Eighteen years after the attacks of September 11, 2001, a trial date was recently set for the men accused of plotting those attacks. But what has taken so long? And is a fair trial even possible? On this anniversary of 9/11, we're replaying an interview from last year with Hina Shamsi, director of the ACLU’s National Security Project. Hina talked to At Liberty about how America's response to 9/11 has corrupted our institutions and the role that torture has played in the process.

EMERSON SYKES

[00:00:05] From the ACLU, this is At Liberty. I’m Emerson Sykes, a staff attorney here at the ACLU and your host.

Eighteen years after the attacks of September 11th, 2001, a trial date was recently set for the men accused of plotting those attacks. But what has taken so long, and is a fair trial even possible? On this anniversary of 9/11, we’re replaying an interview from last year with Hina Shamsi, director of the ACLU’s National Security Project. Hina talked to my predecessor, Lee Rowland, about how America’s response to 9/11 has corrupted our institutions and the role that torture has played in the process. To learn more about the ACLU confronted government abuses after 9/11, visit www.aclu.org/911response.

LEE ROWLAND

This September 11th marked 17 years since the largest terror attack on U.S. soil and our nation's political response to the tragedy. The War on Terror has dominated America’s foreign policy, military priorities, and human rights record ever since. Perhaps no place on earth is a better symbol of that war than the prison at Guantanamo Bay, Cuba. In 2009, President Obama signed an executive order trying to close it, and earlier this year, Trump signed an executive order to keep it open. 40 prisoners remain there today.

What does the continued existence of Guantanamo say about the rule of law since 9/11? Here to help us answer that is Hina Shamsi, the director of the ACLU’s National Security Project. Hina has represented CIA torture victims and Guantanamo Bay detainees. And has, unfortunately, had a close-up view of what's gone horribly wrong in America's War on Terror. Hina, that downer of an intro notwithstanding, thank you for being here.

HINA SHAMSI

[00:02:05] My pleasure, despite the downer of an introduction.

LEE

So let's start with Guantanamo um, I think it's fair to say it's faded a bit to the backburner of our political conversation. Why should people still care about Guantanamo and the 40 men that stay there?

HINA

You know, it’s--it's a really good question, Lee. And let's start with both what Guantanamo is and what it represents. So Guantanamo began back in 2002, when President Bush authorized the transfer there of multiple men. And it came to hold about 800 men — 779 men. And--and here's sort of the underlying problem with it — and really the underlying problem with the entire nomenclature of quote-unquote “the War on Terror” — which is that people were transferred there under this sort of war paradigm, right, even though they were not necessarily captured in the context of an actual war. In the context of an actual war, a recognized war, nation-states are able to do what they don't get to do in peacetime, like hold people without all of the indicia of due process that we require, right?

LEE

So a prisoner of war camp, for example, something we think of historically as temporary or onsite during a conflict.

HINA

[00:03:36] Exactly right. But even with prisoners of war, you have status determinations, right? Are they legitimately prisoners of war? Are they civilians who should not be detained? And all of those categories and frameworks — which are really important to distinguish between what you are possibly permitted to do in an exceptional context — the Bush administration tried to make the norm. And, so the path we went down with Guantanamo was indefinite detention without charge or trial, which should be exceptional, but applied to people to whom it should not be applied. Only five percent of the people who were actually held in Guantanamo were captured by the United States.

LEE

Of all of folks who have been in Guantanamo since its inception.

HINA

That's right. Approximately 86 percent were handed over to the United States for bounties, right. And multiple people who were in Guantanamo were actually captured far outside of any armed conflict. That's the danger of the global war paradigm. That, for example, is what happened to my client Mohamedou Slahi, who turned himself in voluntarily to Mauritanian authorities, entered the nightmare of extraordinary rendition and detention that was the Bush administration's program, was tortured at the behest of the United States in Jordan, transferred to Bagram, transferred to Guantanamo where he was held for 14 years without charge or trial before he was ultimately released a couple of years ago.

LEE

You’ve used the phrase “war paradigm.” What does that mean?

HINA

So the laws of war legitimately apply when you're actually having fighting that has intensity and duration. Because what we want, and what the United States helped set up, is for war to be an exceptional thing. Because when you make the war-based rule apply in ways and places where they don't apply then you're actually doing away with the kinds of constraints that help limit arbitrary government power to detain, to kill, to surveil — the kinds of things that should be exceptional and not the norm.

