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S2: We tortured people, I mean, 30 years ago, we would have thought we America wouldn’t do that. Are we systematically did it? We rationalize that through high level, you know, legal counsel, albeit fraudulent lawyering. And no one was held accountable.
S1: Hi, and welcome back to Amicus. This is Slate’s podcast about the law and the courts, the Supreme Court, the rule of law. I’m Dahlia Lithwick, and I cover those things for Slate. This weekend marks the 20th anniversary of 911 and as the withdrawal from Afghanistan continues to dominate the headlines. So does the conversation about this forever war on terror and its implications. We’re going to be talking to one of the lawyers who has been litigating in the extra legal, extra constitutional spaces created by this war on terror. Later on in the show, Slate Plus members will get to join Mark Joseph Stern and myself for a conversation about the Supreme Court’s latest shadowed docket activities and what to make of the court’s decision to take up a case involving religious freedom in the execution chamber. That segment is accessible only to Slate Plus members, and as ever, we thank you for supporting the show and the journalism we do. But first, 911 changed the way that we think about absolutely everything deemed the most egregious act of international terror. It killed almost 3000 people and changed the way America thought about Muslims, about terrorism, about the Middle East, but also how we started to think about domestic surveillance, personal privacy, indefinite detention, policing and, yes, torture. It changed the way we started to think about America’s role in policing the world and the way that we think about these things now changed the way America actually does things. Questions about civil liberty, about nation building, the whole idea of enemy combatants in a war on terror shifted these axes long after we stopped debating questions about waterboarding or the Patriot Act that was passed two months after 9-11 or the creation of ICE and military tribunals. Those things became the very fabric of the modern world of American policing, law and detention. My guest today is Baher Azmy. He’s the legal director of the Center for Constitutional Rights, and he’s been challenging the U.S. government repeatedly over the past 20 years, litigating matters from the rights of GITMO detainees to discriminatory policing practices, government surveillance, the rights of asylum seekers and accountability for victims of torture. Baher is currently on leave from his faculty position at Seton Hall University School of Law, where he taught constitutional law and directed their civil rights and Constitutional Litigation Clinic. If we are in a forever war, I think of Baher as one of the forever lawyers. The guy who’s still there and who will turn the lights off on this war if it ever ends. His article is in a collection entitled Crisis Lawyering that was published this spring by NYU Press. It’s called Guantanamo 20 years of lawyering in a lawless space. Baher in many, many ways. You are just still litigating the cases America has forgotten and still lingering the iterations of them that plague us still. Welcome to Amicus.
S2: Thank you, Dahlia. It’s so good to be in conversation with someone as thoughtful and reflective as you on this, really. I feel like a solemn day. I think we’re going to talk about some dark and depressing things about the government response and the evisceration of rights and the sort of reverence and seepage and expansion of the war on terror paradigm. But I do find myself today. I don’t know how you’re feeling, just feeling really, really somber about the day, about that horrible day and my feelings of fear and anxiety, and just wanted to acknowledge that before we transition into, you know, the exploitation of that fear and anxiety into total security state.
S1: And I think you’re exactly right. Except I might say this, I have a layer over the somberness and the worry of real kind of embarrassment and a little bit of almost frustration. With myself, because everything I just talked about, everything we’re going to talk about, whether it’s ice or military tribunals or surveillance or torture, those are things I used to write about every week when you were when you were litigating them. And in a lot of ways, I’ve had the luxury of doing what I suspect a lot of our listeners have done, which is just put it aside, you know, I’m not fighting the torture fight anymore. You are. I’m not fighting the fight about provisions of the Patriot Act that I used to rail against. You are. And so I think there’s a weird way in which I’m I’m sitting here as a proxy for all the folks who think that that stuff is over and that maybe there is just very, very, very fine grained connections. What you’re calling seepage. But the fact is, none of that stuff is over. We know it’s not over because it’s still your bread and butter. And so I think that might be the difference between your somberness and mine. Is that being in conversation with you always reminds me how much we left on the table and didn’t resolve.
S2: Yeah, big, big sigh and our cheer and Baher.
S1: I want to ask you, maybe the one personal question that maybe will help me think about how you think about this, which is you’re a Muslim guy on 911. Maybe talk a little tiny bit about even if you don’t mind sort of how you personally thought about it in the first days and hours after 911 about how this was being framed in a conversation about Muslims and othering. Because I feel as though laced through so much of what you write and say is this kind of feeling that that you are straddling those two worlds?
S2: Yeah, that’s as a Egyptian born Muslim raised the United States and a sort of constitutional, progressive constitutional law professor who, you know at the time believed deeply in certain legal institutions and the possibility of rights. I have been straddling that. And at the time, I was scared like most Muslims were, you know, appalled by the and horrified by the attacks, deeply alienated by the idea that this could be done in the name of a religion that I associate with deep kindness and family and tradition. You know, I would note that my my my father had never really heard the term jihad outside of the normal, conversational personal notion of jihad struggle to, you know, to fast and to be good and to pray. And it was for that first time he saw that noticed that term being politicized, which shows, you know, personally how alienated we were from that version of politicized Islam.
S1: Can you talk a little bit about CCR? What what is it that allowed you all to pivot so quickly after 9-11 and start filing just what we all thought were audacious lawsuits as early as, you know, February of 2002, just after the attacks when everybody was saying, maybe we just have to get this done, whatever that takes?
