Taking stock ten years later: 9/11 and the U.S. assault on international law
As the media is saturated with tributes to the victims of 9/11, other important issues are not receiving the attention they deserve. While paying due respect to the memory of those who died ten years ago in the terror attack of 9/11, it is also important to reflect on all that has been lost in the decade since. This includes nearly 8,000 American deaths in Iraq and Afghanistan, countless Iraqi and Afghan civilians killed and at least three trillion dollars spent on fighting the global war on terror, which has no end in sight.
Also lost have been precious constitutional rights, civil liberties, basic principles of international law, and even basic definitions of certain words. Euphemisms for torture (“enhanced interrogation”), kidnapping (“extraordinary rendition”), extrajudicial assassination (“targeted killings”) and wars of aggression (“preemptive war”) have become accepted language in the political lexicon, both redefining these concepts and providing a justification for violating the spirit and the letter of the law of various international treaties.
One issue, though, that will likely receive no serious attention at all is the question of government complicity in the attacks, whether elements in the U.S. government either had prior knowledge or an active hand in ensuring the attacks were successful, or a combination of both.
While this idea may be ridiculed in the mainstream media, it is actually central to understanding whether the erosion of international norms over the past ten years has been done by design, or whether it is an understandable – albeit undesirable – result of flawed American policies. And despite the implication that this idea is some fringe conspiracy theory, it is actually a rather widely held view in the United States.
A Zogby poll in 2006 found that 42 percent of Americans believe that there has indeed been a government cover-up regarding 9/11 and 45 percent saying that “Congress or an International Tribunal should re-investigate the attacks, including whether any US government officials consciously allowed or helped facilitate their success.” That is nearly half of the American public.
A New York Times/CBS News poll that same year asked Americans whether they think that members of the Bush administration were telling the truth, were mostly telling the truth but hiding something, or were mostly lying about what happened leading up to 9/11. Only 16 percent believed that the administration was telling the truth, while 53 percent said that they were hiding something and 28 percent saying that they were “mostly lying.”
More than a third of the American public suspects that federal officials assisted in the 9/11 terrorist attacks or took no action to stop them, according to a 2006 Scripps Howard/Ohio University poll. Thirty-six percent of respondents overall said it is “very likely” or “somewhat likely” that government officials either participated in the attacks on the World Trade Center and the Pentagon or allowed them to happen “because they wanted the United States to go to war in the Middle East.”
With these kinds of large pluralities expressing skepticism over the “official story,” and voicing support for a new independent investigation, one might think that some courageous soul in the media or government establishment would take up this cause or at least ask the relevant questions, but alas, it appears that courage is in short supply these days.
Ten years after the attacks, polling agencies no longer even seek to ascertain what the public believes about a possible government hand in the attacks, instead limiting questions to whether “U.S. wrongdoing prior to 9/11 may have motivated the attacks.” (43% say yes, while 45% disagree.)
Just as President Obama said that “we need to look forward as opposed to looking backwards” when it comes to prosecuting crimes committed by the Bush administration including torture of terror suspects and warrantless surveillance of U.S. citizens, it seems the same principle is being applied to the issue of government foreknowledge and/or complicity in the 9/11 terror event.
Obviously, though, there is an indispensable need to know what happened leading up to that attack, who may have facilitated it, and why – not only to restore the eroded faith in government as revealed in public opinion polls, or even simply for the sake of basic justice for the victims and their families. Just as important is to take stock of how far the U.S. has fallen from values it once championed, namely the rule of law, universal human rights and international principles of justice.
From the beginning of the so-called war on terror, high-ranking U.S. officials made it clear that this was going to be a new kind of war, under new kinds of rules, or perhaps under no rules whatsoever. As Dick Cheney declared on national television on Sept. 16, 2001:
We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.
When it comes to the question of torture, Cofer Black, who served as the Director of the CIA’s Counterterrorist Center from 1999 until May 2002 virtually admitted to the practice, testifying to Congress:
This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.
These anecdotes beg the question: Has the betrayal of American and international principles been an unfortunate byproduct of the government’s campaign against violent extremism, as is commonly assumed, or has this betrayal been intentional? Was the government forced to compromise on these principles in order to keep us safe, or was the intention all along to do away with intrusive constraints on state power?
Depending on whether one accepts the official story of 9/11 or rejects it significantly colors the answers that one may reach to these questions.
