← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Legal Repercussions of the War on Terror
00:52:49
Twenty years after the 9/11 attacks, Baher Azmy reflects on how our legal and constitutional axes shifted.
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- [00:03]
A
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.
- [00:24]
B
Hi, and welcome back to Amicus. This is Slate's podcast about the law and the courts, the Supreme Court, the rule of law. I'm Dahlia Lithwick and I cover those things for Slate. This weekend marks the 20th anniversary of 9 11. And as the withdrawal from Afghanistan continues to dominate the headlines, so does the conversation about this forever war on terror and its implications. We're going to be talking to one of the lawyers who has been litigating in the extralegal, extra constitutional spaces created by this war on terror. Later on in the show, Slate plus members will get to join Mark Joseph Stern and myself for a conversation about the Supreme Court's latest shadow docket activities and what to make of the Court's decision to take up a case involving religious freedom in the execution chamber. That segment is accessible only to Slate plus members. If you are not a member, you can always sign up@slate.com amicusplus and access bonus content like My conversations with Mark and ad free versions of all of the Slate network of podcasts. And you will never hit a paywall on slate.com that is slate.com amicusplus and as ever, we thank you for supporting the show and the journalism we do. But first, 911 changed the way that we think about absolutely everything. Deemed the most egregious act of international terror, it killed almost three people and change the way America thought about Muslims, about terrorism, about the Middle east, but also how we started to think about domestic surveillance, personal privacy, indefinite detention, policing, and yes, torture. It changed the way we started to think about America's role in policing the world. And the way that we think about these things now changed the way America actually does things. Questions about civil liberty, about nation building, the whole idea of enemy combatants and a war on terror shifted these axes long after we stopped debating questions about waterboarding or the Patriot act that was passed two months after 9 11, or the creation of ice and military tribunals. Those things became the very fabric of the the modern world of American policing, law and detention. My guest today is Baher Azmi. He's the legal director of the center for Constitutional Rights, and he's been challenging the US government repeatedly over the past 20 years, litigating matters from the rights of Gitmo detainees to discriminatory policing practices, government surveillance, the rights of asylum seekers and accountability for victims of torture. Baher is currently on leave from his faculty position at Seton Hall University School of Law, where he taught constitutional law and directed their Civil Rights and Constitutional Litigation clinic. If we are in a forever war, I think of Baher as one of the forever lawyers, the guy who's still there and who will turn the lights off on this war if it ever ends. His article is in a collection entitled Crisis Lawyering that was published this spring by NYU Press. It's called 20 Years of Lawyering in a Lawless Space. Space. Baher, in many, many ways, you are just still litigating the cases America has forgotten and still lawyering the iterations of them that plague us still. Welcome to Amicus.
- [04:09]
A
Thank you, Dalia. It's so good to be in conversation with someone as thoughtful and reflective as you on this. Really, I feel like solemn day. 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 and seepage and expansion of the war on terror paradigm. But I do find myself today, I don't know how you're feeling, just feeling really, really somber about the day, about that horrible day and the feelings of fear and anxiety and just wanted to acknowledge that before we transition into the exploitation of that fear and anxiety into a total security state.
- [05:01]
B
And I think you're exactly right. Except I might say this, I have a layer over the somberness and the worry of real kind of embarrassment and a little bit of almost frustration with myself because everything I just talked about, everything we're gonna talk about, whether it's ICE or milit tribunals or surveillance or torture, those are things I used to write about every week when you were litigating them. And in a lot of ways, I've had the luxury of doing what I suspect a lot of our listeners have done, which is just put it aside. I'm not fighting the torture fight anymore. You are. I'm not fighting the fight about provisions of the Patriot act that I used to rail against. You are. And so I think there's a weird way in which I'm sitting here as a proxy for all the folks who think that that stuff is over and that maybe there's just very, very, very fine grained connections, what you're calling seepage. But the fact is none of that stuff is over. We know it's not over because it's still your bread and butter. And so I think that might be the difference between your somberness and mine is that being in conversation with you always reminds me how much we left on the table and didn't resolve.
