Reign of Terror

by Spencer Ackerman

  Two Office of Legal Counsel attorneys, David Barron and Marty Lederman, relied in part on the Supreme Court’s 2004 decision in U.S. v. Hamdi—ironically, a decision rejecting the indefinite detention of U.S. citizens at Guantanamo—to contend that a trial need not occur before killing a terrorist, citizen or not, who could not reasonably be captured. “ ‘Due process’ and ‘judicial process’ are not one and the same,” Holder would later say, “particularly when it comes to national security.” Neither Barron nor Lederman explained why capturing Awlaki was unfeasible. In fact, Abdulmutallab had told the FBI that it had taken him mere weeks from being a total stranger to becoming a guest sleeping on the second floor of Awlaki’s row house, which he described in detail, down to its possessing “no guards and no surrounding exterior wall.” Much as Abdulmutallab’s testimony was all the proof necessary to consign Awlaki to death, the CIA’s testimony was all the proof needed that Awlaki could not be apprehended, just as in 2002, when the agency represented to Yoo that “enhanced interrogation” was necessary. Charlie Savage of The New York Times reported that Barron and Lederman “did not see it as their role to independently reconsider the evidence.” Like Yoo’s torture-memo colleague Jay Bybee, Barron would later be rewarded with a federal judgeship.

  Aided by the ACLU, Awlaki’s father, Nasser, filed a request for an injunction against an impending execution. But the Justice Department, wary of setting a precedent inhibiting the Security State, fought the suit, even to the point of embracing absurd deceits. It argued that Nasser had no right to sue, since the apparatus of state secrecy prevented him from actually knowing the government was targeting Anwar. In keeping with the courts’ typical Forever War posture, Judge John Bates proclaimed himself powerless, despite acknowledging that the “somewhat unsettling” result of his abdication would be to make potential executions of U.S. citizens “judicially unreviewable.” Lamented ACLU attorney Jameel Jaffer, “It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.”

  The drones came for Awlaki in September 2011, incinerating him and his convoy in the northern Yemeni desert when they stopped for breakfast. Another American citizen, Samir Khan, who published an English-language webzine about al-Qaeda’s exhortations to DIY jihad, died with Awlaki. Two weeks later, another U.S. drone fired upon a Shabwah barbecue attended by Awlaki’s sixteen-year-old son, Abdulrahman, and seventeen-year-old nephew, Ahmed. Obama later called it an accident. When their grandfather again sought justice, federal judge Rosemary Collyer—who, like Bates, was a FISA Court veteran—pronounced that holding Obama’s subordinates accountable for “conducting war” was untenable. The Sustainable War on Terror presented itself as upholding the rule of law. Now it established the precedent that circumstances could permit the extrajudicial execution of American citizens. The loudest objection from anyone with power came not from any liberal but from the Republican senator Rand Paul, Ron’s son, who in protest filibustered Brennan’s elevation to CIA director.

  * * *

  —

  THE SUSTAINABLE WAR ON TERROR departed from Bush’s war in a fundamental respect, but also undermined that departure. For the first time since 9/11, Obama focused the war on al-Qaeda—but with an important exception. In 2011, for a military authorization bill, the administration wrote into law that the enemy would now include al-Qaeda’s “associated forces.” Those forces were never specified in public, permitting the administration to define al-Qaeda as it wished. Obama had intended the law to distinguish the enemy from anything resembling Islam, which he told a Cairo audience in 2009 that America would never be at war against. To the right, it was an alarming decision, one that made Obama’s version of the enemy an even more dangerous euphemism than Bush’s. To those on the receiving end of the war, it was a distinction without a difference. “I do not say drones have only killed civilians. They would have or might have killed some militants,” said Faheem Qureshi. “But overall, they have killed mostly civilians who have nothing to do with what America is trying to do in Pakistan or Afghanistan or anywhere else in the world.”

  To Obama, abandoning a definition of the enemy as specifically Islamic was a matter of basic decency. But the machinery he retained was targeted at Muslims, something elected officials reflexively treated as the responsible thing to do. While Obama shut down the NSEERS Muslim registry that Ashcroft created, he didn’t purge its highly sensitive records about tens of thousands of Muslims. A 2012 DHS inspector general report noted that the data was “transferred automatically to other DHS systems or captured initially in other systems.” That indicated that the administration “condones and intends to continue policies that rely on discriminatory racial profiling,” judged a Penn State Law report. In Cairo, Obama attempted to show that the United States respected the dignity of a religion with 1.8 billion believers. But in the same breath, he told the Muslim world to expect the continuation of the War on Terror, since al-Qaeda’s expansion and agenda “are not opinions to be debated; [but] facts to be dealt with.”

  While Obama built his Sustainable War on Terror, he didn’t like using the gauche phrase “War on Terror.” Typically, when Obama described a military operation, he would name al-Qaeda or the Taliban or other specific adversaries. But when Obama spoke about the broader goals of counterterrorism, he used the term “violent extremists” as its targets. On one level, the nomenclature was another attempt to differentiate terrorism from Islam. But on another, its primary target remained Muslims, and specifically American Muslims.

  Obama’s approach, formalized in 2011, proposed “empower[ing] local partners” and “government-community partnerships” to identify and deradicalize at-risk youth. The American Muslim communities that the Countering Violent Extremism (CVE) program was focused on resented both the euphemism and their treatment, by a progressive administration, as a threat. The primary administrators of these local “partnerships” were federal prosecutors, law enforcement, and homeland security, further alarming those communities. Despite its pledge of applicability to “all forms of violent extremism,” CVE explicitly prioritized “preventing violent extremism and terrorism that is inspired by al-Qa’ida and its affiliates and adherents,” the “preeminent security threats” the U.S. faced.

