This speech Initially was presented on August 25, 2021 at a gathering of peace groups in Chicago, IL by People’s Law Office Attorney Michael Deutsch
Next month there will be remembrances and memorials across this country about the people who lost their lives here on 9/11. It would appropriate and necessary that we also reflect on the illegal invasion and occupation of Afghanistan and Iraq and the unspeakable deaths and destruction caused by this Global War on Terror [GWOT] – over 1 million Iraqis; 300,000 Afghanis;80,000 Pakistanis; and countless more in Yemen, Somalia, Libya, Syria, and Niger dead, and more we don’t even know about.
Today, I want to focus on the other aspect of this forever war. We can see very clearly now over the last two decades, that it was not terrorism, but U.S. counterterrorism/insurgency, that has upended fundamental U.S. constitutional rights and international human rights law, and in many ways has created the situation which threatens the fabric of our so-called fragiledemocracy. In the 60’s the anti-war movement called for bringing the war home. Now in some perverse way we have brought the GWOT home.
First let me be clear, if anyone has any doubt, the policies and practices of counterterrorism were and are bipartisan, supported and expanded by presidents and members of both political parties. In fact, in 1996 even before 9/11, Clinton — supported by Congress (91 to 8) — passed the “Anti-Terrorism and Effective Death Penalty Act,” described as an “act to deter terrorism.” It remains today (with higher penalties) one of the main legal structures to prosecute and imprison Muslims, Palestinians opposing Occupation, and others resisting U.S supported oppressive governments. Under this law the Secretary of State is empowered to make a list of Foreign Terrorist Organizations (FTO) with a limited right to challenge such designation. It also criminalizes any act that is considered to provide “material support” for such a designated group (there are several hundred on such a list) which includes First Amendment activity (charitable giving, providing human rights training or assisting groups making claims of human rights violations) if considered “under the direction of or in conjunction with an FTO,” with penalties of up to 20 years in jail. The designated FTOs consisted of only groups that oppose U.S. occupation or policies, or authoritarian allies of the U.S, ignoring those that were clearly involved in terrorism like the Israeli Defense Force[IDF], the Mujahedin-e-Khalq [MEK] or even Israeli settler groups.
Under this law, the government need not show that such support was for acts of violence or otherwise illegal acts. For one example, the leaders of the Holy Land Foundation, which was the largest U.S. based Muslim charity supporting humanitarian needs throughout the Middle East, including Palestinians living on Occupation, were sentenced to up to 65 years in prison after two trials in Texas. Hundreds of others, mostly Muslims living in the U.S., have been imprisoned under this statute.
Days after 9/11, Congress passed the “Authorization for the Use of Military Force” [AUMF] against those involved in 9/11, without naming a specific enemy or geographical or temporal limitations. This authorization continues in effect today. This has been interpreted by the government to extend not only those involved in 9/11, but what it characterized as “associated forces.” In 2002 the Congress passed another authorization prior to its invasion of Iraq. This overbroad interpretation gives the government a blank check to use military force Libya, Somalia, Niger, Iran, or anywhere else who were clearly not “associated forces,” thus emasculating Congress’ power to declare war and allowing for endless wars. It is believed that since 9/11 U.S. military force has been used in 19 different countries.
After the military authorization, Bush moved swiftly to carry out the military invasion of Afghanistan, ostensibly to capture Osama bin Laden and Al Qaeda, who escaped to Pakistan. Hundreds of Afghanis were captured and sent to secret U.S. black sites, or were sent to other countries to be horrifically tortured, under what was denominated as “extraordinary rendition.”
In addition, illegal secret surveillance was conducted, seizing the contents of millions of phone calls, and other communications from abroad, in violation of Constitution and without out authorization of the FISA law created in 1978 which required approval of all foreign intelligence by a special court with secret proceedings.
In order to avoid federal and military law prohibiting torture, to say nothing of the Constitution, Bush had his lackeys in the OLC (John Yoo, now a law professor and Jay Bybee, a judge on the CA 9th Circuit) to define torture as “causing organ failure, death or irreversible psychological damage.” Those captured and tortured (many totally innocent) who were perceived as high value detainees were then sent to Guantanamo prison, an occupied Cuban territory, and detain indefinitely without charges. As part of the WOT hundreds more were captured after the invasion of Iraq, under the lie that Sadaam was involved with 9/11, and had weapons of mass destruction, were imprisoned at Abu Ghraib in Iraq where they were humiliated by soldier guards forced to be nude in front of female soldiers and physically and repeatedly abused and forced feed to stop the hunger protests
Within two months of 9/11, the 300 page U.S Patriot Act (was it already drafted before 9/11?) was passed, legalizing broad unconstitutional powers of surveillance, that up till then had been done secretly in a program not even known to many members of NSA, called Stellarwind. The Act created powers to secretly spy on U.S. citizens and collect billions of metadata phone records (the numbers, dates, and names of the senders and receivers of every phone call made in the U.S. and abroad. Shockingly, Director Michael Hayden, was quoting as saying, “We kill people based on metadata.”
The Act also authorized National Security Letters, whichempower federal agents to obtain private telecommunications and customer records held by banks and other financial institutions, and business records of Americans, without judicial authority, and which gag victims of such searches, prohitibing them from speaking publicly about it. In challenging any judicial oversight to surveillance, William Barr, then general counsel for Verizon, stated that the FISA court was too restrictive and that judges were not competent to make decisions about surveillance.