- [06:23]
A
Yeah, big psy energy here.
- [06:27]
B
And Bahra, I want to ask you maybe the one personal question that maybe will help me think about how you think about this, which is you're a Muslim guy on 9 11. Maybe talk a little tiny bit about even if you don't mind, sort of how you personally thought about it in the first days and hours after 911 about how this was being framed in a conversation about Muslims and othering. Because I feel as though laced through so much of what you write and say is this kind of feeling that you are straddling those two worlds.
- [07:06]
A
Yeah. As a Egyptian born Muslim raised in the United States and a sort of constitutional progressive constitutional law professor who at the time believed deeply in, in certain legal institutions and the possibility of rights, I have been straddling that. And at the time I was scared like most Muslims were, you know, appalled by the. And horrified 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. You know, I note that my father had never really heard the term jihad outside of the normal conversational personal notion of jihad struggle to, you know, to fast and to be good and to pray. And it was that for that first time he saw that noticed that term being politicized, which shows, you know, personally how alienated we were from that version of politicized Islam.
- [08:14]
B
Can you talk a little bit about ccr? What is it that allowed you all to pivot so quickly after 911 and start filing just what we all thought were audacious lawsuits. As early as February of 2002, just after the attacks, when everybody was saying, maybe we just have to get this done. Whatever that takes.
- [08:40]
A
Yeah, I'll talk about. So I actually wasn't at CCR at the time, but know the story well, led as it was by our inestimable former legal director and president Michael Ratner, who passed away five years ago. And I think, you know, CCR is a political organization as much as a legal organization and understands the intersection between war and creeping authoritarianism. CCR challenged a number of wars before, but in this case knew a challenge to the commencement of war in Afghanistan would be futile. But recognized on the landscape some of the, I guess, predictable responses. So on the one hand, Muslim men were being rounded up all over New York and New Jersey and secreted away in federal detention. And as we later learned after filing suit, brutalized, held in max, sort of solitary confinement, administrative segregation, until they were affirmatively cleared of terrorism charges, flipping the presumption of innocence. And then we're going to come back to this theme, I think a lot, the interplay between external and domestic manifestations. So that's one domestic manifestation. But then you sort of quickly noticed in November 2003, Bush signed military order number one, which was to create military tribunals in Guantanamo. And Michael Ratner knew right away that was very dangerous and mobilized the team, including Joe Margulies at Cornell and Clive Stafford Smith. These are noted death penalty lawyers and knew that they had the challenge, this hopeless as it was. And they filed the first habeas petition, I think, early February 2002, on behalf of Guantanamo detainees, knowing full well that four months after 9, 11, it didn't stand a chance. But I think the attitude of someone like Michael and Joe was one, there has to be some kind of humanitarian intervention, some sort of intervention between humans and state violence. And a principle is, of course, we had no idea who our clients were, of skepticism towards the government's claims that these were all hardened terrorists, the worst of the worst, and therefore can be cut off from any access to law. So those were the early cases in 2002. And then, you know, as the, what I call the Bush administration's human rights crisis developed involving torture, extraordinary rendition, ccr, and then other organizations as well, of course, developed a community of, I think, legal resistance to these policies and a search for accountability, which, as you observe, we're still doing 20 years hence.
- [11:31]
B
And can you just for our listeners who don't know exactly what happened in Rasool, can you just quickly, quickly spell out the litigation as it played out at the Supreme Court?