LEE

[00:06:07] It's certainly my impression that a state of war is a cause for deference to the government in all kinds of ways that affect our civil rights, whether it is due process, or the government's right to search and seizure, or even free speech, right? So whether or not the government invokes war really matters, right, to the breadth of its powers.

HINA

It really matters. And that's why we thought it was so important to point out the record of Judge Kavanaugh on the D.C. Circuit. Judge Kavanaugh's record gives the government extreme, excessive deference to the executive in determining what is war and deviations from the war, such that the executive becomes unchecked on issues of detention and other issues.

LEE

Can you give any examples of the kind of cases where he's ruled in ways that would give you that concern?

HINA

Absolutely. So let me give you the example of one of our cases again. Amir Meshal, a U.S. citizen who was held through proxy detention by FBI agents in three different countries in the Horn of Africa over a period of four months. They abused him. They threatened him with death, with continuing detention, other abuses unless he confessed to crimes that he was adamant he didn't commit, right. And so we filed a case on his behalf arguing that his Fourth and Fifth Amendment rights had been violated: Fourth Amendment rights against unlawful seizure, Fifth Amendment rights against detention without due process.

[00:07:46] And the government argued that he had no remedy because the FBI agents had been acting abroad, extraterritorially in the context of a counterterrorism operation. Now what Judge Kavanaugh did was go out of his way to write a separate opinion called a concurrence that essentially said that the court shouldn't step in in the context of any kind of counterterrorism operation abroad. And so that's deference carried to an extreme. That’s---

LEE

So basically that the federal judiciary has no role to play--

HINA

Right.

LEE

In second guessing human rights or civil rights abuses that occur in the context of war.

HINA

That's right. That was the outcome of Judge Kavanaugh's reasoning. And that is a scary thing.

LEE

That’s very creepy.

HINA

But look at what the Bush administration did with respect to Guantanamo in taking that argument even further, and why Guantanamo in essence became and still is a laboratory for lawlessness and the consequences of lawlessness. And that's torture. What corrupts Guantanamo right from the beginning, is torture, because the Bush administration claimed and carried out for really the first time in U.S. history — and let's just pause here and say U.S. history has by no means been perfect, right — but this was really the first time that we embarked on a state-sanctioned policy of torture that reached its tentacles around the world and for people captured in different places. Torture was carried out by the CIA, torture was also carried out at Guantanamo by the military.

LEE

Is that why it's located in Cuba? Was that location selected with the intent that we engage in these kind of abuses somewhere with less accountability?

HINA

[00:09:48] Absolutely. It was intended to be an island outside of law, and so part of the history of Guantanamo is the history of years of litigation to try and impose, on this regime. the rule of law. And that story is ongoing. Torture is like a cancer, and it spreads and it corrupts institutions we care about, and the consequences of torture continue to corrupt in the military commissions today.

LEE

Let's talk about the consequences of torture. Of the hundreds of detainees who have been in Guantanamo over its existence, have a significant number of them been tortured either before or during incarceration there at the camp?

HINA

Absolutely. So approximately 26 detainees were held in CIA custody and--and tortured by the CIA before they were transferred, and then multiple more were tortured in Guantanamo while they were there. And that story is still a particularly American story. It's also the story of why the commissions are failing.

LEE

When were the military commissions first set up?

HINA

The military commissions were set up under the Bush administration ostensibly to prosecute, you know, the worst of the worst, these terrorism suspects, by bringing in evidence of torture, confessions obtained through torture, against the very people who had been tortured with rules that were not only set up to do that but also deviated in hugely important ways from rules in the federal courts, for example, that are set up to achieve a fair process and a fair outcome.

LEE

So how many men-- and I'm assuming they’re all men?

HINA

That’s right.

LEE

--Have been tried during the military commissions process?

HINA

So there have been eight convictions in the military commissions process. You know, three of them have been reversed.

LEE

Wow.

HINA

[00:11:59] One of them was uncontested. There are currently 10 people who are still going through the military commissions process.

LEE

So these military commissions are still going on almost 15 years after they began. Who is still caught up in them today, and what's going on in these interminable trials?

HINA

Among the people who are being prosecuted are the people accused of the 9/11 attacks. And--

LEE

Including Khalid Sheikh Mohammed?

HINA

Including Khalid Sheikh Mohammed. So the week of 9/11 was the 31st pretrial hearing in the military commissions prosecution of the people accused of the 9/11 attack.