The Act also permitted physical or electronic searches called “sneak and peek,” which allowed for agents with a warrant to enter a home in the absence of the resident or seize telecommunications and delay in notifying the target of the searches. In addition, under Section 702 of Patriot Act, all data collected from social media platforms (Google, Facebook, Microsoft) (Surveillance Capitalism) were authorized to be automatically turned over to the NSA.
In addition, the government was allowed to invoke the States Secrets Privilege to prevent any civil suits that challenged torture or surveillance. By 2012 the FISA Court was bullied into holding that collection of metadata about phone calls was legal under FISA, but the secret taping of the contents of phone calls was still going on.
At the same time the shockingly narrow definitions to condone torture and secret surveillance were being carried out, there was growing anti-Muslim campaign in the U.S. The Islamophobes were fanning the flames of fear and hatred. The FBI and Security State focused on Muslims living in America. The FBI organized 15,000 informants dedicated to infiltrating the Islamic community centers, Mosques and schools, looking to spy on and entrap Muslims, with phony or exaggerated terrorism charges.
Tens of Muslims were detained without charges under the Material Witness Statute, falsely claiming that if they were not detained, these people were likely to flee. Hundreds were charged and convicted of providing “material support” or other criminal charges, and then offered reduced charges in exchange for information or for acting as informants.
Anti-Sharia laws were proposed in 30 states. Enflamed by fear of Muslim Terrorism, concerted efforts on social media platforms and by right wing media that Islam = terrorismwere beginning to grow roots in the U.S., which as we know had a long history of racism and fear of the other. Nativist anger was on the rise.
But wait — a new president was elected — a constitutional law professor who called the Iraq war a stupid war and talked about hope and change; the “hope” that the counterterrorism and the attack on our civil liberties at home would be ended. But alas that was not to be.
It turned out, Barack Obama wanted a sustainable GWOT, but without fear and Muslim hatred. He tried to moderate the war on terror under the naive fallacy that destruction abroad would not damage U.S. democracy.
The third day in office he initiated drone attacks in Afghanistan that killed nine civilians. And every third day throughout his tenure he approved or had subordinates approve murderous drone attacks. He opted for a “cleaner way”to kill the believed terrorists by air, and over his years in office he was responsiblefor over 1,000 strikes, killing 4,000 including at least 500 civilians. Since it was all done in secrecy, we really will never know the real totals. Drones attacked mosques, funerals and weddings, signature strikes which did not target a specific target but focused on general targets. Murder without due process, even including U.S. citizens. Drone use was the centerpiece of his counterterrorism strategy. The head of the drone strikes was the former head of the CIA counterterrorism center.
In 2012 Obama signed into law the National Defense Authorization Act, which specifically allowed the apprehension and indefinite detention without trial of anyone, including U.S. citizens, suspected of threatening the security of the homeland. He promised to close Guantanamo but failed to do so (he had the crazy idea to put them in a prison in Illinois, rather than give them immediate Article III trials or release them.). But he backed off of that promise when he received some opposition from Congress, and Guantanamo was never closed.
He sanctioned military trials and secret surveillance. Despite all his efforts to placate the security state, and the anti-Muslim nativists, many attacked him calling as secret Muslim and supporter of the terrorist networks.
He, like Bush, failed to make the GWOT respect the constitution;instead he allowed the constitution to respect the law on terror. He charged six whistleblowers with the 1917 espionage Act, including Snowden, Chelsea Manning, and an FBI agent who released information on CIA torture — invoking this 100 year old law more than all the prior presidents combined.
He refused to hold accountable those who planned and carried out torture, spouting the absurd idea that we should look forward not backward, and essentially providing immunity to all those who organized the torture. He directed his Justice Department to appeal favorable lower court rulings to allow habeas corpus rights to prisoners at Guantanamo and Bagram, and defended a suit against an airline involved in carrying out renditions for torture.
The fear and hate towards Muslims was growing, and now, with the protests of police killings in Ferguson and other places, supporters of the Black Lives Matter movementwere being called terrorists, as wer the amorphous Antifa. Connected to all this fear and hatred was the growing anti-immigrant movement. “Terrorists” were coming in over the southern border, and Obama responded by deporting almost two million immigrants and locking up unaccompanied children. Many in the white population argued that dangerous immigrants were coming here to replace them. And our history of genocide against Native people and racial bigotry and violence was alive and growing. The war against terrorism was brought home after years of brutal, murderous counterterrorism.
Should anyone had been surprised that all this fear of terrorism and racial hatred did not bring us Donald J. Trump? The liberals who supported Obama were now forced to see the security state as the savior of U.S. democracy. The CIA, U.S. Attorneys, and the FBI were the heroes. Ask yourself how many times you saw one of them as a talking head on TV defending the rule of law and the constitution in opposition to Trump. But did we forget all they did in the past to undermine the rule of law and the constitution? The question has been asked: “does the evacuation of Iraq and now Afghanistan bring an end to the GWOT?” I submit to you until we eliminate the U.S. interests in policing the world with drones and other forms of air power, and the U.S. ends its lust to control the Middle East, Latin America and Africa, the GWOT abroad and the war at home will continue, and the rule of law and the constitution will continue to be trampled.