S2: Yeah, I’ll talk about. So I actually wasn’t at CCR at the time, but know the story well, that as it was by our estimable former legal director and president Michael Ratner, who passed five passed away five years ago. And I think, you know, CCR is a political organization as much as a legal organization and understands the intersection between war and creeping authoritarianism. CCR challenged a number of wars before, but in this case, new. A challenge to the commencement of war in Afghanistan would be futile but recognized on the landscape. Some of the, I guess, predictable responses. So on the one hand, Muslim men were being rounded up all over New York and New Jersey and secret and away in federal detention. And as we later learned after filing suit brutalized, held and max sort of solitary confinement, administrative segregation until they were affirmatively cleared of terrorism charges. Flipping the presumption of of innocence. And then, you know, we’re going to come back to this theme. I think a lot the interplay between external and domestic manifestations. So that’s one domestic manifestation. But then, you know, sort of quickly noticed. In November 2003, Bush signed military order number one, which was to create military tribunals in Guantanamo. And Michael Ratner knew right away that was. Very dangerous and mobilize the team, including Joe Margulies of Cornell and Clive Stafford Smith, these are no death penalty lawyers and knew that they had the challenge this hopeless as it was, and they filed the first habeas petition, I think, early February 2002, on behalf of Guantanamo detainees knowing full well, the four months after 9-11, it didn’t stand a chance. But I think the attitude of someone like Michael and Joe was one. There has to be some kind of humanitarian intervention, some sort of intervention between humans and state violence and a principle. Of course, we had no idea who our clients were of skepticism towards the government’s claims that these were all hardened terrorists, the worst of the worst and therefore can be cut off from any access to law. So those were the early cases in 2002. And then, you know, as the what I call the Bush administration’s human rights crisis developed involving torture, extraordinary rendition, CCR and then other organizations as well, of course, developed a community of, I think, legal resistance to these policies and a search for accountability, which, as you observe, we’re still doing 20 years hence.
S1: And can you just for our listeners who don’t know exactly what happened in Roswell, can you just quickly, quickly spell out the litigation as it played out at the Supreme Court?
S2: Yeah. So the the the habeas petition was filed in 2002 on behalf of a number of British and Australian detainees who happened to learn that their sons were in Guantanamo from their home countries and who reached out to CCR. And also, a case was filed on behalf of Kuwaitis by the law firm Sherman and Sterling, who deserve credit for waiting in us, as you know, a corporate law firm into the space. And it basically said that Guantanamo I mean, the government’s position was that these were foreign nationals held on foreign soil and so no access to habeas corpus. And more fundamentally, what the government was trying to do. This is, you know, what I call the authoritarian logic of Guantanamo was to create a prison beyond the law so they can conduct endless, brutal interrogations. Guantanamo never about guilt or innocence or even punishment. It was a place to inflict maximal, in the CIA’s words, dependent stability and dread forms of learned helplessness, so they become totally dependent on their interrogators. And central to that is to have a closed system that would not permit lawyers to come inside of it. That was their M.O., and they had some precedent on their side. But precedents always distinguishable as we were able to do World War to present what wasn’t distinguishable in 2002 was the political climate that got the cases quickly dismissed. But by 2004 there were. Look, the Bush administration had invaded their claims to executive authority seemed arguably arrogant. Their positions were maximalist. And, you know, I think something else happened, which is the day a week later, after an argument in a companion case enemy combatant case, CBS News broke the story with pictures from Abu Ghraib, and they did so on. I think the day Justice Ginsburg asked the solicitor general, Well, what is this claim mean? The total market maximum executive authority is mean the president can afford to torture. And Clement answered, We don’t torture. And so that’s precisely, I think, the prediction that the original lawyers had the dark things happen and bad things happened in dark places. And so we have to open it up. And the Supreme Court said detainees would have a right to access habeas corpus, at least the habeas corpus statute, and that’s when we started identifying additional detainees. And one thing that I think CCR did that was really wise and I wasn’t therefore mistaken. I can credit them as Michael and others kind of democratized, the representation of detainees sort of spread out a collection of hundreds of lawyers representing all hundred seven hundred and seventy nine in what one commentator called the greatest mass defense effort in history and mobilized. And this was very important to the effort to destabilize. Guantanamo mobilized hundreds of lawyers, including mainstream lawyers, Brotman bankruptcy lawyers from Boston, among them military officers, human rights organizations. And you know, the fight to ultimately get detainees access to a court hearing would take a lot longer. But that the idea that we could open up Guantanamo to the outside world, I think. At least in theory, spelled the death knell for all of the lies and myth making the administration was using to prop up Guantanamo.
S1: You were again, I’m just peeling from some of your writing the third civilian lawyer to set foot in Guantanamo, and that was October 2004. I think after the Supreme Court’s decision in Roswell. Mm-Hmm. And you went on to represent Murat Kurnaz, who is being detained there. Do you mind just giving us the sort of cliff notes maybe version of, I know, an incredibly long relationship that you had with him, how you advocated for him? How did you even learn about him, how he became? I think a metaphor, at least for you, about what indefinite detention would mean.