LEE

And a pretrial hearing is basically where the lawyers go in and work out the logistics for an upcoming trial?

HINA

Well, the pretrial hearing for the Guantanamo military commissions is many, many things. They are fights over fairness of process, over fundamental things like what crimes get tried in these proceedings. They are fights over access to evidence that the government has against the people who have been accused. And we've got torture, again, because the government is reluctant to hand over information that would allow the story of the full torture program either to come out publicly or to be conveyed to the defendants’ attorneys in the first place.

LEE

Do the defendants’ attorneys have enough information to meaningfully defend their clients of the crimes they're accused of?

HINA

They don't. And this is something that, when I talk about it — well I don't, I don't get invited to many parties anymore when I talk about these things, but, when I talk about it —

LEE

You're safe here. We’ll invite you back.

HINA

[00:13:52] Thank you, thank you. But, you know, people ask, well, why is this so important, you've got people who've been accused of these terrible crimes. And, you know, one of the most formative experiences for me in law school was working in a death penalty clinic. And what my mentor and professor taught me then, which I still continue to apply, is that a system is only as fair and reliable and trustworthy as it treats fairly and reliably its worst offenders.

And that's what we're talking about here. These are really the most important terrorism trials in the history of our country. And so we, I would expect, need and want them to be fair in process and in outcome. So, you know, when we're talking about 17 years and how long it's taken, that's the fault of the government. If you're going to start out with a process that began intended to convict people based on torture, then we really are mired in a system that is not going to guarantee a fair outcome that we can stand behind as a country.

LEE

So these commissions, among the other issues in the pretrial hearings, are currently stalled because the judge's last ruling banned the use of some of this evidence by prosecutors. Is that right? What happens next?

HINA

Yeah. So they're actually not stalled. And the ruling was fairly limited but also very telling, because what the judge said is that statements made to FBI clean teams — this was an entire process of after the torture ostensibly stopped, this newfangled “clean team” mechanism was instituted to come in and interrogate them and get confessions and--

LEE

And these confessions would have been at least theoretically washed of the sins of prior torture. That was the idea of the clean team?

HINA

[00:16:01] That was the theory of the clean teams and what the defense attorneys argued, was actually the impact of torture is ongoing, and there is good scientific evidence of that, but also for these purposes, because of the constraints that the government has put on the defense in terms of what they can investigate and what access they have to information about the torture program, the judge agreed that the defense team wouldn’t be able to effectively challenge these clean team statements.

LEE

These clean teams are something a decade or 15 years ago, right, at this point?

HINA

A little bit less than that, but yeah.

LEE

Okay. Why is justice so slow in these cases?

HINA

What we want is not necessarily a speedy outcome but a just process and a fair outcome. And that's partly why it's taking so long, because at bottom everything that we've been talking about here, Lee, these are a novel system. They deviate from accepted rules of both the military justice system and the federal criminal justice system. And so, the one thing that I think you can have guaranteed is that those rules are going to be contested.

President Obama and Attorney General Holder actually wanted these cases tried in the federal criminal justice system and that didn't happen. It was a combination of, quite frankly, the executive branch's failure to prepare New York political leaders for transferring people here and the triumph of the politics of fear here in New York, and elsewhere, over a system of justice that we might be able to stand behind.

LEE

What other consequences of the War on Terror are you seeing reverberate through society?

HINA

[00:17:59] Oh wow, that's a good and complex question because I think, on the one hand, you have a generation growing up for whom the fact that this country carried out torture is an accepted thing, right? Not an exceptional thing, not a shameful thing. But this is — this happened, and we've actually not as a country fully grappled with accountability for torture. Largely this country's record has been impunity for torture. And so that plays out in more corruption and in more wrongheaded policies and outcomes.

Let me just take one example: so the head of the CIA right now, Gina Haspel. Unbelievable to me and outrageous to me that the head of the CIA is a woman who was one of the key actors in the CIA torture program and who participated in the cover-up and destruction of torture evidence. If we had had accountability, we would not be sending this signal to the world and to existing generations that that is okay by elevating this woman to the position that she now has.

LEE

Does it surprise you when it comes to Trump? He ran in part on a platform of being soft, if not enthusiastic, about torture and making sure Guantanamo stayed open, right? Wasn't she kind of a natural pick for somebody like that?

