Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: The Legal Repercussions of the War on Terror
Air Date: September 11, 2021
Guest: Baher Azmy, Legal Director, Center for Constitutional Rights

Episode Overview

This episode marks the 20th anniversary of 9/11, focusing on the enduring legal, cultural, and political ramifications of the War on Terror for America’s legal system. Host Dahlia Lithwick interviews Baher Azmy—longtime civil rights litigator involved in challenging US government actions at Guantanamo Bay and beyond—about the normalization of extraordinary governmental powers, lack of accountability, indefinite detention, and the seepage of wartime logic into domestic policing and policy.

Key Discussion Points & Insights

1. The Legacy of 9/11: Unresolved Legal and Moral Questions

• Normalization of Illegal Practices

  • The US has “systematically” conducted torture, rationalized through “fraudulent lawyering,” without accountability.

    “We tortured people. I mean, 30 years ago we would have said that America wouldn't do that, but we systematically did it. We rationalized it through high level, you know, legal counsel, albeit fraudulent lawyering. And no one was held accountable.”
    — Baher Azmy [00:02, 28:02]

• Seepage Into the Fabric of Law

  • Practices like indefinite detention, secret tribunals, enhanced surveillance, and widespread suspicion of Muslims have outlasted their immediate context and shape contemporary law enforcement and attitudes about rights.

    “Those things became the very fabric of the modern world of American policing, law and detention.”
    — Dahlia Lithwick [03:30]

• Enduring Sense of “Foreverness”

  • Azmy emphasizes the “foreverness and seepage and expansion of the war on terror paradigm” and the somber mood on 9/11 anniversaries.

    “I think we're going to talk about some dark and depressing things about the government response, the evisceration of rights, and the sort of foreverness... of the war on terror paradigm.”
    — Baher Azmy [04:09]

2. Personal Perspective: Straddling Two Worlds

• Azmy reflects on experiencing post-9/11 America as an Egyptian-born Muslim and a constitutional law professor, sharing feelings of alienation, fear, and watching religious identity weaponized.

  “As a Egyptian born Muslim raised in the United States and a sort of constitutional progressive constitutional law professor... I was scared like most Muslims were, you know, appalled by the... attacks, deeply alienated by the idea that this could be done in the name of a religion that I associate with deep kindness and family and tradition.”
  — Baher Azmy [07:06]

3. Early Legal Resistance: The Fight for Habeas Corpus

• CCR’s Rapid Mobilization Post-9/11

  • The Center for Constitutional Rights (CCR), led by Michael Ratner, filed the first audacious lawsuits challenging detention and military tribunals at Guantanamo.

    “One of the first habeas petitions... on behalf of Guantanamo detainees, knowing full well that four months after 9/11, it didn't stand a chance.”
    — Baher Azmy [09:46]

• The Rasul Case and the Opening of Guantánamo

  • The Supreme Court’s Rasul decision (2004) recognized detainees’ right to habeas corpus, representing a key intervention and a challenge to executive authority.

    “Guantanamo was never about guilt or innocence. It was a place to inflict maximal... dependence, stability and dread... Central to that is to have a closed system that would not permit lawyers to come inside of it.”
    — Baher Azmy [12:24]

4. Representing Detainees: Stories of Injustice and Absurdity

• Murat Kurnaz: A Case Study in Indefinite Detention

  • Azmy recounts his work representing Murat Kurnaz, wrongly held at Guantanamo for years despite clear evidence of innocence.

    “The only rights detainees seemed to have was a right for their lawyers to bring them food. So he had coffee from McDonald's for the first time. ... The reasons [for his detention] were just made up.”
    — Baher Azmy [17:07]

  • Example of Kafkaesque bureaucracy: classified evidence, show trials, “enemy combatant” status based on fabricated accusations.

• Abu Zubaydah: The Face of Torture and Permanent Detention

  • Discussion of ongoing indefinite detention for those never tried in court, highlighting the government’s desire to keep certain prisoners hidden due to what they know about CIA black sites and torture.

    “He is the iconic face of indefinite detention now because... in a place that believes in due process, that should be a null set, should only be prosecuted based on what you've done, not on predictions of how black your soul is.”
    — Baher Azmy [25:03]

5. Impunity and the Erosion of Accountability

• Consequences of Not Prosecuting Torture or Abuses

  • “The outrages go totally unpunished or unreconciled. And so they become normal, and we just get inoculated to one absurdity and one governmental abuse after another.”
    — Baher Azmy [28:02]

• The American Myth of Learning From Mistakes

  • The “American exceptionalist story” sees each abuse as past, unique, and resolved—but the patterns repeat, morphing into new forms (e.g., family separation at the border as a new iteration of state-inflicted cruelty).

