This article originally appeared at TruthOut.org
By Marjorie Cohn
Fifteen years ago, 19 men committed suicide and took more than 3,000 people with them. The 9/11 attacks constituted crimes against humanity and should have been treated as such, with investigations and prosecutions of those who helped plan and finance the horrific crimes.
If they had been armed attacks by another country, George W. Bush could have lawfully used military force in self-defense under the United Nations Charter. But they were not. Neither Afghanistan nor Iraq had attacked the United States or any other UN member country. In fact, Iraq had not invaded any country for 11 years, since it went into Kuwait. Neither Afghanistan nor Iraq posed an imminent threat to any nation.
None of the hijackers hailed from Afghanistan or Iraq. In fact, 15 came from Saudi Arabia. Nevertheless, the Bush administration invaded both Afghanistan and Iraq and changed their regimes, killing and injuring untold numbers of people. The resulting vacuum in Iraq has been filled by Islamic State, which formed and became powerful after the US invaded that country.
Bush declared a “war on terror.” Terrorism is a tactic, not an enemy and you don’t declare war on a tactic. Yet Bush invoked the 9/11 attacks to shred the Constitution. And although he avoids using the phrase “war on terror,” Barack Obama is continuing Bush’s perpetual war.
Bush’s War on Civil Liberties
Bush did not confine his war on terror to other countries. He mounted a wholesale assault on civil liberties here in the United States.
He rammed the USA PATRIOT Act through a shell-shocked Congress that had rejected its provisions prior to 9/11. The act enhanced the government’s ability to conduct surveillance and created a crime of “domestic terrorism,” which was used to target political activists who protest government policies. It is defined so broadly that it has been used to go after environmental and animal rights groups.
Bush inaugurated a new program of COINTELPRO-style surveillance, in which the government used wiretapping without judicial authorization. A similar policy was banned by a Republican-controlled Congress with the passage of the 1978 Foreign Intelligence Surveillance Act (FISA) after the FBI used it to target civil rights leaders like Martin Luther King, Jr.
In violation of FISA and the Fourth Amendment, Bush signed an executive order establishing the Terrorist Surveillance Program. It authorized the National Security Agency (NSA) to wiretap people within the United States with no judicial review. The NSA has eavesdropped on untold numbers of private conversations. It has combed through large volumes of telephone and internet communications flowing into and out of the United States, collecting a vast amount of personal information that has nothing to do with national security.
Bush ordered federal agencies to refuse to honor requests under the Freedom of Information Act, an important vehicle for citizens to hold the government accountable by requesting, receiving and publicizing public records.
In particular, three developments on Bush’s watch have had a chilling effect on protected First Amendment activity: the shift from reactive to preemptive law enforcement; the enactment of domestic antiterrorism laws; and the relaxation of FBI guidelines on the surveillance of Americans.
Bush also indefinitely detained hundreds of men and boys of Arab, Muslim and South Asian descent in the United States and Guantánamo, Cuba, without charges or suspicion of terrorist ties.
Bush & Co.’s Illegal Torture Program
Nearly 800 individuals have been held indefinitely at Guantánamo, most without charge, in violation of the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified.
Prisoners released from Guantánamo report having been tortured and subjected to cruel treatment. They describe assaults, prolonged shackling in uncomfortable positions and sexual abuse. There are accounts of prisoners being pepper-sprayed in the face until they vomited, fingers being poked into their eyes, and their heads being forced into the toilet pan and flushed.
Those who engaged in hunger strikes were brutally force-fed, a practice that the United Nations Human Rights Commission called torture. Thirty-two attempted suicides took place in an 18-month period.
As evidence of torture leaked out of Abu Ghraib prison in Iraq, a Guantánamo-Iraq torture connection was revealed. General Geoffrey Miller, implicated in setting torture policies in Iraq, had been transferred from Guantánamo to Abu Ghraib specifically to institute the same harsh interrogation procedures he had put in place at Guantánamo.
In late 2014, the Senate Select Committee on Intelligence released a 499-page executive summary of its torture report. It said the CIA used “rectal feeding” without medical necessity on prisoners. A mixture of pureed hummus, pasta and sauce, nuts and raisins was forced into the rectum of one detainee. “Rectal rehydration” was also utilized to establish the interrogator’s “total control over the detainee.”