- [11:43]
A
Yeah. So the habeas petition was filed in 2002 on behalf of a number of British and Australian detainees who happened to learn that their sons were in Guantanamo from their home countries and who reached out to ccr. And also, a case was filed on behalf of Kuwaitis by the law firm Sherman Sterling, who deserve credit for wading in, as, you know, a corporate law firm into the space. And it basically said that Guantanamo, I mean, the government's position was that these were foreign nationals held on foreign soil and so had no access to habeas corpus. And more fundamentally, what the government was trying to do, this is what I call the authoritarian logic of Guantanam, was to create a prison beyond the law so they can conduct endless, brutal interrogations. Guantanamo was never about guilt or innocence or even punishment. It was a place to inflict maximal, in the CIA's words, dependence, stability and dread, forms of learned helplessness. So they become totally dependent on their interrogators. And central to that is to have a closed system that would not permit lawyers to come inside of it. That was their M.O. and they had some precedent on their side. But precedent's always distinguishable, as we were able to do. World War II president. What wasn't distinguishable in 2002 was the political climate that got the cases quickly dismissed. But by 2004, there were. Look, the Bush administration had invaded. Their claims to executive authority seemed arguably arrogant. Their positions were maximalist. And I think something else happened, which is the day a week later, after an argument in a companion case, enemy combatant case, CBS News broke the story with pictures from Abu Ghraib. And they did so on, I think the day Justice Ginsburg asked the Solicitor General, well, what does this claim mean to total maximum executive authority? Does it mean the president can torture? And Clement answered, we don't torture. And so that's precisely, I think the prediction that the original lawyers had that dark things happen in bad things happen in dark places. And so we have to open it up. And the Supreme Court said detainees would have a right to access habeas corpus, at least the habeas corpus statute. And that's when we started identifying additional detainees. And one thing that I think CCR did that was really wise and I wasn't there for him, so I can credit them is Michael and others kind of democratized the representation of detainees. Sort of spread out a collection of hundreds of lawyers representing all 779 in what one commentator called the greatest mass defense effort in history. And mobilized. And this was very important to the effort to destabilize Guantanamo. Mobilized hundreds of lawyers, including mainstream lawyers, Brahmin bankruptcy lawyers from Boston, among them military officers, human rights organizations. And the fight to ultimately get detainees access to a court hearing would take a lot longer. But the idea that we could open up Guantanamo to the outside world, I think at least in theory, spelled the death knell for all of the lies and myth making the administration was using to prop up Guantanamo.
- [15:24]
B
Hey, amicus listeners, wanted to tell you about the upcoming Texas Tribune Festival. It's a multi day celebration at the intersection of politics, public policy and big ideas. Going to be participating in it as I have done before. It's happening virtually between September 20th through the 25th. And you are going to hear from amazing speakers all week like Pete Buttigieg, Nicole, Hannah Jones, the Cat Stro and more. And I'll be there talking to the hosts of the amazing Strict Scrutiny podcast, Leah Littman, Melissa Murray, and Kate Shaw. And we are going to preview the US Supreme Court's upcoming terms. So it will be a really good opportunity to find out what's next both for Texas and way beyond with incredibly, incredibly smart people. Get your tickets@tribfest.org that's tribfest.org we're going to pause now to hear from some of our great sponsors. You were the third civilian lawyer to set foot in Guantanamo, and that was October 2004, I think, after the Supreme Court's decision, decision in Rasool. And you went on to represent Murat Qurnaz, who was being detained there. Do you mind just giving us the sort of Cliff Notes maybe version of, I know, an incredibly long relationship that you had with him, how you advocated for him, how did you even learn about him, how he became, I think, a metaphor, at least for you, about what indefinite detention would mean.
