Benjamin R. Farley writes:

Many Americans like to tell themselves a story about the choices the country makes in times of national crisis. We see our country’s policies as a pendulum. We may overreact at first, temporarily sacrificing principles and rights to meet the emergency at hand. But eventually the crisis recedes, and in restoring our commitment to foundational principles and the rule of law, we push the pendulum back toward equilibrium.

This story is comforting; it makes sense of America’s reactions to crises throughout the country’s history. Indeed, I’ve repeatedly used this story to explain America’s post-9/11 policies even as I’ve played a small part in it. From 2013 to 2017, I was an adviser to the special envoy in the State Department’s Guantánamo-closure office. Since 2017, I have served as an attorney in the Department of Defense’s Military Commissions Defense Organization, on the team that represents Ammar al Baluchi—one of the men at Guantánamo facing the death penalty before the 9/11 military commission. But what I write here represents my own views, and not those of the Department of Defense. Unfortunately, the story I have told of post-9/11 overreaction and excess rectified by American institutions looks more and more like a fairy tale—albeit one that the Biden administration might yet redeem as truth.

Our pendulum swung in the aftermath of one of the most devastating terrorist acts in history, when then-President George W. Bush adopted a set of extraordinary policies inextricably linked with the detention facility at Guantánamo Bay, Cuba. Those post-9/11 policies constituted a significant departure from American law and values. Bush authorized the Central Intelligence Agency to kidnap and detain individuals believed to be linked to al-Qaeda at secret dungeons around the world. At those locations—“black sites”—the United States imprisoned men incommunicado and practiced torture in violation of both a universal prohibition and America’s own vocal repudiation of the tactic. So-called enhanced interrogation included, among other abhorrent tactics, hooding, forced nudity, hallucination-inducing sleep deprivation, and concussion-inducing beatings, as well as war crimes that the United States had previously prosecuted, such as waterboarding. In some cases, U.S. personnel treated men such as my client as “training props,” tormenting them without even trying to gather intelligence. At least 26 of the 119 men whom the United States has acknowledged were imprisoned as part of its so-called Rendition, Detention, and Interrogation program should not have been, according to the program’s own standards. One black site was even co-located with the offshore prison camp Bush established at Guantánamo Bay, where nearly 800 men have been detained—supposedly under the laws of war but largely without the protections that body of law provides. [Continue reading…]