S2: So after the Rasoul decision came down in June 2004, CCR and others started identifying additional detainees who have been touch with CCR, who needed lawyers on one lawyer I’d worked with on other prisoners rights matter in New Jersey asked me if I wanted to represent this individual one individual Moroccan cause I knew nothing about him. I had a conversation with his mother and she was understandably anxious. And then, you know, had to get security clearances to to to go down to Guantanamo. We’ll share one anecdote as part of the security clearance some retired FBI agent with these incredibly meaty hands that I imagine may be throttled. Some East Germans back in the day started asking me about my family members, and I, you know, I started telling him the names of my uncles, you know, Mamdouh Saeed and Ahmed Mohammed. And I was just rattling off names of all of these detainees that I knew weren’t Guantanamo. And he seemed so puzzled and almost disturbed by that. And there was this, you know, moment of mirroring. So I went down, I knew almost nothing about him. I know I brought a German translator because the mother said he didn’t speak any English and then the guard after showing me a security image. Blurry security image video I think was designed to make me nervous, as all those grainy images do said he doesn’t need one. He had learned English. So I entered a room with a handwritten note from his mother and that was written in Turkish that I still remember was very simple You will be visited by an American lawyer you can trust. We have been vacationing in Turkey. Your brothers go to school. We saw his ex-wife and she is loving you. And I just saw the sort of look on his face transform a little bit like like a crack in the matrix. And we talked, we got along really well. The only rights detainees seem to have was a right for their lawyers to bring them food. So he had coffee from McDonald’s for the first time. Later, they would open a Starbucks on. In Guantanamo and just a little piece of absurdist American consumers trivia, Murat preferred McDonald’s to Starbucks. As it turns out, I’m not sure I can get him an advertising gig. But for those of you interested in coffee dynamics. And so when we got back, when I got back to the United States, it was very hard leaving him the first time. We finally learned the reasons that the government offered for his detention and the primary one we have. They have these combatant status review tribunals. These were administrative show trials that they were going to say, satisfied the mandate of refusal and gave them adequate process. But you know, these were out of law and into the domain of literature. Just preposterous. You know, you were presumed an enemy combatant and without a lawyer and having been in Guantanamo, you had to disprove your enemy combatant status when in the majority of cases that I make them out and stress was based on classified evidence. In his case, they said his friend from Germany was a suicide bomber and committed a suicide bombing, although they misspelled that. We’re ready. We ultimately figured out in Istanbul and a synagogue, Murat said. Oh, he did that. I do not need a friend like that. I did not know. So, you know, putting aside the astonishing legal proposition that someone can spend the rest of their life in detention because of the unknown and unknowable. Look, this happened in 2003, when Iraq was incommunicado in Guantanamo. Put that astonishing proposition aside, it was just made up, you know, within 24 hours, we’re on the phone with Biljon and had an affidavit for him saying, Hi, I’m alive, but just totally made up. And at the same time, he no one shared the classified file, which I ultimately made public that showed the U.S. had been convinced that he was innocent and the Germans as well. Nevertheless, he spent five more years there and we became very close as a lot of lawyers had with their clients. He was my I was his only connection to the outside world to learn about his family, to learn about politics, to the extent that we could talk about it. He had a rapid ripping sense of humor that was so delightful, but also this very rooted faith in Islam that got him through this. I think, you know, one advantage I think some of these prisoners had is praying five times a day helps break up the monotony to some extent. Although also in this classified file and true to the authoritarian thinking in Guantanamo, I recently looked back on it while writing a brief despite all the exculpatory evidence. One lieutenant deemed him in his file dangerous because a he asked about the height of a basketball hoop, presumably as a plot to escape Guantanamo. And second, he prayed during the national anthem as if we expect someone we hope we hold as an enemy should abide by, you know, our calling to national greatness. He was released in 2006. I was there for the reunion with him and his family, which was remarkable and I was there for his wedding. And it’s been a while since I’ve been in touch, but he’s thriving.
S1: That’s a tragic but ultimately kind of a happy story about someone who’s eventually released and reunited with his family. But I feel like we can’t really leave this conversation without talking, at least for a moment about Abu Zubaydah, who you defended no longer defend, but defended for over a decade. He’s the subject of torture, unlawful detention, unlawful questioning, and he’s still there. The number 40 guy at GITMO. What does that leave us to think about the project of the 40 people still left behind at Guantanamo?
S2: There were other phases of indefinite detention previously. I would say it was Adnan Latif who had been cleared for release and after pleas to the Supreme Court to please take his case and undo the damage that the D.C. Circuit had been doing to the subsequent Guantanamo case. The Boumediene case, when the D.C. circuit, which was far to the right of the Supreme Court at the same time, was just destroying habeas begged Supreme Court to take his case, let his case. He’s been cleared for release. Supreme Court passed and two months later, Abdullatif took his life. He used to be the face of indefinite detention. Now I think it is someone like Abu Zubaydah who was at the intersection of so many pieces of the war on terror. Apprehended in a in Pakistan, flown to Thailand, where there was initial interrogation by the FBI by Ali Soufan, who suggested he was making some progress and got some major leads from Abu Zubaydah. Nevertheless, civilians in D.C. thought we needed to do more. And then he became one of the first victims of the systematic program of torture and dehumanization and brutalization through waterboarding, all sorts of physical violence and then sent to European black sites for more torture, interrogation and after 2006 decision in Hamdan that basically said the Geneva Conventions prohibit this kind of brutalization brought to Guantanamo. And he is the iconic face of indefinite detention now because there are some people who are cleared for release who in theory the government should be working on returning there. Some people were slated for military commissions, so they will be tried, although we can talk about why that probably won’t happen. And then some who Obama said, were not enough evidence to try but too dangerous to release. You know, in our opinion, that’s in a place that believes in due process that should be a null set, should only be prosecuted based on what you’ve done, not on predictions of how black your soul is based on, you know, some expert prognostication about return to the fight, but nevertheless, he is in that category. But ultimately, I think this is about keeping him secret. He has a lot of stories to tell, some of which have gotten out through his drawings. But it is hard to know what the government would ultimately do with Abu Zubaydah after what they have done to Abu Zubaydah.