- [17:08]
A
So after the Rasool decision came down in June 2004, CCR and others started identifying additional detainees who had been touched with ccr, who needed lawyers. And one lawyer I'd worked with on a other prisoners rights matter in New Jersey asked me if I wanted to represent this individual. One individual, Moroccanoz. I knew nothing about him. I had a conversation with his mother, and she was understandably anxious. And then, you know, had to get security clearances to go down to Guantanamo. I will share one anecdote as part of the security clearance. Some retired FBI agent with these incredibly meaty hands that I imagine maybe had throttled some East Germans back in the day started asking me about my family members. And I, you know, I started telling him the names of my uncles, you know, Mamduh said, and, you know, Ahmed Mohammed. And I was just rattling off names of all these detainees that I knew were in Guantanamo. And he seemed so puzzled and almost disturbed by that. And there was this, you know, moment of mirroring. So I went down. I knew almost nothing about him. I know I brought a German translator because his mother said he didn't speak any English. And then the guard, after showing me a security image, blurry security image video, I think was designed to make me nervous, as all those grainy images do, said, he doesn't need one. He had learned English. So I entered a room with a handwritten note from his mother that was written in Turkish that I still remember is very simple. You will be visited by an American lawyer you can trust. We have been vacationing in Turkey, your brothers go to school. We saw his ex wife and she is loving you. And I just saw the sort of look on his face transform a little bit like, like a crack in the matrix. And we talked, we got along really well. 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. Later they would open a Starbucks on in Guantanamo. And just a little piece of absurdist American consumerist Trivia. Marat preferred McDonald's to Starbucks, as it turns out. I'm not sure I can get him an advertising gig. But for those of you interested in coffee dynamics, when we got back, when I got back to the United States, it was very hard leaving him that first time. We finally learned the reasons that the government offered for his detention. And the primary one, they had these combatant Status Review tribunals. These were administrative show trials that they were going to say satisfied the mandate of Rasool and gave them adequate process. But these were out of law and into this domain of literature. Just preposterous. You know, you were presumed an enemy combatant and without a lawyer and having been in Guantanamo, you had to disprove your enemy combatant status when in the majority of cases the enemy combatant status was based on classified evidence. In his case they said his friend from Germany was a suicide bomber and committed a suicide bombing. Although they misspelled it. We already figured, we ultimately figured out in Istanbul, in a synagogue. Marat said, oh, he did that. I do not need a friend like that. I did not know. So putting aside the astonishing legal proposition that someone can spend the rest of their life in detention because of the unknown and unknowable look, this happened in 2003 when Marat was incommunicado in Guantanamo. Put that astonishing proposition aside. It was just made up, you know, within 24 hours we were on the phone with Bilgin and had an affidavit for him saying, hi, I'm alive, but just totally made up. And at the same time he. No one shared the classified file which I ultimately made public that showed the US had been convinced that he was innocent and the Germans as well. Nevertheless, he spent five more years there and we became very close as a lot of lawyers had with their clients. I was his only connection to the outside world to learn about his family, to learn about politics to the extent that we could talk about it. He had a rapid ripping sense of humor that was so delightful, but also this very rooted faith in Islam that got him through This, I think one advantage, I think some of these prisoners had is praying five times a day helps break up the monotony to some extent, although also in this classified file and shows you the authoritarian thinking in Guantanamo. I recently looked back on it while writing a brief. Despite all the exculpatory evidence, one lieutenant deemed him in his file dangerous because, A, he asked about the height of a basketball hoop, presumably as a plot to escape Guantanamo, and second, he prayed during the national anthem as if we expect someone we hold as an enemy should abide by, you know, our calling to national greatness. He was released in 2006. I was there for the reunion with him and his family, which was remarkable. And I was there for his wedding. And it's been a while since I've been in touch, but he's thriving.
- [22:52]
B
That's a tragic but ultimately kind of happy story about someone who's eventually released and reunited with his family. But I feel like we can't really leave this conversation without talking, at least for a moment about Abu Zubaydah, who you defended, no longer defend, but defended for over a decade. He's the subject of torture, unlawful detention, unlawful questioning, and he's still there, the number 40 guy at Gitmo. What does that leave us to think about the project of the 40 people still left behind at Guantanamo?