While many who question the government’s account of the 9/11 will point to the fact that the Patriot Act – which stripped away many basic American freedoms – was written prior to the attacks, and note that the Project for the New American Century had advocated an aggressive war footing in the Middle East, what is often overlooked is the systematic attack on treaties and international norms that commenced before the smoke had even cleared at Ground Zero.
The assault on international law has been particularly instructive. Despite the fact that the international community rallied to the cause of fighting terrorism – with NATO, for example, invoking Article 5 of the Washington Treaty for the first time ever, declaring the attack on New York and Washington an attack on the whole of the transatlantic alliance – the U.S. made clear that it would use the attacks to roll back principles of international law, rather than strengthen them. The U.S. government threw down the gauntlet when President George W. Bush, in an address to a joint session of Congress on September 20, 2001 said, “Either you are with us, or you are with the terrorists.”
In its declaration that there were no shades of grey in this struggle, and no room for equivocation, the U.S. essentially told nations of the world that they must go along with whatever the United States does, or that they would be designated as friends of the enemy. Bush, however, did offer an invitation for countries around the world to join in the U.S.-led struggle against the nebulous, ill-defined concept of terrorism:
We ask every nation to join us. We will ask, and we will need, the help of police forces, intelligence services, and banking systems around the world. The United States is grateful that many nations and many international organizations have already responded — with sympathy and with support. Nations from Latin America, to Asia, to Africa, to Europe, to the Islamic world. Perhaps the NATO Charter reflects best the attitude of the world: An attack on one is an attack on all.
The civilized world is rallying to America’s side.
Yet, soon after those kind words were spoken to the international community, the Bush administration began snubbing international agreements, citing terrorism even when terrorism had little or nothing to do with the international agreements that the U.S. was abrogating.
The first major move that the U.S. made towards undermining the fundamentals of the international system was the unilateral withdrawal from the Anti-Ballistic Missile Treaty with Russia in December 2001, in order to develop a longstanding U.S. dream of establishing a missile defense system in space, commonly known as “Star Wars.”
In announcing the unilateral withdrawal from the ABM Treaty, Bush said:
Today I am giving formal notice to Russia that the United States of America is withdrawing from this almost 30-year-old treaty. I have concluded the ABM treaty hinders our government’s ability to develop ways to protect our people from future terrorist or rogue state missile attacks.
No matter that the official 9/11 story is that 19 Muslim extremists thwarted the world’s greatest National Security State – with its trillion-dollar intelligence apparatus – and dealt a near-death blow to its financial and military headquarters with no more than a few box-cutters. A few months later the conventional wisdom was that in order to fight terrorism, the U.S. must nullify its longstanding international treaties, potentially opening up a whole new can of worms on arms control with Russia.
U.S. doctrine at the time also insisted that the Geneva Conventions no longer apply in international conflicts, particularly regarding the burgeoning “war on terror,” in which of course, you are either with us or against us.
Civilians were wantonly slaughtered in the U.S.-led war in Afghanistan as cluster bombs and “Daisy Cutters” were callously dropped on the impoverished, war-stricken country. The U.S. government also seemed willing to tolerate human rights abuses by new U.S. allies, such as Uzbekistan, who saw the war on terrorism as carte blanche to rid themselves of troublesome dissidents, usually of the Muslim variety.
But the turning point of the U.S. regression may have been Bush’s decision to effectively waive the Geneva Conventions as they pertained to Taliban and al Qaeda prisoners who were captured in Afghanistan and flown to the U.S. military base at Guantanamo Bay.
The international outcry over Guantanamo began almost instantly, when the living conditions of the prisoners were revealed, and particularly after photographs were released showing the detainees in open-air cages being subjected to sensory deprivation techniques.
European leaders and human rights groups objected to the treatment. Some of the loudest criticism came from the staunchest U.S. ally, the United Kingdom, where three cabinet ministers – Robin Cook, Patricia Hewitt and Jack Straw – expressed concern that the prisoners were not being treated well and that international agreements were being breached.
The UN High Commissioner for Human Rights, Mary Robinson, also objected to the treatment and called on the Bush administration to respect the Geneva Conventions. Robinson argued that because the Afghanistan conflict was of an international nature, “the law of international armed conflict applies.” She took issue with the administration’s assertion that the prisoners were “unlawful combatants” and thus outside the protections of the Geneva Conventions.