S1: And this is one of your through line places, right where, you know, in addition to normalizing and becoming complacent, I think these things grow and expand and take different forms. And I’m guessing you would say so much of the conversation now that we’re hearing, even in the last few weeks around leaving Afghanistan has that same through line of, you know, oh well, mistakes were made, human life was lost, we learned. And yet again, no sense of real stocktaking, no sense of real accountability. This must feel awfully resonant for you after what you just talked about in terms of GITMO.
S2: Yeah, I mean, that’s sort of it’s really good. Good could point the sort of oops. We did our best to describe calamitous war making total distortions of American institutions that really, yeah, have become normalized. I think only through this bizarre filter of American exceptionalism, you know, that makes us ignore, you know, the genocide of Native Americans and, you know, minimize the violence of slavery that we just have this immense capacity to put our outrages behind us. And I think there are consequences. I mean, I don’t want to overturn an overzealous, but I do think there’s a through line between this these forms of soft authoritarianism and the hard, authoritarian and Trump. I mean, when we tortured people, I mean, 30 years ago, we would have thought we America wouldn’t do that. We systematically did it. We rationalized that through high level, you know, legal counsel, albeit fraudulent lawyering. And no one was held accountable. The sort of the outrages go totally unpunished or unreconciled, and so they become normal. And we just get inoculated to one absurdity and one governmental abuse after another.
S1: And maybe I don’t want to overstate what you’re saying, but it does feel a little bit as though part of the trick here is if it comes in a different bottle wearing a different cloak in a different iteration, then it’s easy not just to say, Well, that thing, you know, we don’t torture people anymore without seeing all of what comes after it, the iterations that follow, but also to sort of tell an American exceptionalist story about how we’re learning and getting better.
S2: Yes, right. We won’t do it again. But of course, right, as you’re saying, it’ll it’ll come up in a different garb. I mean, so maybe we stop formally torturing. But at the southern border, we separated parents from babies, an alternative form of torture designed to maximize cruelty. I tried to explain it to a German friend of mine who I knew and said, but I don’t understand this is Gestapo. So yeah, and I think, you know, there’s there’s I mean, another throughline that seems to me is sort of posit a vision of freedom through these past wars. And certainly Trump embraces this. It’s almost like a Jacksonian Andrew Jacksonian vision of freedom where ours is increased the repression of others. So, you know, there’s a little bit of added service born. The cruelty is the point. It’s the sort of maximized cruelty shock and awe. What Muneer Ahmad calls the iconography of terror of showing, you know, subdued and cloaked Guantanamo detainees tied together. We’re winning, so you are free. And by the way, they hate us for our freedom, which I still can’t quite figure out how to unwrap from some massive flag of narcissism. And yeah, and I think Trump has sort of taken that mantle and said, you know, we deserve to inflict cruelty and other people, and we will feel better about ourselves. Some of us will when we do that, but that started before him.
S1: I’ve seen you use the word narrative scaffolding to describe. In this case, it’s in reference to this legal category enemy combatant. But it’s kind of about the stories we tell. And I think what you’ve just done is some a couple of versions of that, you know, stories we tell about what is required to be done to others to make ourselves free, right? What what we do when something is so exigent and so dangerous that what we have to do is be cruel and that should be something that a patriot has no problem with. And I wonder if if another place where we just had a lot of narrative scaffolding created by, you know, the bush interventions after 9-11 just have to do with claims about presidential power and presidential authority over war making and a very, very again kind of cartoonish story we tell about the president cowboy who saves us all. And you don’t want to know what’s on that wall, but I’m going to take care of it. And that also blossoms again wearing different cloaks and culminating in Trump, you know, wanting to build a wall and separate families. But that’s another place that we just fell asleep at the switch and said, You know, we we want our president to be that guy, right?
S2: And this this old, you know, the resistance to the abstract civil libertarian objection of presidential authority, which, you know, which is it may look OK now, but it’s going to get bigger and someone else is going to come and use it in dangerous ways that everyone will agree is dangerous. And that’s certainly what happened. I’ve been thinking about so much of the Trump illegality and assertion of executive power. I mean, it was really we’re kind of accustomed to it by the Bush administration who tried to bypass Congress around surveillance and around detention. And there is the the vesting in one person, you know, kind of total authority in Congress goes along with it and we’re all for the worst. And you know, I think the other narrative part of the narrative scaffolding is this notion of that. The Bush administration created this everywhere existential Muslim menace that’s not defined by country. It is global, it is internal, it is everywhere. This undifferentiated thing you have to be afraid of and where the whole Muslim world is a battlefield. You know, I think contributes to a demand that we fortify the homeland, not just against Muslims, but the next undifferentiated enemy. And it’s not. It wasn’t hard from for Trump to pivot from Muslim terrorists to Mexican criminal and back and forth. It’s just it’s fluid for him. But that scaffolding was erected before he gotten into to office. And, you know, I guess incubated by Obama at a lower temperature.