- [23:37]
A
There were other faces of indefinite detention. Previously, I would say it was Adnan Lateef who had been cleared for release. And after pleas to the Supreme Court to please take his case and undo the damage that the D.C. circuit had been doing to the subsequent Guantanamo case, that the Boumedienne case, when the D.C. circuit, which was far to the right of the Supreme Court, at the same time was just destroying habeas, begged the Supreme Court to take his case. Lateef's case, he's been cleared for release. Supreme Court passed, and two months later, Adnan Lateef took his life. He used to be the face of indefinite detention. Now, I think it is someone like Abu Zubaydah who was at the intersection of so many pieces of the war on terror. Apprehended in Pakistan, flown to Thailand, where there was initial interrogation by the FBI by Ali Soufan, who suggested he was making some progress and got some major leads from Abu Zubaydah. Nevertheless, civilians in D.C. thought we needed to do more. And then he became one of the first victims of the systematic program of torture and dehumanization and brutalization through waterboarding, all sorts of physical violence, and then sent to European black sites for more torture, interrogation. And after 2006 decision in Hamdan that basically said the Geneva Conventions prohibit this kind of brutalization brought to Guantanamo. And he is the iconic face of indefinite detention now because there are some people who are cleared for release who in theory the government should be working on returning. There are some people who are slated for military commissions. So there will be tried, although we can talk about why that probably won't happen. And then some who Obama said were, there's not enough evidence to try, but too dangerous to release. In our opinion, that's 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, based on, you know, some expert prognostication about returning to the fight. But nevertheless, he's in that category. But ultimately, I think this is about keeping him secret. He has a lot of stories to tell, some of which have gotten out through his drawings. But it is hard to know what the government would ultimately do with Abu Zubaydah after what they have done to Abu Zubaydah.
- [26:18]
B
And this is one of your through line places, right. Where, you know, in addition to normalizing and becoming complacent, I think these things grow and expand and take different forms. And I'm guessing you would say so much of the conversation now that we're hearing, even in the last few weeks around leaving Afghanistan has that same through line of, you know, oh, well, mistakes were made, human life was lost, we learned. And yet again, no sense of real stock taking, no sense of real accountability. This must feel awfully resonant for you after what you just talked about in terms of Gitmo.
- [27:06]
A
Yeah, I mean, that's a really good, good point. The sort of oops, we did our best to describe calamitous war making, total distortions of American institutions that really. Yeah. Have become normalized. I think only through this bizarre filter of American exceptionalism that makes us ignore the genocide of Native Americans and minimize the violence of slavery, that we just have this immense capacity to put our outrages behind us. And I think there are consequences. I mean, I don't want to try and oversell this, but I do think there's a through line between these forms of soft authoritarianism and the hard authoritarianism.
- [28:02]
B
Trump.
- [28:03]
A
I mean, when we tortured people, I mean, 30 years ago we would have said that America wouldn't do that. We systematically did it. We rationalized it through high level legal counsel, albeit fraudulent lawyering, and no one was held accountable. The sort of. 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.
- [28:39]
B
And maybe I don't want to overstate what you're saying, but it does feel a little bit as though part of the trick here is if it comes in a different bottle, wearing a different cloak in a different iteration, then it's easy not just to say, well, that thing, you know, we don't torture people anymore, seeing all of what comes after it, the iterations that follow, but also to sort of tell an American exceptionalist story about how we're learning and getting better.
- [29:11]
A
Yes. Right. We won't do it again. But of course, right, as you're saying, it'll come up in a different garb. I mean, so 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. I tried to explain that to a German friend of mine who I knew, but I don't understand. This is Gestapo. So, yeah, and I think, you know, there's. I mean, another through line, it seems to me, is we sort of posit a vision of freedom through these past wars. And certainly Trump embraces this. It's also like a Jacksonian, Andrew Jacksonian vision of freedom where ours is increased at the repression of others. So there's a little bit of Adam Serwer's point that the cruelty is the point. Sort of maximized cruelty. Shock and awe. What Munir Ahmed calls the iconography of terror, showing, you know, subdued and cloaked Guantanamo detainees tied together. We're winning, so you are free. And by the way, they hate us for our freedom, which I still can't quite figure out how to unwrap from some massive flag of narcissism. And, yeah, and I think Trump has sort of taken that mantle and said, you know, we deserve to inflict cruelty on other people, and we will feel better about ourselves, some of us will, when we do that. But that started before him.