Subsequent analyses by scholars of international law confirmed Robinson’s assessment. As Luica Vierrucci concluded in the Journal of International Criminal Justice:
[T]hose Guantanamo detainees who are members of the Taliban armed forces must be presumed to be lawful combatants and, upon capture, have the right to POW status. Therefore the US refusal to grant them POW status places the US in violation of Article 5 of the Third Geneva Convention of 1949 requiring, in case of doubt, that POW status be granted until a ‘competent tribunal’ has made a final determination. As for Al Qaeda detainees treated by the US as ‘unlawful combatants’, they may not be held indefinitely in custody without charge. As ‘unlawful combatants’ they are civilians protected by the Fourth Geneva Convention of 1949 and enjoy its judicial safeguards.
One of the United States’ main arguments as it pertained to the treatment of designated enemies was that as “unlawful combatants” they unworthy of protections under international law. According to this view, Taliban and al Qaeda forces did not conform to the rules of war, and therefore did not qualify for protections under the Geneva Conventions.
In defending the denial of POW status for suspects detained at Guantanamo, U.S. Defense Secretary Donald Rumsfeld insisted that because the prisoners did not belong to a recognized army, or wear distinguishable insignia, they were not protected from torture and other ill-treatment under international law.
This denial of POW status based on the idea that irregular terrorist forces do not wear distinguishable insignia has been a guiding principle of the “war on terror” for the past decade. It has become clear in recent years, however, that U.S. forces also brush off those niceties in the prosecution of the “war on terror.”
As part of its “Top Secret America” series, the Washington Post recently detailed the inner workings of the U.S. military’s Joint Special Operations Command, which does not identify itself in any traditional sense by displaying rank or insignia. In fact, this special forces team reserves the right to assassinate anyone it chooses, claiming, “We’re the dark matter. We’re the force that orders the universe but can’t be seen.”
As the Post reports:
Created in 1980 but reinvented in recent years, JSOC has grown from 1,800 troops prior to 9/11 to as many as 25,000, a number that fluctuates according to its mission. It has its own intelligence division, its own drones and reconnaissance planes, even its own dedicated satellites. It also has its own cyberwarriors, who, on Sept. 11, 2008, shut down every jihadist Web site they knew.
Obscurity has been one of the unit’s hallmarks. When JSOC officers are working in civilian government agencies or U.S. embassies abroad, which they do often, they dispense with uniforms, unlike their other military comrades. In combat, they wear no name or rank identifiers. They have hidden behind various nicknames: the Secret Army of Northern Virginia, Task Force Green, Task Force 11, Task Force 121. JSOC leaders almost never speak in public. They have no unclassified Web site.
As Jeremy Scahill reported recently at the Nation:
Both President Bush and President Obama have reserved the right for US forces to operate lethally and unilaterally in any country across the globe in pursuit of alleged high value terrorists. The Obama administration’s expansion of US Special Operations activities globally has been authorized under a classified order dating back to the Bush administration. Originally signed in early 2004 by then–Secretary of Defense Donald Rumsfeld, it is known as the “AQN ExOrd,” or Al Qaeda Network Execute Order. The AQN ExOrd was intended to cut through bureaucratic and legal processes, allowing US special forces to move into denied areas or countries beyond the official battle zones of Iraq and Afghanistan. Gen. David Petraeus, who is poised to become director of the CIA, expanded and updated that order in late 2009. “JSOC has been more empowered more under this administration than any other in recent history,” a Special Ops source told The Nation. “No question.”
The right “reserved” by U.S. forces to kill enemies without any semblance of due process has no basis in international law. As the Harvard Law Review pointed out in 2006:
Black’s Law Dictionary defines assassination as ‘the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.’ If termed ‘assassination,’ then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws ‘treacherous’ attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on ‘perfidy.’
For the reasons laid out in international law, the U.S. has abandoned the use of the word “assassination,” and adopted the more politically correct “targeted killing.” But the change in terminology does not mean a change in the law, which explicitly prohibits extrajudicial executions, including state-sponsored assassinations, and requires that even the worst criminals be granted due process and fair trials.
While thoroughly denied the attention and respect that they deserve, these principles of due process, fair trials and basic justice are now more important than ever.
On this tenth anniversary of the 9/11 terror event, it is either time to constrain this lawless state, or ignore its lawlessness. For the past decade, the U.S. has acted as a law unto itself, and until it is constrained, its recklessness will only grow more brazen. At some point, reigning this power in may be more than anyone can handle.