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ONCE UPON A TIME, A NATION OF LAWS – FROM THE GLOBAL WAR ON TERROR
TO DONALD TRUMP’S SECOND TERM  
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Karen J. Greenberg
December 19, 2024
TomDispatch
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_ In fact, much (though admittedly, not all) of what we’re
witnessing today might simply be considered an escalation of the dire
turn that this country took after the attacks of September 11, 2001,
nearly a quarter of a century ago. _

US Constitution by Kim Davies is licensed under CC BY-NC-ND 2.0 /
Flickr // TomDispatch,

 

Post-election America finds itself in a panic. Voices from across a
wide political spectrum warn that the country stands on the precipice
of a potentially unprecedented and chaotic disregard for the laws,
norms, and policies upon which its stability and security have
traditionally relied. Some fear that the “new” president, Donald
Trump, is likely to declare a national emergency and invoke the
Insurrection Act, unleashing the U.S. military for mass deportations
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undocumented immigrants and for “retribution against” the “enemy
from within” as well as “radical left lunatics.” As the _New
Republic_‘s editor Michael Tomasky notes
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writing about the nomination of Kash Patel for the post of director of
the FBI, “We’re entering a world where the rule of law is turned
inside out.” 

The blame game for such doomsday fears ranges far and wide. Many
pinpoint the Supreme Court’s 2023 decision
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grant immunity to presidents for their core official acts, essentially
removing any restraints on Trump’s agenda of retribution and
revenge. Some, like Democratic Senators Elizabeth Warren and Richard
Blumenthal, see loopholes in the law as the basis for their concern
about the future and are urging Congress to pass legislation
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will place additional constraints on the deployment of the military on
American soil. Others argue that the Constitution itself is the
problem. In his new book
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Democracy Lasts Forever: How the Constitution Threatens the United
States_, Berkeley Law School Dean Erwin Chemerinsky even suggests that
it may be time for a new constitution.

But those involved in the fear and blame game might do well to take a
step back and reflect for a moment on how we got here. Today’s
crisis has been evolving for so many years now. In fact, much (though
admittedly, not all) of what we’re witnessing today might simply be
considered an escalation of the dire turn that this country took after
the attacks of September 11, 2001, nearly a quarter of a century
ago. 

“QUAINT” AND “OBSOLETE”

It was January 2002 when White House Counsel Alberto Gonzales used the
two words “quaint and obsolete,” whose echoes remain eerily with
us to this very day (and seemingly beyond). The occasion was a debate
taking place at the highest levels of the administration of President
George W. Bush in the aftermath of the 9/11 attacks. By then, this
country had invaded Afghanistan and authorized the opening of a new
detention center at Guantánamo Bay, Cuba, ominously offshore of
American justice, for captives of what already was being called the
Global War on Terror. Two weeks after the first prisoners arrived at
that prison camp on January 11th, administration officials were
already wondering which, if any, laws should apply when it came to the
treatment of such prisoners.

Gonzales, who was to become the attorney general in Bush’s second
term, laid out the options for the president. At issue was whether the
Geneva Conventions — a set of treaties established in the wake of
the atrocities of the Second World War — applied to the United
States in its treatment of any prisoners from its war on terror.
 

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BUY THE BOOK
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In a memo to President Bush
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Gonzales noted that Department of Justice lawyers had already
concluded, when it came to al-Qaeda and Taliban (Afghan insurgents in
2001, now in charge of the country) captives, the answer was no.
Gonzales agreed, stating that “the war against terrorism is a new
kind of war.” The laws of war, he told the president, were
“obsolete” in the current context and the laws and norms requiring
humane treatment for enemy prisoners had been “render[ed] quaint,”
given this new kind of war.  Accordingly, the Bush administration
took the position that the Geneva Conventions did _not_ apply to the
prisoners they had already captured. As a result, in the years to
come, the indefinite and arbitrary detention of about 780 men would be
institutionalized and disregard for the law would become a regular, if
secret, part of the war on terror — an approach that would lead to
the practice of torture at what came to be known as CIA “black
sites” globally.

Nor would that be the only situation in which old laws were deemed
outdated on national security grounds. 

THE WIDER FRAMEWORK

At the heart of such a rejection of the law was the determination that
the president had primary, if not ultimate, authority when it came to
national security. As Princeton historian Julian Zelizer has put it
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top Bush administration officials “claimed that executive power was
essential to fighting the war.” Members of Congress generally agreed
and facilitated the shift to ever more solitary executive power in the
name of war, setting a template for yielding some of its
constitutional and statutory powers in matters of war to the
president. One week after 9/11, Congress passed an Authorization for
the Use of Military Force (AUMF
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granted the president the power “to use all necessary and
appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons.”  