S1: And I want to say you’ve been as brutal a critic of Obama on some of these issues as you have been toward Bush or Trump. The one other piece of this that I just want you to riff on for a minute because I think again, it formed the spine of so much of my writing and thinking at the time. And now I think, as with everything else we’re talking about, it’s really been cooked into the soup. And that is just this again, in interstitial space that isn’t law. It isn’t, you know, warfare, international relations. It’s not a crime. It’s this other thing that that got constructed. We can fight about whether 911 amplifies and accelerates it or creates it. But that thing that you’re describing, that lawless space that lives in the midst of those things, we’re not talking about criminal law. We’re not talking about international military law. We’re not talking about the mafia. We’re talking about a thing that is nothing and everything that happens to right.
S2: Oh, wow. I love that. Yeah, I don’t. That’s exactly right. We’re sort of trying to get our hands around this thing that is impossible to grasp because it’s huge. It’s slippery, it morphs. And so it’s it’s it’s everything. And as you say, nothing at the same time because it’s undefinable. You know, I’ve been asked a couple of times about, so what is the end of the war in Afghanistan? I mean, does that mean that detentions and Guantanamo should end in theory? But it reminded me of your point that this is all malleable. Gosh, that’s not accountable to actual legal principles. I mean, the government will argue. Sure, the war is over. And sure, we argued in Hamdi and 2004 that you can detain people to prevent them from going back to the battlefield. But the battlefield is now global, and we cannot detain not only people who are from Afghanistan, but who might be affiliated with some global al Qaeda network and al Qaida might re-establish itself. It’s it’s just totally meaningless and made up their suggestion about where their power starts and where it ends. And I guess their conception of power really doesn’t, doesn’t particularly end and just, you know. Had. It’s it is it is bananas to hear the government say, you know, 54 year many person with diabetes and bad knees needs to be held another five years. Otherwise, he might go back to the fight. What fight? It’s been 20 years. It’s just, yeah, it’s it’s it. It’s hard won. Some of the rules are made up
S1: and I guess. Part of what I and I know you don’t purport to be, you know, global affairs specialist, but it does also, I think, figure somewhere in here that some of the radicalization that happens post-Afghanistan post-Iraq post ISIS is in reaction to the things that were done and the lack of accountability. So whether or not you’re 54 year old Yemeni is going back to the fate, it is certainly the case that we live in a world that has been radicalized by not just some of the things that happened in the wake of 9-11, but the reaction to the lawlessness from a country that you know you open. With this, you always believed to be a beacon of rule of law and democracy.
S2: Yeah, I just yeah, I wonder if Americans have any sense of how we’re perceived abroad. I mean, a paradox that Morata always raised us strikes me is kind of messing with the, you know, the Obama administration, for example, and Bush to say, you know, we can’t release this person to Yemen because there’s an al Qaeda crisis there. I mean, this is the most powerful military on the order of one hundredth in human history. And we’re worried about that and not the constant din of drone strikes that are, you know, terrorizing people in Pakistan and Yemen. That’s war. It’s just it’s just kind of remarkable the level of fear at that granular level that seems so disconnected to reality. So, you know, portraying institutions because some infinitesimal risk is just so distorted
S1: and Baher you started to go down this road and I think didn’t get to quite. Say what you wanted to say, but I think you’re also saying that this has an effect on Muslim Americans, this has an effect on how, you know, I’m remembering President Bush going to a mosque in D.C. calling Americans not to single out Muslim Americans. And then we just slide almost inexorably. As as as you just pointed out into the Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. Those are also connected, in your view, right?
S2: Yeah. Even Bush’s term. So he you know, he did the right thing, which was sort of visit patriotic Muslims showing their patriotism and calling us not on let’s not to discriminate. That’s fine. But he also referenced, you know, this global Islamic network as evildoers, you know, and did what he he did, not just what he said. And so Trump takes that soft authoritarianism and says, Oh, you said you were going to get rid of this threat, but you obviously didn’t do enough. Leave it to me. So having created this enemy, Muslim enemy, leave it to me to finish the job. And that’s you know what he tried on whatever day seven of his presidency to exclude all Muslims from America. And then I guess this attention moved on. But yes, it definitely, I think, created a pathway for that. And you know, there are some other geopolitics, of course, as well. Like, you can’t deny the impact of the intervening, but the the perceived threat or insecurity of having the intervening black president with Hussein as a middle name to stoke paranoia and of public life. So it’s not all attributable to Bush. It’s, you know, sort of deeply melded with American culture and and xenophobia and racism and all of those things that are deeply melded in American culture.
S1: So this gives me a nice place to pivot to another thing that’s deeply melded into American culture. Having you’ve just done some good advertising for McDonald’s, but I do think that the private sector runs with so many parts of this as well, and this must inflect the way you think about domestic policing now, you know, the militarization of American police forces, you know, $1.6 billion of Pentagon money of Pentagon money goes to arm local police departments with military equipment and then the private sector. As I flicked at up top, you know, getting involved in the use of data surveillance and analytics just to keep consumer prerogatives at the top. So so I want to just give you a minute to reflect on, you know, you’ve talked a lot about the sort of exceptionalism and patriotism in the ways we think about ourselves as separate from what came before. But boy, does the private sector ever lurch into the space here too?