- [31:05]
B
Now, let's get back to our conversation with Bahr Azmi, the legal director of the center for Constitutional Rights. I've seen you use the word narrative scaffolding to describe, in this case, it's in reference to this legal category, enemy combatant. But it's kind of about the stories we tell. And I think what you've just done is a couple of versions of that, you know, stories we tell about what is required to be done to others to make ourselves free. Right. What we do when something is so exigent and so dangerous that what we have to do is be cruel. And that should be something that a patriot has no problem with. And I wonder if another place where we just had a lot of narrative scaffolding created by the bush Interventions after 9, 11, just have to do with claims about presidential power and presidential authority over war making, and a very, very, again, kind of cartoonish story we tell about the president cowboy who saves us all. And you don't want to know what's on that wall, but I'm gonna take care of it. And that also blossoms again, wearing different cloaks and culminating in Trump, you know, wanting to build a wall and separate families. But that's another place that we just fell asleep at the switch and said, you know, we want our president to be that guy.
- [32:39]
A
Right? And there's this old, you know, the resistance to the abstract civil libertarian objection of presidential authority, which, you know, which is, it may look okay now, but it's going to get bigger and someone else is going to come and use it in dangerous ways that everyone will agree is dangerous. And that's certainly what happened. I mean, I'm thinking about so much of the Trump illegality and assertion of executive power. I mean, it was really, we were kind of accustomed to it by the Bush administration, who tried to bypass Congress around surveillance and around detention. And there is the vesting in one person, you know, kind of total authority in Congress goes along with it, and. We're all for the worst. And, you know, I think the other narrative part of the narrative scaffolding is this notion of that the Bush administration created this everywhere existential Muslim menace that's not defined by country. It is global, it is internal, it is everywhere. This undifferentiated thing you have to be afraid of. And where the whole Muslim world is a battlefield, I think contributes to a demand that we fortify the homeland, not just against Muslims, but the next undifferentiated enemy. And it wasn't hard for Trump to pivot from Muslim terrorists to Mexican criminal and back and forth. It's just. It's fluid for him. But that scaffolding was erected before he got into office and, you know, I guess incubated by Obama at a lower temperature.
- [34:40]
B
And I want to say you've been as brutal a critic of Obama on some of these issues as you have been toward Bush or Trump. The one other piece of this that I just want you to riff on for a minute because I think, again, it formed the spine of so much of my writing and thinking at the Time and now, I think as with everything else we're talking about, it's really been cooked into the soup. And that is just this again in interstitial space. That isn't law. It isn't warfare, international relations, it's not crime. It's this other thing that, that got constructed. We can fight about whether 9, 11amplifies and accelerates it or creates it. But that thing that you're describing, that lawless space that lives in the midst of those things, we're not talking about criminal law, we're not talking about international military law, we're not talking about the mafia. We're talking about a thing that is nothing and everything that happens too. Right?
- [35:52]
A
Wow, I love that. Yeah, that's exactly right. 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. You know, I've been asked a couple of times about, so what does the end of the war in Afghanistan mean? Does that mean that detentions in Guantanamo should end? In theory, but it reminded me of your point that this is all malleable gush, that's not accountable to actual legal principles. I mean, the government will argue, sure, the war is over and sure we argued in Hamdi that you can detain people to prevent them from going back to the battlefield, but the battlefield is now global and we can detain not only people who are from Afghanistan, but who might be affiliated with some global Al Qaeda network and Al Qaeda might re establish itself. It's just totally meaningless and made up their suggestion about where their power starts and where it ends. And I guess their conception of power really doesn't particularly end. And just, you know, it is bananas to hear the government say, you know, a 54 Yemeni person with diabetes and bad knees needs to be held another five years. Otherwise he might go back to the fight. What fight? It's been 20 years. It's just, yeah, it's hard when some of the rules are made up.
- [37:48]
B
And I guess part of what, and I know you don't purport to be global affairs specialist, but it does also, I think figure somewhere in here that some of the radicalization that happens post Afghanistan, post Iraq, post ISIS is in reaction to the things that were done and the lack of accountability. So whether or not your 54 year old Yemeni is going back to the fight, it is certainly the case that we live in a world that has been radicalized by not just some of the things that happened in the wake of 9 11, but the reaction to the lawlessness from a country that you open with this, you always believe to be a beacon of rule of law and democracy.
