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United National Antiwar Coalition (UNAC) Conference, Stamford, CT March 25, 2012 Selected audio from plenary sessions and panel discussions

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Legacy of Fear: 9/11 and the Erosion of Civil Liberties

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Posted Sept. 7, 2011

Interview with Vincent Warren, executive director of the Center for Constitutional Rights, conducted by Melinda Tuhus

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September 11, 2011 marks the 10th anniversary of the terrorist attacks on the United States that dramatically changed the political and security landscape of the nation. Across the country this week, public observances, prayer services and other events will commemorate the deaths of 2,977 victims that terrible day.

Rather than treating the al Qaida organized terrorist attack as a heinous criminal act that could be pursued through the established national and international criminal justice system, President George W. Bush responded with a declaration of war. Bush's desire to retaliate against the attack with overwhelming force, and his goal of overthrowing Saddam Hussein’s regime, led the U.S into two wars, first in Afghanistan and then in Iraq, a nation with no provable connection to the Sept. 11 attacks. A decade later, the U.S. is still embroiled in conflicts in both countries. Putting the U.S. on a war footing also had important consequences for the civil liberties of foreign fighters held by the U.S. at Guantanamo Bay and other CIA run secret prisons, as well as for American citizens.

In defiance of the U.S. Constitution, the Bush administration engaged in the abuse and torture of detainees, warrantless surveillance of civilian communications and subjected prisoners accused of terrorism to indefinite and preventive detention. Between The Lines’ Melinda Tuhus spoke with Vincent Warren, executive director of the Center for Constitutional Rights, which has been at the forefront of many of the lawsuits filed against the Bush and Obama administrations in an effort to protect civil liberties. Here, he discusses some of the consequences of the war on terror ten years later.

VINCENT WARREN: One thing we can say very clearly, is that when George Bush entered the first decade of the 21st century, he shredded the Constitution. Barack Obama is the president at the end of the decade and he is refusing to put the Constitution back together again.

What we saw under the George Bush administration was the advent of the war paradigm, which is treating things that historically and very successfully had been treated as criminal problems, as a problem of war. So, for example, when you have terrorist activity, and terrorist bombings and terrorist plots, that used to be considered criminal activity, and it was a no-brainer 10 years ago that these cases would be investigated, that where there were allegations that could be made consistent with the law, they would be arrested and tried in federal courts. Now, 10 years later – primarily because of George Bush – the question of whether people will go to federal court, or military courts, or whether they'll even go to court at all for these types of activities is something that's not settled at all, and it seems to be at the whim of the political winds that are blowing rather than with respect to the rule of law.

The problem with the war paradigm that was started with the war is this: If you asked any high school freshman in the U.S. 10 years ago what was the most powerful branch of government, 10 years ago they might say the president – the executive – was the least powerful branch because of the balance of powers. If you ask that question of a high school freshman now, they'll most likely say it's the president of the U.S. And that really underscores the big shift that's happened in the last 10 years: the presidential power grab that was started by the Bush administration and has continued, frankly, with the Obama administration, I think really signals one of the most deeply troubling aspects of the potential fall of American democracy – the idea that there is literally no branch of government, and no ability of the people to check the power of the president.

And we know this because when the first men were brought to Guantanamo in 2002, George Bush said that these men could not be tried in any court, and created, essentially, a legal black hole in Guantanamo to keep people from going to court to challenge presidential authority. And that concept has metastasized into virtually all aspects of criminal activity and investigation of criminal activity with respect to the war on terror. It used to be that torture was anathema. Torture has now become a "valid question" to be discussed among academics, politicos, and the general populace: Does it work? Is it legal? And things of that nature. What is true now was also true in 2001 before the World Trade Center fell down: Torture is a crime. There's no two ways about it; there's no justification for torture. And although President Obama has issued policy directives that torture should not happen, President Obama has not given up the authority to take any type of extra-legal actions if he feels the situation warrants. So it's taken different forms, and so we don't have, allegedly, these CIA black sites where people were being tortured in secret, and we don't now see the same type of torture at Guantanamo that we saw before. But what we do see is, like in a recent case when President Obama captured somebody that was involved in the Horn of Africa, rather than bringing that person immediately to federal court, what they did was interrogate this person for months in a ship at sea purportedly outside the legal paradigm. This is a shift from what George Bush did in terms of tactic, but it's not a shift in terms of how this president sees his authority in a time of "war."

BETWEEN THE LINES: Vince Warren, that all makes sense in terms of what we've seen regarding the war on terror, but it seems so much at odds with how weak the president seems in confronting Congress on other issues. Is that just because maybe Congress and Obama agree on the need to continue the paradigm that George Bush started or not to oppose it?

VINCENT WARREN: Well, I think we shouldn't confuse the power of the presidency with the potency of a particular president. And I think what is quite clear is that President Obama is making policy choices that many people in Congress, particularly the Republicans and the right wing disagree with, and they're pushing back on him, mostly for political reasons. For example, the president has moved to have some of the Guantanamo men tried in federal court, which is a very good thing. Congress pushed back on that and the reason they pushed back was not because they were so concerned about the rule of law and they were trying to make it difficult for him politically moving into the 2012 elections. Now, what President Obama didn't do is he didn't insist on the rule of law and insist they be tried in federal court if there's a case against them, and he retreated. And so he's created a category of people in Guantanamo which we estimate is about 40 people that the president has no intention of trying, whatsoever.

So it's less a question of what the presidential power is and whether the president uses it for good and evil. The question really is what kind of potency this president has to do the right thing as opposed to getting push back from Congress and then taking a compromise position that puts him squarely in "George Bush-land" with respect to how he's dealing with the Guantanamo detainees. So what you have is a situation where Barack Obama – while it looks like it's difficult for him to move the men from Guantanamo into federal trials or to release them, and I think that's certainly true – he does explicitly retain the power to keep the men at Guantanamo if Congress doesn't let him move things forward, and that is no change from the George Bush position.

To learn more about the Center for Constitutional Rights, visit www.ccrjustice.org

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