S2: Yeah. The influence of sort of private military contractors who, you know, I mean, so much of the Afghan war was outsourced to them. We have lawsuits against some were involved in torture in Abu Ghraib and the sort of constant production through, you know, billion dollar markets of more and more surveillance capacities as we’re militarizing the border, arming police, as you say, is really scary. And by the way, these contracts, I know in the cases are, you know, trying to get the kind of an an erik prince you envision trying to get kind of immunity from the kind of obtain the same immunity that the sovereign has so that they will be free to fight wars in the future without without accountability. But the police militarization point, I think, is also incredibly important. I mean, just look at the SWAT teams that descend in every municipal police force post Floyd or remember in Ferguson. And so certainly and you know, I’m not a total expert on this, but certainly pre-9 11 major metropolitan areas had SWAT teams. And because of the war on drugs, we shouldn’t forget that as we’re, you know, but I don’t think it was in that level in Peoria and Ferguson. And to solve this terrorist narrative and the surplus military equipment was to. So that like that summer Portland, you know, was that Portland or Fallujah? You know, and I think there are real co-dependency between external fighting and counterinsurgency and police mechanisms domestically. And given the lionized fashion of police forces, I mean, I think the police unions in New York want to be treated like the military in terms of reverence for them, in terms of democratic, on accountability and in terms of political and financial support. And I find that terrifying.
S1: I want to give you a minute to talk about accountability, because, you know, right now we’re having a fight, although I think the fight is is been litigated and lost about the fact that no one in the Trump administration has been held to account for any of some of the most horrible practices, including family separation, that there was this decision taken to, you know, draw a line and move on and not divide the country. And I’m kind of smiling as I ask you this, because of course, the example we all use is your example when we talk about this and we say, well, there was no accountability for the black sites and no accountability for torture and no accountability for mass surveillance. What is it? What is the answer to the question? Oh, but you know, what you’re doing is politicizing this. You know, you’re trying to somehow benefit from still fighting this war 20 years after and not letting go and not just saying, Oh, Guantanamo, you’re silly. There’s only thirty nine people there. I feel like you, more than anyone, has a right to explain to us what the consequences of a world of no accountability really looks like in the long term.
S2: Yeah, I think it looks. It looks a lot like how we’ve already described it. Absence of accountability for Bush administration officials makes it impossible to imagine a proceeding that would hold Trump officials accountable for lawlessness. And you know, I actually I want to maybe I can sort of open the lens a little bit and try and understand what about the absence of accountability except for, let’s say, street crime or drugs is so endemic in America? You know, we talked about research and the way that we litigated Russell in 2004 was not to put terrorist suspects against the the rights of terror suspects against national security. It was a story about kind of exceptionalism. But Guantanamo was an illegitimate experiment. America had lost its way. It was exceptional. And, you know, 20 years hence, you have to ask ourselves, Is it really exceptional or is it at the sort of the core of American styles of jurisprudence and accountability? Think about the massive carceral state, the laws around the death penalty and how impenetrable it is. Qualified immunity and all sorts of immunity doctrines. It’s sort of lurching towards authoritarianism and power in authority. That is scary in the abstract, but it’s also, I think, particularly worrying. And that always manifests itself in brutalizing and targeting and controlling minority communities black and brown and Muslim communities because there is still exceptionalism bound with that lack of accountability and people in power or typically, you know, white men don’t want to be held accountable.
S1: That’s such an incredibly granular pulling at a whole bunch of threads in this conversation that I hadn’t even quite thought about, and I’m really thankful for the for the sober answer. I do feel like I started by saying, you know, you’ve been pretty tough on the Obama administration. I think you have a lot of asks of the Biden administration. I’m thinking now about Obama in his presidency when he was being asked about hunger strikers at Guantanamo who are being fed by tubes and. And he articulated, you know, again, this idea of, you know, this is not who we are, this is not who we are. We keep hearing. And we heard it again after the January six, the tax. This is not who we are. And again, I feel like there are very few people in a better position on this 20th anniversary of 911 because you’re still working, still work in the the the original sins of it through radical lawyering. Who are we?
S2: This is who we are. We are at the same time, a country that elects the first black president, an incredibly impressive human being with soaring vision for what is possible. We are that and we are also a country. That brutalizes prisoners and detainees and and maybe more to the point where a country that can hold both ideas at the same time. It’s certainly preferencing the noble one while ignoring the scary parts.
S1: Baher Azmy is the legal director of the Center for Constitutional Rights. He’s been challenging the American government repeatedly over the last two decades. Right now, he’s on leave from his faculty position at Seton Hall University School of Law, where he taught constitutional law, directed their civil rights and Constitutional Litigation Clinic. The article I was drawing from today is in a book entitled Crisis Lawyering, published this last year by NYU Press, and his chapter is Guantanamo 20 years of lawyering in a lawless space. I wish we had more time. I feel like there are so many other lawsuits that you are involved in that really speak to this moment, but maybe we could just leave it at saying that. It seems to me that for those of us who are spending today looking back at 911, it really is a valuable, valuable exercise to think not just about where was I, then you know what was on TV then, but to think about what have we become as a consequence of what we’re not looking at? Is that fair?