- [38:44]
A
Yeah. I wonder if Americans have any sense of how we're perceived abroad. I mean, a paradox that Murat always raised. And it strikes me as kind of amazing. 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. I mean, this is the most powerful military on the order of 100 in human history. And we're worried about that and not the constant din of drone strikes that are terrorizing people in Pakistan and Yemen.
- [39:22]
B
That's.
- [39:24]
A
It's just kind of remarkable. The level of fear at that granular level that seems so disconnected to reality, so betraying institutions because some infinitesimal risk is just so distorted.
- [39:42]
B
And Bahar, you started to go down this road and I think didn't get to quite say what you wanted to say. But I think you're also saying that this has an effect on Muslim Americans. This has an effect on how I'm remembering President Bush going to a mosque in D.C. calling Americans not to single out Muslim Americans. And then we just slide almost inexorably, as you just pointed out, into the Donald J. Trump is calling for a total and complete shutdown of a Muslim Muslims entering the United States. Those are also connected in your view, Right?
- [40:27]
A
Yeah, even Bush's term. So he did the right thing, which was sort of visit patriotic Muslims showing their patriotism and calling us not to discriminate. That's fine. But he also referenced this global Islamic network as evildoers and did what he did, not just what he said. And so Trump takes that soft authoritarianism and says, you said you were gonna get rid of this threat, but you obviously didn't do enough. Leave it to me. So having created this enemy, this is Muslim enemy, Leave it to me to finish the job. And that's what he tried on whatever day seven of his presidency, to exclude all Muslims from America. And then I guess his attention moved on. But yes, it definitely, I think, created a pathway for that. And there's some other geopolitics, of course, as well. You can't deny the impact of the intervening, the perceived threat or insecurity of having intervening black president with Hussein as a middle name to stoke paranoia of public life. So it's not all attributable to Bush. It's, you know, sort of deeply melded with American culture and xenophobia and racism and all those things that are deeply melded in American culture.
- [42:05]
B
So this gives me a nice place to pivot to another thing that's deeply melded into American culture. Having you've just done some good advertising, advertising for McDonald's. But I do think that the private sector runs with so many parts of this as well. And this must inflect the way you think about domestic policing now. You know, the militarization of American police forces, you know, $1.6 billion of Pentagon money, of Pentagon money goes to arm local police departments with military equipment. And then the private sector, as I flicked at up top, getting involved in the use of data surveillance and analytics just to keep consumer prerogatives at the top. So I want to just give you a minute to reflect on. You've talked a lot about the sort of exceptionalism and patriotism and the ways we think about ourselves as separate from what came before. But boy, does the private sector ever lurch into the space here too.
- [43:14]
A
Yeah, the influence of sort of private military contractors who, you know, I mean, so much of the Afghan war was outsourced to them. We have lawsuits against some involved in torture in Abu Ghraib and the sort of constant production through billion dollar markets of more and more surveillance capacities as we're militarizing the border. Arming police, as you say, is really scary. And by the way, these contracts I know from the cases are trying to get the kind of, in an Erik Princeian vision, trying to get kind of immunity from kind of obtain the same immunity that the sovereign has so that they will be free to fight wars in the future without accountability. But the police militarization point I think is also incredibly important. I mean, just look at the SWAT teams that descend in every municipal police force post Floyd, or remember in Ferguson. And so certainly, and I'm not a total expert on this, but certainly pre 9, 11 major metropolitan areas had SWAT teams because of the war on drugs. We shouldn't forget that as we're. But I don't think it was in that level in Peoria and Ferguson and saw this terrorist narrative and the surplus military equipment was given to them. So that like that summer Portland, you know, was that Portland or Fallujah, you know, and I think there are real codependencies between external fighting and counterinsurgency and police mechanisms domestically. And given the lionization of police forces, I mean, I think the police unions in New York want to be treated like the military in terms of reverence for them, in terms of democratic unaccountability, and in terms of political and financial support. And I find that terrifying.
