrorists, as were the amorphous antifa.
Connected to all this fear and hatred was the growing anti-immigrant movement. “Terrorists” were coming in over the southern border and Obama responded by deporting some 2.7 million immigrants and by locking up unaccompanied children.
Many white Americans argued that dangerous immigrants were coming to the country to replace them. The US’s history of genocide against Native people and racial bigotry and violence was alive and thriving. The war against terrorism was brought home after years of brutal, murderous counterterrorism.
Should anyone have been surprised that all this fear of terrorism and racial hatred brought us Donald J. Trump?
Liberals who supported Obama now viewed the security state as the savior of US democracy. The CIA, US attorneys and the FBI were the heroes, invited by TV news programs to defend the rule of law and the constitution in opposition to Trump, despite all they did to undermine the rule of law and the constitution.
Does the evacuation of Iraq and now Afghanistan bring an end to the Global War on Terror?
Until we eliminate the US interests in policing the world with drones and other forms of airpower, and until the US ends its lust to control the Middle East, Latin America and Africa, the Global War on Terror abroad and its concomitant war at home will continue with all the violence and rights violations that entails.
This essay is adapted from a presentation made by the author at a gathering of peace groups in Chicago on 25 August 2021.
Michael Deutsch is a lawyer with the People’s Law Office in Chicago and has been defense counsel for Palestinian community leaders Muhammad Salah and Rasmea Odeh.
- civil liberties
- war on terror
- material support law
- Authorization for Use of Military Force
- George W. Bush
- Barack Obama
- Guantanamo Bay
- patriot act
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