The interrogation policy that permitted torture and abuse came from the top. Bush, Dick Cheney, Condoleezza Rice and John Yoo admitted they participated in decisions to subject prisoners to waterboarding. This involves pouring water into the nose and mouth to make victims feel like they’re drowning. Waterboarding has long been considered torture, which is a war crime. Indeed, the United States hung Japanese military leaders for the war crime of torture after World War II.
The CIA engaged in extraordinary rendition, sending men to other countries where they were viciously tortured, in violation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That treaty, which the US has ratified, is unequivocal. It says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
Yet the Bush administration’s legal mercenaries, including John Yoo and Jay Bybee, wrote memos with twisted reasoning that purported to justify torture, and advised high government officials how to avoid criminal liability under the US War Crimes Act.
Obama Continues the War on Terror
When the US ratified the Torture Convention and the Geneva Conventions, it agreed to punish those who commit torture and war crimes.
And the Constitution mandates that the president “take care that the laws be faithfully executed.” But Obama has refused to prosecute the Bush administration war criminals, saying, “We need to look forward, as opposed to looking backward.”
Like his predecessor, Obama uses the “state secrets” privilege to block judicial inquiry into the US’s extraordinary rendition and surveillance programs.
Obama continues to wage the war on terror, although he doesn’t use that moniker.
Declaring the whole world a battlefield, the Obama administration has vastly expanded the use of armed drones that began during the Bush administration. Deadly missiles are killing and maiming people in seven countries: Iraq, Afghanistan, Syria, Libya, Pakistan, Yemen and Somalia. And Obama continues to fight the war in Afghanistan, leaving 8,400 US troops and special operations forces there.
Like Bush’s fateful regime change in Iraq, Obama’s invasion of and regime change in Libya created space for Islamic State to proliferate.
Under the Obama administration, the US military continues to force-feed hunger-striking prisoners at Guantánamo.
Terror as Blowback Against US Foreign Policy
Both the Bush and Obama administrations have conducted the war on terror by combating the symptoms of terrorism rather than grappling with its root causes. They have succeeded in maintaining an atmosphere of fear, shifting the national discourse away from the reasons why the US is hated.
That hatred dates back to the stationing of US troops at the holy sites of Islam in Saudi Arabia, the killing of one million Iraqis — half of them children — with punishing sanctions during the 1990s, and the United States’ uncritical support of Israel’s occupation of Palestinian lands. The hatred is exacerbated by the perpetual war the US is waging in Afghanistan and much of the Middle East.
Contrary to his periodic proclamations about transparency, Obama has continued his wars in obscurity, except in cases where he has been forced to reveal information through the Freedom of Information Act.
We owe a debt of gratitude to courageous whistleblowers like Edward Snowden, Chelsea Manning, John Kiriakou and others, who have stripped the veil of secrecy from the US torture, drone and surveillance programs. Obama has responded to their truth-telling with prosecutions under the Espionage Act, rivaling all prior presidents combined in his aggressive pursuit of whistleblowers.
Meanwhile, with some 800 US military bases abroad, the tentacles of American Empire are reaching further and tightening their grasp.
In the words of Andrew Bacevich, “There is no strategy [for the war on terror]. None. Zilch. We’re on a multitrillion dollar bridge to nowhere, with members of the national security establishment more or less content to see where it leads.”
But there is a strategy for the American people to stand up to endless war. As Phyllis Bennis has suggested, we must call for “a massive reduction of the military budget,” slated at $619 billion this year. We must also “demand to replace the so-called global War on Terror with nonmilitary solutions,” since “killing people simply creates more terrorists.” And finally, we must “broaden efforts to end the US support — military, economic and diplomatic — for Israeli occupation and apartheid.”
There is little doubt that the permanent war on terror will continue in a Hillary Clinton or Donald Trump administration, stealing precious resources that could be used to fight climate change, enhance our educational and healthcare systems, and rebuild our crumbling infrastructure.
It is up to all of us to speak out, write and protest against endless war. That means pressuring Congress and the White House, holding demonstrations and inserting our opposition into the media and public debate. Our very survival depends on it.
Copyright, Truthout. May not be reprinted without permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild and on the advisory board of Veterans for Peace. Her books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law; The United States and Torture: Interrogation, Incarceration, and Abuse and Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website: MarjorieCohn.com. Follow her on Twitter: @M.