S2: Oh, it’s beautifully, said Dahlia.
S1: Thank you so, so much for being with us.
S2: My pleasure. It was a really great conversation I enjoyed. Thank you.
S1: So welcome back, we are at the portion of the show where we get to talk for the benefit. We have our secret white extra special listeners to the wonderful and divine Mark Joseph Stern Mark. Welcome back.
S3: Such a pleasure to be here in this invisibility cloak with you, Dahlia.
S1: And at some day mark, we will run out of metaphors for whatever it is that we do here.
S3: I think we did long ago.
S1: Now we’re just like coughing up hairballs every week. Mark, let’s start with kind of a surprising decision this week the Supreme Court declining to take a death penalty case and decide it in the dark of night on the shadow docket kind of a reversal from our usual millennia. Do you want to start there?
S3: Yeah, I think this is the first sensible thing the Supreme Court has done in months or years, so it’s worth talking about. This was yet another case of a incarcerated individual who is religious, in this case a Christian, and he is being executed by the state of Texas, and he wants to have his pastor in the execution chamber with him. He wants the pastor to pray with him and to please her hands on him at the moment of death. This is very important to him spiritually. And as longtime listeners will know, these cases about religious advisers access to the death chamber have thrown the court into chaos for several years now, and they have all so far been resolved through the shadow docket with no single majority opinion. Just a smattering of orders with no reasoning and concurrences and dissents and other dissents to respond to those dissents. And it’s all been madness and chaos, and it’s left the lower courts with absolutely no guidance. It is the quintessential example of why the shadow docket is just bad procedurally because it leaves the law in a state of absolute confusion and uncertainty. And here the Supreme Court did a good thing instead of resolving this case to the shadow docket, like all the others. The court actually took up the case, moved it from the dark into the light, placed it on the merits docket and will hear oral arguments at the beginning of November, will have a full briefing and will issue an opinion on the merits, presumably with a majority that can actually say what the law is here. And honestly, even if the majority ruling is bad, I think it will be a relief to everyone to some degree just to have an answer because these cases have been so inconsistent. That inconsistency has opened up the court to a lot of criticism because it will block the execution of, say, a white Buddhist, but then not block the execution of a black Muslim. The court will seem to favor Christian prisoners over prisoners of other religions, and now we will get a resolution. And so we should just take one moment to say, Hey, the court did something that actually makes sense and we can all circle back to this one. Oral arguments happen. Imagine that oral arguments on November 1st.
S1: Mark, let’s just be clear, because I think you are saying that you see a direct causal relationship between the court making the decision to take this off the shadow docket to list it for argument and a briefing. You really feel that and you have I’m not suggesting you have insider knowledge, but your sense is that the court in some sense made this move to be transparent in response to the fact that the words shadow docket. Well, probably not a secret to Amicus plus listeners certainly exploded into the national discourse a week ago, and your feeling is that the court took such a hit about doing things in the dark of night in unreason, unsigned opinions that this move was in response to that, right?
S3: Yeah. And I think the abortion shadow docket move was the culmination of years of a shadow docket maneuvering that had built up into this totally deranged kind of like single paragraph order, allowing taxes to functionally overturn Roe with, like, totally cryptic and opaque reasoning. And I think probably the court is responding to criticism both from the public over the shadow docket from Congress, which has already held one hearing on the shadow docket and will soon hold another. And also from the liberal justices on the court. We saw Justice Kagan in dissent from that abortion decision, saying, Hey, the shadow docket has grown out of control and this is a prime example of how bad it is and we desperately need to rein it in. So I certainly hope. Hope that this sensible move was responding to all of this criticism, and it may be the beginning of shifting away from doing everything in the dark to returning to regular order.
S1: Mark, I’m glad you brought up SB a lot, a lot of listener questions about the law itself. Last week, we talked with two feminist thinkers about the implications, but I did get a lot of questions from folks who just don’t understand looking at the statute and trying to fathom the lawsuits, how people have standing. How you could be a dental hygienist in Kenosha and you have standing to bring a civil lawsuit against a Lyft driver in Texas. And this question has really plagued people to the point that I think maybe it’s worthy of a one paragraph legal explainer.
S3: Yeah. So briefly, you know, this is a state law passed by a state legislature to be enforced by state courts. And states have very broad leeway to define standing however they want, and are not obligated to latch their own definitions of standing to the federal judiciary’s conception of standing. And that’s what Texas has at least tried to do here, and this is obviously a very negative example of it, right? This is an example of, I think, permissive standing gone totally out of control. Any random stranger, somebody working on a research base in Antarctica can fly to El Paso and file a lawsuit against a stranger they don’t know. I mean, obviously that is bad, but I don’t think that liberals should take away from this. The lesson that permissive standing is always bad because actually, it’s often good for progressives that state courts have more permissive standing rules. And this came into play last term with the Supreme Court’s big decision in Trans Union v. Ramirez, where the Supreme Court said that federal courts could no longer hear this pretty broad range of claims that Congress had tried to establish. When, say, your privacy rights were violated, some company mistreated you or falsely labeled you a criminal on your credit report, for instance, the Supreme Court said, Well, we don’t think that’s a real injury, so you’re not allowed to sue in federal court, but you can still sue in state court because states have broader standing rules. So I don’t want this to be a moment where all liberals say, OK, we’re standing hawks now. You know, we have to be super conservative about this so that we don’t have another SB eight. I think that’s the wrong lesson. I think this is, you know, permissive standing out of control. But States’ leeway to have broader standing is on the whole, a fairly positive thing.