HINA

[00:19:41] Yeah. No, it doesn't surprise me from Trump, and I'm not sure how much I'd say I'm surprised. I am still angry and outraged that Obama administration officials promoted Gina Haspel’s position, and I'm not sure that she would have been confirmed if Bush and Obama administration officials hadn't, you know, pressed for her with members of Congress. And I'm angry and outraged that Congress actually approved this nomination. It was a close vote.

LEE

Recently, though, I've seen folks on the left lionize people like James Clapper or John Brennan. And I'm wondering if you think the military industrial complex kind of rises above party.

HINA

Yeah, you know, military industrial complex, it gets batted around and derided. But remember it comes, if I'm not mistaken, from Eisenhower who warned against it.

LEE

As he left office.

HINA

As he left office.

LEE

He said this will be the death of us all if we're not careful.

HINA

Right. And so, “As he left office,” is also the important part here.

LEE

That’s when he found his courage to stand up to that complex.

HINA

Yeah. And you look at the courage that is being demonstrated and valued by many on the left of intelligence and military officials who helped promote some of the most rights-violating national security policies of the last 17 years. And so to my mind, the perversity of this is that the resistance, whatever it is, is an inch deep, if it entrenches the views and values of the people who promoted, defended torture like John Brennan, or warrantless surveillance and lying to Congress like James Clapper, or falsehoods to Congress about the torture program like Mike Hayden.

[00:21:52] You know, these and others are now promoted as heroes and courageous heroes because they are critics of the Trump administration, and--and when people look at that and think about that, a couple of things: One is, these are the very people who have promoted policies and institutions that from a national security perspective are allowing Trump to do what he does today. So on the one hand, they've promoted them. On the other hand, they turn around, and they criticize Trump. They're not criticizing Trump for these rights violations, right? They're criticizing Trump for violating norms.

You know when we think about coming out of these Trump years — and God knows we all want to come out of these Trump years whole, or as whole as possible, given all the damage and violence that has been done — what they really have shown is that it's not the norms really that are going to protect us. It's institutions that put meaningful limits when the executive branch commits massive rights violations. And the story of the last 17 years in national security is a story of the executive branch committing massive rights violations. And so we are not going to come out of this whole if we promote as heroes the very people who helped perpetuate or advance those rights violations.

LEE

National security often feels inherently far away and abstract for people. Are there ways in which we've warped our norms in the name of the war on terror that have affected civil rights here at home in America?

HINA

[00:23:45] It's such an important question and I, you know, it's part of, it's part of what informs my day to day, quite frankly. You know, one of our clients in our lawsuit against the NYPD for its surveillance of Muslims tweeted last week that every day for him and people like him was September 12, 2001. And what he meant by that was that even though there was a period of coming together, and, you know, anger and outrage and grief, for so many communities in this country, for the minority communities in this country, this was a story that is continuing of backlash, of discrimination on the grounds of national security, of being seen through a security lens as being on the verge of carrying out wrongs that they are absolutely not responsible for, of being watch-listed, of being surveilled, of being targeted and investigated.

So this is a story that applies to communities of people of South Asian, Arab American, Muslim origins, Black Americans, those who are at the intersection of a lot of those categories and communities. So for America's minority communities, the harms of the National Security State are an everyday, and ongoing occurrence.

LEE

What institutions are our best hope? You know, what do you think is our best bet for ending this forever war and putting a stop to the ways in which it's warped our values?

HINA

What should be the best tools: Congress and the courts. But you get tempted sometimes to say, “Pox on both your houses, folks,” because Congress has not exercised its role as a limit or its oversight function. The courts have a pretty shameful record in terms of putting limits on rights violations, which is not to say they haven't done it. There have been some really important cases, you know, finding habeas corpus for Guantanamo detainees, other--other cases, so I don't want to sell that short.

[00:26:06] But I think it's also got to be all of us. It's got to be all of us educating ourselves — and I’m thinking especially of that generation that, you know, grew up with these norms and rights violations as a normal thing — about why they're wrong, about voting for people who have a pro-civil and -human rights agenda, about bringing that back into the mainstream. And so when I think about hope, you know, my folks, my team and I, we’re still going to continue to litigate because we still have hope. We still have belief in those systems. But really where a lot of that hope comes from is our--our fellow human beings, our fellow Americans, the people who have the fortune of having the right to vote exercising it in the ways that will achieve long-lasting change.

LEE

Hina, thank you so much for being in the studio today.

HINA

My pleasure. Thank you for having me.

EMERSON

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‘Til next week, peace.