    “Maybe we stop formally torturing. But at the southern border, we separated parents from babies. An alternative form of torture. The design to maximize cruelty.”
    — Baher Azmy [29:10]

6. Narrative Scaffolding: Stories That Enable Abuse

• Narratives of Heroic Presidential Power and Perpetual Threat

  • Discussion of the stories told to justify extraordinary executive authority—first for the “Muslim menace,” later for other scapegoats—and how this enabled later abuses (Bush → Obama → Trump).

    “The Bush administration created this everywhere existential Muslim menace... It wasn't hard for Trump to pivot from Muslim terrorists to Mexican criminal and back and forth.”
    — Baher Azmy [32:38]

• “Lawless Space”

  • The indefinite state between war and law, where rules are malleable and power becomes unaccountable.

    “We're sort of trying to get our hands around this thing that is impossible to grasp because it's huge, it's slippery, it morphs, and so it's everything and as you say, nothing at the same time because it's undefinable.”
    — Baher Azmy [35:52]

7. International Perception & Radicalization

• Americans often lack awareness of how US actions—wars, drone strikes, detentions—radicalize populations abroad and shape global perceptions.

  “The Obama administration, for example, and Bush too would say, we can't release this person to Yemen because there's an Al Qaeda crisis there. ... and not the constant din of drone strikes that are terrorizing people in Pakistan and Yemen.”
  — Baher Azmy [38:43]

8. Domestic Seepage: Militarized Policing and Surveillance

• The war-on-terror paradigm fuels the militarization of domestic police, private contractors’ involvement in military and surveillance operations, and blurred lines between national security and local law enforcement.

  “SWAT teams that descend in every municipal police force post Floyd, or remember in Ferguson...[with] this terrorist narrative and the surplus military equipment was given to them.”
  — Baher Azmy [43:13]

9. The Problem of (No) Accountability

• No real consequences for officials responsible for torture, illegal surveillance, or family separation.

  “Absence of accountability for Bush administration officials makes it impossible to imagine a proceeding that would hold Trump officials accountable for lawlessness.”
  — Baher Azmy [46:49]

• The US preference for impunity, except regarding street crime or drugs, is deeply entwined with racialized policing and carceral logic.

  “Kind of exceptionalism, that Guantanamo was an illegitimate experiment. America had lost its way. It was exceptional. And, you know, 20 years hence... is it really exceptional, or is it at the... core of American styles of jurisprudence and accountability?”
  — Baher Azmy [46:49]

10. Who Are We, Really?

• The US can elect “the first black president [with a] soaring vision” and also brutalize prisoners; it prefers uplifting stories and avoids harsh realities.

  “We are a country that can hold both ideas at the same time, certainly preferencing the noble one while ignoring the scary parts.”
  — Baher Azmy [50:05]

• Looking back at 9/11, Lithwick urges listeners to ask how “what we’re not looking at” shapes who Americans have become.

  "...for those of us who are spending today, looking back at 9/11, it really is a valuable, valuable exercise to think not just about where was I then, what was on TV then, but to think about what have we become as a consequence of what we're not looking at."
  — Dahlia Lithwick [51:40]

Notable Quotes & Memorable Moments

• On Torture and Impunity

  "We tortured people...and no one was held accountable."
  — Baher Azmy [00:02, 28:02]

• On the Lawless Space Created by the War on Terror

  "We're sort of trying to get our hands around this thing that is impossible to grasp because...it's everything and...nothing at the same time because it's undefinable."
  — Baher Azmy [35:52]

• On Domestic Seepage of War Paradigms

  “Was that Portland or Fallujah?...there are real codependencies between external fighting and counterinsurgency and police mechanisms domestically.”
  — Baher Azmy [43:13]

• On American Identity

  "We are a country that can hold both ideas at the same time, certainly preferencing the noble one while ignoring the scary parts."
  — Baher Azmy [50:05]

Timestamps for Key Segments

• Early Legal Response & Guantanamo Litigation — [08:13]–[15:23]
• Personal Story: Representing Murat Kurnaz — [17:07]–[22:52]
• Abu Zubaydah & Indefinite Detention — [22:52]–[26:18]
• On Torture, Lack of Accountability, & American Exceptionalism — [28:02]–[31:05]
• Narrative Scaffolding & Presidential Power — [31:05]–[34:39]
• Lawless Space, Legal Malleability, & Seepage Into Domestic Policing — [35:52]–[43:13]
• Private Sector & Militarization of Police — [42:04]–[45:23]
• Accountability & Lasting Impact — [45:23]–[50:05]
• Reflections on American Identity Post-9/11 — [50:05]–[51:51]

Summary Takeaway

The episode grapples with the ways post-9/11 policies and legal innovations continue to erode civil liberties, normalize impunity, and export patterns of violence and surveillance both at home and abroad. Through probing questions and Azmy’s deeply informed perspective, listeners are challenged to confront the enduring legacy of 9/11—not as history, but as the persistent legal, moral, and political crisis that shapes what America is and what it might become.