“It feels like 9/11.” That’s one of the many heartbroken comments I overheard among shell-shocked New Yorkers the wake of the election of Donald Trump. Now, the differences of magnitude and factual reality between the murder of 3,000 individuals and the prophesies of doomsayers predicting fascism under Trump are fairly apparent. But the comparison between how these events felt is a telling one.
Then as now, many were caught completely off guard, and left to ask “why?”—in this case, why so many voters, while motivated by any number of reasons, failed to repudiate Trump's hateful rhetoric and dark visions of a country under siege by the Other. Then as now, it feels as if events have brought about a great change we don't yet understand.
Running through this unnatural hush is a justifiable worry, a panic, among those who, like myself, have diligently kept watch over the erosion of civil liberties that followed 9/11, brought about by a series of destructive acts—including torture, indefinite detention, and mass surveillance. In those years, we saw validated the early suspicions of many civil libertarians about the existence of secret, unconstitutional policies under the Bush administration. Efforts to expose those policies took time, and the doggedness of those committed to legality and transparency. The publication of The Torture Papers in December 2004, for instance, relied on the bull-headedness of my editor at Cambridge University Press, who repeatedly defended the use of the word torture to describe the Bush administration’s interrogation techniques; the book, which I co-edited as the Director of New York University’s Center on Law and Security, was the first of its time to use the word in a title.
But year after year, the legal system turned away the ACLU’s numerous lawsuits to protect civil liberties. When the suits finally got their day in court following the Snowden revelations, Americans learned that once programs existing outside the law—near-unlimited surveillance, indefinite detention—are installed, dismantling them becomes exceptionally hard.
With Donald Trump’s inauguration looming, a justified terror that law-breaking policies could return, and that new, aggressive violations of civil liberties could be brought to life, now stalks the republic. With Trump’s cavalier dismissal of civil liberties—through statements like “torture works,” among other things—he alludes to an even broader application of the policies that tarnished the Bush administration. While we don’t yet know whether Trump will fulfill his promises, we do know what happened the last time a president chose to sidestep the rule of law.
Among those lessons: When the White House asks, the rules can be broken as rapidly as dutiful government lawyers can put their pens to paper. During the Bush years, the quest for security even at the expense of liberty privileged government-designed policies of intolerance and widespread suspicion. The list is long: Guantanamo, Abu Ghraib, CIA black sites, the rounding up of thousands of Muslims, police profiling of mosques and Muslim neighborhoods, mass warrantless surveillance, and the intentional killing via drones of groups as well as individuals, including U.S. citizens. These policies, authorized by lawyers within the Justice Department, in essence revoked the constitutionally protected freedoms of speech and religion, freedom from unreasonable search and seizure, the guarantee of due process, and freedom from cruel and unusual punishment.
Through the Obama years, the country had slowly begun restoring respect for the rule of law. By the 2016 election season, some of the worst elements of the post-9/11 erosion of civil liberties had been dispensed with. The bulk surveillance of Americans’ telephony metadata codified in the Patriot Act is no longer. Torture is once again forbidden. Agencies that profiled Muslims, like the NYPD, have been chastened.
But once the fabric that weaves the country together—the Constitution—is torn, reassembling it is a daunting task.
Today, all too much of the original apparatus of the war on terror remains in place. The 2001 Authorization for Use of Military Force against “al-Qaeda and associated forces,” stretched beyond its literal limits for years now, has yet to be repealed or replaced by narrower, more geographically specific directives for the expanding wars in the Middle East. There it lies, at the ready for the Trump administration. Equally available is a list compiled by Obama’s top national security advisers of those abroad who can be targeted by a drone strike; to date, there is no meaningful oversight of the list. Executive power, strengthened under Bush and relied upon by Obama, still insufficiently tethered, awaits a new president.
When it comes to the choice between liberty and security, Trump has said, he chooses the latter. He has vowed to stop immigrants from “any nation that has been compromised by terrorism” and to deport those who have “criminal records, gang members, drug dealers.” He has expressed a willingness to do “a lot more than waterboarding” to terrorism suspects. He has entertained the possibility of restoring the Patriot Act’s provision for bulk surveillance. He champions the creation of a national database of immigrants from Muslim-majority countries and “surveillance of these people that are coming in—the Trojan Horse!” as he put it. He has called for keeping the detention facility at Guantanamo Bay open. And when it comes to drones, he looks to expanded targeting. “When you get these terrorists, you have to take out their families,” he has said. Mind-bogglingly, one of the names Trump is rumored to be considering for the head of the CIA is Jose Rodriguez, one of the architects of the torture program.
Without formulating any detailed policies, Trump has suggested magnifying the racism and the heretofore illegal and unconstitutional policies of the post-9/11 era. He has suggested adding Americans to the population at Gitmo, a policy banned since the opening of the detention center in January 2002.
All this was perhaps foreseeable even before Trump emerged as the Republican nominee. Without calling for accountability via trial, professional sanctions, or even a truth commission, Bush-era transgressions were kept alive by the Obama administration. From Dick Cheney to Barack Obama, the opinion in Washington was that accountability should be avoided when it came to the war on terror, due to political pragmatism and a misplaced belief that the country could move on without reckoning with the past.
The frightening future scenario recalls the fears articulated by Bush’s most stalwart opponents. For years, civil libertarians warned that the abuse of and denial of rights to Muslims carried with it the potential poisoning of liberty and justice for everyone. Those of us who worked to oppose indefinite detention argued that a future president could one day choose to lock up anyone he wanted and deny him access to a lawyer, or the courts, with zero redress. A president with such unbound powers could choose to return to torture or invoke secret decisions for detention and killing as as he saw fit. A president, beginning with the powers granted to Bush and Obama, could potentially expand his roster of enemies.
What, then, can we expect from a President Trump if he delivers on his campaign declarations? We can’t predict the future, especially as he is known for shifting views that defy predictability. And we can certainly hope for the best. Last Thursday, encouragingly, Trump’s proposal to ban Muslims was removed from his campaign website. By Friday, it had been restored.
Perhaps the ACLU, the Center for Constitutional Rights, the Electronic Frontier Foundation or other, new organizations, will be better able to find allies in fighting for civil liberties. Perhaps a broadened coalition of Republicans as well as Democrats will use the lessons of the Bush era to forestall at the outset the intentional dismissal of rights in the name of national security. Lawmakers of both parties know well that torture, anathema to U.S. law, has paralyzed the military commissions in their efforts to prosecute the 9/11 defendants, since evidence obtained through torture has been deemed inadmissible. Indefinite detention has turned a temporary facility at Guantanamo Bay into a forever facility, at an American taxpayer expense of over $7.5 million per detainee per year. And the bulk collection of metadata, according to government reports, has proven ineffective at stopping terrorist attacks. Bipartisan opposition to renewing the Bush policies should not be dismissed with a despairing shrug.
The Trump presidency will present a true test of America’s democratic institutions. Hopefully, they have the strength and flexibility to withstand any potential challenges to the country’s founding principles, deter policies that violate law and precedent, and honor the balance of powers among branches of government. With support, the country’s institutions may not succumb to the wave of discontent among Americans that has brought to power a politician for whom law and principle have too often been declared obstacles. In any case, those of us who failed to cherish our democracy up to this point are newly pious souls.
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