S1: On Thursday, late afternoon, Merrick Garland announced that the Justice Department was suing Texas in federal court, challenging SB eight seeking an injunction. It was sort of twenty seven page, I think, really well, argued well-supported brief. But some of the claims certainly are about the supremacy clause. They are about federalism. What standing does the Justice Department have to sue Texas for a state law?
S3: Yeah. So there’s really two different theories of standing in this lawsuit. The first is a theory that involves the federal government’s own programs within the state of Texas. So the federal government runs these programs, like the Job Corps and then also has, for instance, federal prisons in Texas that are obligated to facilitate or provide abortion care. And under SB, the federal government cannot carry out those duties because if they try, then random Texans can file lawsuits against them. And so there is a very strong claim here of both preemption and what’s called intergovernmental immunity, which basically says that states cannot interfere with the federal government’s own responsibilities. And similarly, states cannot deputize their residents to interfere with the federal government’s duties. That’s a pretty basic sort of Con Law 101 argument, and I think it’s really strong. But, you know, that’s a pretty narrow slice of of people who need abortions in Texas. Most Texans are not working for a federal program or affiliated with one. So the other theory is a little bit creative. But I think on pretty firm ground, the Justice Department is on behalf of the United States suing the actual state of Texas and arguing that Texas has tried to essentially overturn Roe v. Wade, that Texas has intentionally overturned a constitutionally protected right, and that under the supremacy clause, a state can’t do that. A state doesn’t get to just nullify constitutional rights protected by the federal judiciary. So one key benefit here for the Justice Department is that it actually gets to. To Texas, the state’s private citizens, you and me. Abortion providers, regular folks cannot sue states themselves because states have something called sovereign immunity. But when the federal government files a lawsuit, they got this privilege. They get to sue the state. And what the Justice Department is hoping is that it can use that privilege to get around this problem of of who exactly to sue. You know, we had this debate where the abortion provider said, Should we sue the judges? Should we sue the county clerks? Should we sue the people who are going to enforce the law? The Department of Justice gets to say, We’re suing the entire state of Texas and anyone with any connection to the state who intends to or is tasked with enforcing this law. And I think that’s a pretty strong theory. And so do some folks across the political spectrum will board who’s actually the scholar who invented the term. That shadow docket has an excellent analysis of this. If anyone can bring down SB eight at this stage, it’s probably the Justice Department. And I think this is a very strong lawsuit.
S1: Let’s just clarify. This case was filed in federal court in Texas. It is now in the hands of the same federal district judge who was trying to decide SB eight before he was stopped by the 5th Circuit. What happens next?
S3: So presumably this case will proceed on a fairly expedited basis where the judge will hold hearings. The judge will consider a motion for a preliminary injunction and within days or weeks. Probably, the judge will decide if the United States is entitled to an injunction prohibiting the state of Texas from enforcing SB eight in any way. And again, that’s not relief that a private citizen could ask for. And so I guess, you know, abortion providers are just lucky that a Democrat is in the White House and a Democrat is in the Justice Department because if this were a Republican administration, there’s no way the Justice Department would step in here and potentially no one would have standing to challenge this law.
S1: And because I can’t let you go into the weekend, happy mark. Let’s just point out it then ends up going back to the 5th Circuit and the Supreme Court. In other words, the Justice Department is going to end up seeking relief from exactly the same entities that put them in this situation in the first place.
S3: Yes. And, you know, last time around, the 5th Circuit kind of rigged the game by prohibiting this judge from even holding hearings or considering the challenge to SB eight. And so we know the 5th Circuit’s been very aggressive about safeguarding and protecting Texas’s ability to ban abortion. Well, we have no reason to expect that to change. The only question is whether the Supreme Court might step back from the brink in light of the recent backlash and actually restore Roe v. Wade in Texas. Well, it considers another case that it will hear later in this coming term to officially, informally overturn Roe.
S1: Mark Joseph Stern covers the courts and the law, the state Supreme Court’s LGBTQ issues, and so much more for us at Slate. Mark, as always, I feel like you and I have seen a little too much of each other the last two weeks over SB eight, but as always, it is a real treat for our sleepless listeners to get your amazing brain in their earbuds. That’s weird. They’re either brain in your ear, but this is weird. Yeah, you’re in their ear holes. Get get exclusive access to your amazing brain. Thank you, Mark.
S3: Always a pleasure, Dahlia thanks.
S1: And that is a wrap for this episode of Amicus. Thank you so much for listening. Thank you so much for your letters and your questions. You can always keep in touch with us at Amicus, at Slate.com, or you can find us at facebook.com slash Amicus podcast. Thank you. Thank you for your letters and suggestion. They really do help us feel like we’re not just shouting into the void. Today’s show was produced by Sara Burningham. Gabriel Roth is Editorial Director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcast. We’ll be back with another episode of Amicus into Shortly.