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Just Another Week in the War on Terror

by Joseph Margulies, Verdict (Justia)

Last week witnessed four parallel developments—two on Tuesday and two more on Wednesday—that collectively reveal the casual, and therefore appalling, normality of the war on terror.

The first arrived Tuesday morning, when the European Court of Human Rights (ECHR) in Strasbourg denied a request by Poland to reconsider its judgment in Al Nashiri & Abu Zubaydah v. Poland, which held Poland responsible for the torture and illegal imprisonment of CIA prisoners at a Polish black site. With the ruling last week, the judgment is now final. (Disclosure: I am one of the lawyers for Abu Zubaydah).

Later the same day, a Russian software maker revealed that the NSA has developed the technology to embed spyware in the hard drives of most of the world’s computers, giving it the long-prized capacity to disrupt or monitor in real time a majority of the computers in the world. Former NSA staffers confirmed the report.

Twenty-four hours later, the military commission system vacated the conviction and sentence for Australian David Hicks, who had been one of the few prisoners convicted under that much-maligned alternative legal universe. David has been home for many years, but the decision last week finally removed any lingering legal vestige of his guilt. (More disclosure: I am also one of the lawyers for David Hicks).

And lastly, the same day that the court vacated the conviction for Hicks, the Obama administration held a one-day conference at the White House and State Department dedicated to combating violent extremism, which itself came on the heels of a request by the Obama administration for a new congressional authorization to use military force against ISIL.

Each of these events is important in its own right, or so some might think. The decision by the ECHR represents the only judgment against a European country for its role in the CIA “enhanced interrogation” program and may lead to genuine accountability for torture when Poland begins proceedings to implement the court’s decision. The decision to vacate the conviction of David Hicks is yet another blow to a beleaguered military commission system that has astonishingly little to show for its decade-plus, multi-million-dollar existence.

Likewise, the disclosure that the United States government can spy on most anyone who uses a computer is worth noting, or so it seems to me. And since the NSA would not have sought this terrifying capacity without a determination to use it, one might have thought we should do more than merely note the state of play. Finally, as for convening on violent extremism, I would suggest that whenever the president and his staff publicly describe the philosophy undergirding their strategy in an ongoing and apparently endless war, we should pay attention.

Yet judging by the attention these matters received, they are not events of particular consequence in American life. They came and went. Even the day-long conference, which included a major speech by the president, fell out of the news by Thursday.

So, if the events do not matter much in isolation, can we draw any lesson from them as a group? Some may be tempted to suppose that the Strasbourg judgment and the Hicks decision stand in for the heavy-handed and extra-legal approach of the Bush administration, while the NSA disclosure and the all-day convening symbolize the high-tech but hypocritical approach of the Obama administration; on Tuesday, we learned that the federal government has developed the unilateral capacity to spy on anyone, anywhere, so long as they turn on a computer, and on Wednesday we heard the president proclaim that global tolerance and human rights were the antidote to violent extremism.

I’m not impressed with then-and-now interpretations, and think they draw far too much from far too little. Bush doubtless would have deployed the NSA in precisely the same way as Obama, had the technology been available to him, and Obama has not abandoned the military commission system he inherited from his predecessor, nor has he ended the use of extra-legal and proxy detentions around the world. Let’s not imagine differences that don’t exist, or exist but don’t really amount to much.

The better reading of these four events—and many others like them that scroll across the bottom of the national television screen every evening—must focus on how utterly immaterial they have become to American life. Practically by definition, only the irregular makes news. Normal is that which we no longer consider out of the ordinary. And if we have reached any point at all since 9/11, it is that nothing associated with the war on terror is now out of the ordinary.

Everyone and everything about terror—from its contested partisan meaning to the rhetorical and real response it produces in the public square—has finally but firmly sunk into familiar, and psychologically comforting, roles. The executive wages war, Congress takes to the airwaves to nip and bark at his heels, and courts rule this way or that on the tiny number of issues that survive doctrines like state secrets and sovereign immunity. Meanwhile, a massive security state takes shape while drones rain destruction on distant, unpronounceable targets, spymasters hack computers, and the president urges us to celebrate democracy.

Outside of government, civil society has adopted its customary place in the performance. Predictable groups like the Council on American–Islamic Relations (CAIR) and the ACLU raise predictable objections to predictable outrages—defaced mosques, Islamophobic threats, and hateful graffiti—which prompt the usual journalists to write predictable pieces that hit all the predictable notes about the fate of tolerance in a free society and the imagined trade-off between liberty and security. Meanwhile, everything the president says meets with a predictable response by ideologically entrenched camps. The left protests that he is essentializing Islam, and the right complains that he isn’t essentializing it enough.

Even the threat that represents the ostensible justification for this endless war has taken on its predetermined, routinized sameness. ISIL has happily assumed the role of demon du jour, and therefore becomes relevant only as a stage piece, which is to say, as a symbol. Its savagery reassures us of our righteousness, which allows us to ignore the far more deadly attacks launched by, for instance, Boko Haram or the Syrian government, as well as the instability we created when we lurched headlong into Iraq, to say nothing of the far more serious threats to global stability like climate change and economic disequilibrium.

And meanwhile, the enormous machinery we have put in place—the laws, the departments, committees, and institutions, the secrecy, the funding, the collective expectations, the trivial partisan divides—all of it becomes ever more deeply embedded into American life, more firmly entrenched, less visible, less exceptional. More normal.  Just another week.

Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.


This article was originally published on February 23, 2015 by Verdict, legal analysis and commentary from Justia; reprinted with permission.