Subsequently, other laws were bent, bypassed, or even broken in the
name of keeping the nation safe. Congress also further enhanced the
powers of the executive by passing the USA Patriot Act which, among
other things, weakened the Fourth Amendment’s protections against
the surveillance of American citizens. Prior to 9/11, such protections
had remained strong. After 9/11, as Brown’s Costs of War
Project reports
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“These mass surveillance programs allow[ed] the U.S. government to
warrantlessly and ‘incidentally’ vacuum up Americans’
communications, metadata and content, and store their information in
data centers and repositories,” sacrificing standing protections in
the name of greater security.

Nor would that be the end of the matter. In the name of national
security, the country’s law enforcement entities would also turn
their backs on prohibitions against discrimination based on race,
religion, or national origin as laid out, for example, in the Civil
Rights Act of 1964. As a Costs of War Project report summed it up
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the “Special Registration” requirement “announced in 2002
required all males from a list of Arab and Muslim countries [to]
report to the government to register and be fingerprinted.”
According to the ACLU
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that program (known as NSEERS) would end up affecting foreign
nationals from 25 countries.

Worse yet, such deviations from constitutional protections and the law
did not come to an end with the Bush administration. Although
President Barack Obama would issue an executive order restoring
adherence to the laws banning torture and end the NSEERS program
(which, the ACLU noted, “did not achieve a single terrorism-related
conviction
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despite “tens of thousands of people having been forced to
register”), there were other key areas in which his administration
did not reverse past policy — anything but, in fact. “Early in
[President Obama’s] administration,” as historian Kathryn
Olmstead notes
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“the new president signaled his intention to continue Bush’s
surveillance policies.” Though “surprised by the extent of the
spying” in the domestic intelligence program, Obama’s team
nonetheless “quickly agreed to continue Bush’s mass surveillance
program.”

In addition, by escalating a global drone program of “targeted
killings,” the Obama administration would forge its own path toward
weakening legal protections in the name of national security. During
the Obama years, on what came to be known as “Terror Tuesdays
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national security officials presented the president with a list of
names, all potential targets to be captured or killed. (It would come
to be known in the media as “the kill list.”) As NPR
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it up, Obama, “wishing to be seen as a restraining influence,”
would weigh in on the final list of names. According to the Bureau
of Investigative Journalism
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“A total of 563 strikes, largely by drones, targeted Pakistan,
Somalia and Yemen during Obama’s two terms, compared to 57 strikes
under Bush.”

Leaving those programs on the table for the next president would be
— and remains — a prescription for disaster.

TRUMP AND THE TACTICS OF THE WAR ON TERROR

Trump’s first presidency combined the strategies of Bush and Obama
when it came to the war on terror. Though it was little noted then, he
launched an unprecedented number of drone strikes, tripling Obama’s
numbers
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2022, including the targeted assassination of a high-ranking Iranian
official, Revolutionary Guard leader Qassim Soleimani
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Political scientist Micah Zenko noted
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despite his claims of being non-interventionist, Trump proved to be
“more interventionist than Obama: in authorizing drone strikes and
special operations raids in non-battlefield settings (namely, in
Pakistan, Yemen, and Somalia).” 

The 45th president’s disregard for legal restraints took other
war-on-terror policies to a new level. Within a week of his
inauguration, President Trump had issued an executive order
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came to be known as “the Muslim Ban,” forbidding citizens from
seven predominantly Muslim countries entry to the United States. And
like his predecessor, he showed little interest in sunsetting the
expansive surveillance authority he had inherited.

In fact, Trump brought the tools and tactics designed for the war on
terror to the “home front,” notably in his approach to dissent. He
attacked Black Lives Matter protesters as enemies, labeling
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“terrorists.” He made discrimination against foreigners a national
policy at the onset of his first presidency, announcing his plans
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of undocumented immigrants and promising to institute policies
that intentionally separated
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children from their families. He even threatened to widen the uses of
Guantánamo: “…[W]e are keeping [Guantanamo] open … and we’re
gonna load it up with some bad dudes, believe me, we’re gonna load
it up.” Wondering who those “bad dudes” would be, NPR noted
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captives in the war on terror were mostly a thing of the past and
reminded listeners of an interview in which Trump had said such
suspects should be tried by military commissions, the fraught trial
system already in place there.

