If George W Bush’s abusive response to the September 11 attacks had been prosecuted rather than swept under the rug, Donald Trump would be less able to pursue his lawless policies. We can’t rewind history, but we can learn from our historic failure.
Twenty-five years ago, on a clear and crisp morning, I was sitting in the Human Rights Watch office in the Empire State Building with an unobstructed view of the World Trade Center towers as al-Qaida operatives flew two commercial jets into them. The horror of the attack required a response, but Bush and his vice-president, Dick Cheney, chose to react by throwing out the rulebook. They deployed torture and endless detention without trial in Guantánamo.
At first, Americans were so fearful of another al-Qaida attack that many accepted the Bush administration’s argument that extraordinary measures were required. But as the utter brutality of the response became apparent, dissenting voices grew more pronounced. Yet the reluctance of later administrations to repudiate these measures laid the foundation for Trump’s misconduct.
A May 2009 meeting I had with Barack Obama epitomized the problem. He had recently assumed office and invited me and several colleagues to the White House to discuss his counter-terrorism program. The meeting was disappointing.
Our top priority was securing prosecution of the senior Bush administration officials who had ordered the systematic torture of terrorist suspects. Obama declined, wanting to look forward, not back. His priority was working with Congress to secure healthcare reform (ultimately the Affordable Care Act, or Obamacare) as well as on issues such as education and climate change. He felt that prosecuting senior Bush officials would be too contentious.
Other steps had already been taken to end the torture. Public outrage, hastened by the leaked Abu Ghraib photographs of US servicemembers mistreating detainees in Iraq, led even the Bush administration to stop. The Detainee Treatment Act of 2005, sponsored by the senator John McCain, himself a torture victim, closed some of the legal loopholes used by the Bush administration to justify the unjustifiable. But no senior official was ever prosecuted for the torture.
That left a legacy of impunity that haunts us. Later presidents have not revived the torture, although the administrations of Joe Biden as well as Trump have continued the flow of military aid to Israel despite its systematic torture of Palestinian detainees.
Yet the deliberate use of excessive force by Trump’s deportation agents suggests confidence in a similar impunity for today’s declared crisis du jour: immigration. The Trump justice department has closed its eyes even when immigration officials gratuitously shoot, and sometimes kill, people.
Bush’s lengthy detention of suspects without trial at Guantánamo has had even greater lethal consequences. Ordinarily, a criminal suspect must be charged and tried within a reasonable time or released. But the Bush administration often had no evidence to justify charges beyond confessions secured by torture. The military commissions designed to allow prosecution despite the torture proved to be travesties that to this day have not even begun the trial of the principal 9/11 suspects.
The legal device that the Bush administration used to justify endless detention without trial was to call the suspects “enemy combatants”. In war, it is possible to hold opposing combatants without trial until the end of the armed conflict, but there was no armed conflict with al-Qaida, only a series of horrible terrorist attacks.
Bush concocted the “war on terror”, but it wasn’t a real war because there was no organized military force on the other side to justify invoking the rules of war. Rather, the rhetoric was a contrivance to sidestep the requirements of criminal prosecution.
At the time, I argued that allowing this legal subterfuge could have dangerous consequences. If a declared but fake enemy combatant could be held indefinitely without charge, why could he not also be shot? After all, in war, there is no duty to capture combatants from the other side. So long as they are not in custody, they can be killed.
I made the argument in the meeting with Obama as a reason to close Guantánamo – to charge or release all its detainees. I couldn’t imagine that the US government would really start to shoot suspects whom it could detain. But that is what Trump is now doing, not with alleged al-Qaida terrorists but with drug suspects, using a similar theory.
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Like Bush, Trump has concocted a war, this time with drug traffickers, even though there is no organized military force on the other side fighting the United States. He then declared suspected traffickers in boats in the Caribbean and eastern Pacific to be “narcoterrorists”. His aim is to justify summarily killing them by drone rather than capturing and prosecuting them. Trump has taken the Bush theory, modified it for the new enemy, and intensified the consequences.
Precursors to these murders can be found in the actions of the Obama and Biden administrations. They summarily killed people in Yemen and north-western Pakistan but at least maintained the pretense, though untenable, that these terrorist suspects posed an imminent threat to the United States because arrest was impossible in the relatively lawless terrain of these distant lands. That is, they invoked an exception in policing rules that allows lethal force rather than the fiction that these people were enemy combatants.
But that misuse of policing rules isn’t available for the drug suspects whom Trump is targeting because the US Coast Guard has a long tradition of successfully interdicting them at sea. Trump thus relies on his fake war to order them murdered instead.
The lesson I take is that when past abuses are glossed over rather than prosecuted, they set precedents that can come back to haunt us. It is never easy to establish the rule of law when the perpetrators are powerful officials. An administration rarely prosecutes itself, and later administrations have their own priorities. Addressing the past is often believed to require too much political capital.
But the rule of law is important. It is a value worth upholding even at a price. It is too late to address the Bush-era atrocities, but it is not too late to address Trump’s. He won’t do it, but we should insist that the next administration does. Meanwhile, state and international prosecutors should start now.