- [45:23]
B
I want to give you a minute to talk about accountability, because right now we're having a fight. Although I think the fight has been litigated and lost about the fact that no one in the Trump administration has been held to account for any of some of the most horrible practices, including family separation, that there was this decision taken to draw a line and move on and not divide the country. And I'm kind of smiling as I ask you this, because, of course, the example we all use is your example when we talk about this and we say, well, there was no accountability for the black sites and no accountability for torture and no accountability for mass surveillance. What is the answer to the question, oh, but what you're doing is politicizing this. You're trying to somehow benefit from still fighting this war 20 years after and not. Not letting go and not just saying, ugh, Guantanamo. You're silly. There's only 39 people there. I feel like you, more than anyone, has a right to explain to us what the consequences of a world of no accountability really looks like in the long term.
- [46:49]
A
Yeah, I think it looks. It looks a lot like how we've already described it. Absence of accountability for Bush administration officials makes it impossible to imagine a proceeding that would hold Trump officials accountable for lawlessness. And, you know, I actually want to maybe I can sort of open the lens a little bit and try and understand what about the absence of accountability, except for, let's say, street crime or drugs is so endemic in America. You know, we talked about Rasool, and the way that we litigated Rasool in 2004 was not to pit terrorist suspects against the. The rights of terrorist suspects against national security. It was a story about. Kind of exceptionalism, that Guantanamo was an illegitimate experiment. America had lost its way. It was exceptional. And, you know, 20 years hence, you have to ask ourselves, and is it really exceptional, or is it at the sort of the core of American styles of jurisprudence and accountability? Think about the massive carceral state, the laws around the death penalty, and how impenetrable it is, qualified immunity and all sorts of immunity doctrines. It's a sort of lurching towards authoritarianism and power in authority that is scary in the abstract, but is also, I think, particularly worrying. And that always manifests itself in brutalizing and targeting and controlling minority communities, black and brown and Muslim communities, because there is still exceptionalism bound with that lack of accountability and people in power who are typically, you know, white men don't want to be held accountable.
- [48:55]
B
That's such an incredibly granular pulling at a whole bunch of threads in this conversation that I hadn't even quite thought about. And I'm really thankful for the for the sober answer. I do feel like I started by saying, you know, you've been pretty tough on the Obama administration. I think you have a lot of asks of the Biden administration. I'm thinking now about Obama in his presidency when he was being asked about hunger strikers at Guantanamo who are being fed by tubes. And he articulated again this idea of this is not who we are. This is not who we are. We keep hearing and we heard it again after the January6 the text this is not who we are. And again, I feel like there are very few people in a better position on this 20th anniversary of 911 because you're still working, still working. The original sins of it through radical lawyering. Who are we?
- [50:05]
A
This is who we are. We are, at the same time, a country that elects the first black president, an incredibly impressive human being with soaring vision for what is possible. We are that. And we are also a country that brutalizes prisoners and detainees. And maybe more to the point, we are a country that can hold both ideas at the same time, certainly preferencing the noble one while ignoring the scary parts.
- [50:41]
B
Bahar Azmi is the legal director of the center for Constitutional Rights. He's been challenging the American government repeatedly over the last two decades. Right now he's on leave from his faculty position at Seton Hall University School of Law, where he taught constitutional law, directed their Civil Rights and Constitutional Litigation clinic. The article I was drawing from today is in a book entitled Crisis Lawyering, published this last year by NYU Press, and his chapter Guantanamo 20 Years of Lawyering in a Lawless Space. I wish we had more time. I feel like there are so many other lawsuits that you are involved in that really speak to this moment, but maybe we could just leave it at saying that. It seems to me that 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. Is that fair?
- [51:51]
A
That's beautifully said, Thalia.
- [51:53]
B
Thank you so, so much for being with us.
- [51:55]
A
My pleasure. It was a really great conversation. I enjoyed it. Thank you.
- [52:03]
B
And that is a wrap for this episode of Amicus thank you so much for listening. Thank you you so much for your letters and your questions. You can always keep in touch with us@amicuslate.com or you can find us@facebook.com Amicus Podcast thank you, thank you for your letters and suggestion. They really do help us feel like we're not just shouting into the void. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June 20Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two short weeks.