When Joe Biden became president, he curtailed a number of the excesses
of the war on terror from the Trump years, even issuing a
proclamation
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the Muslim ban. When it came to drone strikes, he lessened them
substantially, leaving them
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from their peaks under the Obama and Trump administrations.”  In
addition, he put new limits
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their use going forward. In a striking gesture, Director of National
Intelligence Avril Haines pledged
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“promote transparency” in place of the excessive secrecy that had
underpinned the torture program, surveillance abuses, and the
targeted-killing program. Still, all too much remained ongoing or
fully capable of being revived in the new Trump years.

BRINGING IT ALL BACK HOME

Which brings us to expectations — or fears — of what will happen
in a second Trump presidency. When it comes to the use of force,
detention, discrimination, and the erasure of constitutional
protections, Trump has already promised to bring the broad
counterterrorism authority of earlier in this century to bear on the
home front.

Let’s begin with his promises to institute discriminatory policies
based on race and national origin. As of today, the incoming
administration has pledged to round up, put in camps, and oversee the
mass detention and deportation of undocumented immigrants
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Latin America in particular, potentially combining a detention
nightmare (lacking due process and underpinned by massive
discrimination) with suspicion often based on national origin rather
than specific evidence of criminal behavior — an echo of the war on
terror’s early years.

In place of national security, Trump has promised to substitute, in
the words of the 2024 Republican platform
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the “threat to our very way of life,” a term that expands the
vagueness encapsulated in “terror” and “terrorism” to a new
level. Notably, in the run-up to the 2024 election he had already made
it crystal clear that the path from the war on terror abroad to his
internal policy plans would be important to his administration. When
candidate Trump promised to use the military to counter “the enemy
from within
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a spokesperson clarified the meaning for the press. As
the _Washington Post_ reported
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the time, Trump spokesperson Steven Cheung acknowledged the way the
candidate was linking his political enemies to terrorists. Trump, he
explained, was “equat[ing] the prospect of unspecified efforts by
the left during the elections with the recent arrest of an Afghan
man in Oklahoma, who is accused of plotting an Election Day attack in
the United States in the name of the Islamic State group.” Cheung
then furthered the analogy by adding, “President Trump is 100%
correct — those who seek to undermine democracy by sowing chaos in
our elections are a direct threat, just like the terrorist from
Afghanistan that was arrested for plotting multiple attacks on
Election Day within the United States.”

WHERE ARE WE TODAY?

While the war on terror has receded into the background of our lives,
its premises and tactics remain all too readily available. Its
expansion of presidential powers, coupled with the Supreme Court’s
recent immunity decision
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it comes to more or less anything a president does in office, leaves
the country in a state of imminent peril. Surveillance powers remain
remarkably broad. Drone-strike authorities remain in place, even if,
in the wake of the Biden years, curtailed for now. And the prospect of
indefinite detention as a codified element of American policy remains
possible not only at Guantanamo but for migrants across the United
States. And to top it all off, Congress continues to be unwilling to
restrict a president’s war powers in any significant way, having
repeatedly refused to repeal or replace that original 2001
Authorization for the Use of Military Force in which neither time, nor
geographical limits, nor even precise limits on the definition of the
enemy exist. 

If only, as a nation, we could look beyond the tumultuous context of
the current moment and imagine how to make our way to a safer, more
sustainable future. Sadly, despite the dangers that may lie ahead,
it’s not just partisan politics, or economic disarray, or the
fragile state of the world that has brought us to this point. It’s
our own negligence in accepting the dismantling of the laws and norms
that had guided us prior to 9/11 and refusing ever since to restore
our once-upon-a-time respect for the rule of law and for one another.

_[KAREN J. GREENBERG is the director of the Center on National
Security at Fordham Law. She is also the editor-in-chief of the weekly
Aon CNS Cyber Brief. She is the author of Subtle Tools: The
Dismantling of American Democracy from the War on Terror to Donald
Trump
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co-author with Julian Zelizer of Our Nation at Risk: Election
Integrity as a National Security Issue
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Copyright 2024 Karen J. Greenberg

_Follow TomDispatch on Twitter
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Books, John Feffer’s new dystopian novel, Songlands
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final one in his Splinterlands series), Beverly Gologorsky’s
novel Every Body Has a Story
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Tom Engelhardt’s A Nation Unmade by War
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as well as Alfred McCoy’s In the Shadows of the American Century:
The Rise and Decline of U.S. Global Power
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Dower’s The Violent American Century: War and Terror Since World
War II
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Ann Jones’s They Were Soldiers: How the Wounded Return from
America’s Wars: The Untold Story
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_Copyright 2024 [whomever]. Cross-posted with permission. May not be
reprinted without permission from TomDispatch
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