  Early in the Obama administration, a Department of Homeland Security intelligence analyst learned that certain kinds of domestic terrorism would be functionally protected. Daryl Johnson, in 2009, warned that “rightwing extremist” groups could exploit the economic disaster and “election of the first African-American president” to swell the ranks of white supremacists. Although Johnson was the first to observe the catalytic effect Obama’s presidency would have on white supremacist violence, his was not the first warning. The War on Terror’s studious neglect of white terror had effectively provided networks like Grandpa Millar’s with a reprieve. In 2006 the FBI both noted that white supremacists were infiltrating law enforcement and acknowledged the already existing presence of “law enforcement personnel sympathetic to white supremacist causes.”

  Johnson recognized that the combustible mixture of extant grievances over “appropriate immigration levels” and gun control, as well as the appeal of white supremacy to some Iraq and Afghanistan veterans, could result in outright terrorism. But his paper was broad and speculative. Its umbrella term “rightwing” implicated mainstream conservatism—or at least mainstream conservatism took it that way. Conservative media saw itself as the target and loudly objected. It did not take long for the Obama administration to repudiate Johnson’s warning. Obama’s DHS secretary, Janet Napolitano, quietly dismantled his analytical unit and pledged that DHS would “not ever . . . monitor ideology or political beliefs,” a promise that would have surprised American Muslims. Some people’s fanaticism was too powerful to name, let alone challenge.

  Other people working in the Security State had accepted definitions of the enemy as Islamic, including defining it
as Islam itself. Obama and his Security State allies moved to rid the agencies of them, an action that prompted right-wing backlash against both.

  Obama kept Robert Mueller in charge of the FBI, which continued to infiltrate Muslim communities. The bureau taught its counterterrorism agents that the most sacred texts and traditions of Islam were drivers of terrorism. In March 2011 the FBI’s Quantico training academy featured an elective course from a bureau intelligence analyst, William Gawthrop, that located terrorism within what his lecture slides called “mainstream” Islam. The courses purported to graph a relationship between Islam and violence in contrast to Christianity and Judaism, which Gawthrop asserted inspired peace within the more devout. His “Strategic Themes and Drivers in Islamic Law” lecture concluded, “There may not be a ‘radical’ threat as much as it is simply a normal assertion of the orthodox ideology . . . the strategic themes animating these Islamic values are not fringe; they are main stream [sic].” Another lecture taught agents to “identify the elements of verbal deception in Islam and their impacts on law enforcement.” Gawthrop instructed that not only does Islam prompt Muslims to lie to unbelievers—a federal offense when committed against an FBI agent—but those lies included “shifting the focus away from the ideology” and onto concrete political grievances, like “the Palestinians [or] the perceived U.S.–Israeli axis.” It was a little over a year after Napolitano swore that it was inappropriate for government counterterrorism to monitor ideology or political beliefs.

  To the alarm of some bureau officials, the FBI library was filled with ignorant and Islamophobic books making similar points, including several by Robert Spencer. The FBI intranet, used to help agents research their casework, was filled with material that portrayed Islam as a civilization-ending threat. One posted item said that “Jihad in Action” progressed from “proselytizing” and the “belligerence” of “grievance fabrication” to massacres, persecution of non-Muslims with “Sharia Law [used] as a weapon,” and even “genocide” before reaching “peace.” Two months after offering his course, Gawthrop took his lecturing to an FBI partnership group in New York, where he declared focusing on al-Qaeda a “waste,” since there would always be another jihadist group to take its place. Enduring and effective counterterrorism needed to discredit the fundamental texts of Islam, something Gawthrop rhapsodized would be like the moment Luke Skywalker’s superhuman piloting destroyed the planet-killing Death Star in Star Wars.

  Obama’s horrified White House ordered an embarrassed FBI to get rid of the inflammatory material—it excised about 700 pages of training documents out of 160,000 reviewed—but its sentiments had already spread beyond the bureau. At the Joint Forces Staff College, a military institution educating senior officers from across the services, an army lieutenant colonel, Matthew Dooley, taught that “total war” would be necessary against the Islamic world. Dooley explicitly envisioned “taking war to a civilian population wherever necessary,” including the destruction of the most holy cities in Islam, Mecca and Medina, in the style of “Dresden, Tokyo, Hiroshima [and] Nagasaki.” Victory in this war could be achieved only when Islam “change[d]” or when the United States forced the “self-destruction” of a “barbaric ideology” that comprised the religious beliefs of well over a billion people. If just 10 percent of Muslims believed what their religion instructed, Dooley told the officers in his class, then they faced an army of at least 140 million. “Your oath as a professional soldier forces you to pick a side here,” Dooley continued, encouraging colonels and navy captains to commit war crimes. Student officers gave the “thought-provoking” class a 90 percent approval rating, according to a spokesperson for the college.

  The chairman of the Joint Chiefs of Staff, army general Martin Dempsey, canceled Dooley’s class. Ordering a thorough review of what the military trained about Islam, Dempsey said the course was “totally objectionable, against our values and it wasn’t academically sound.” Unlike Gawthrop, who remained at the FBI, Dooley became unlikely to receive a promotion, the military’s passive-aggressive way of ushering an officer out of the service. But like the FBI’s, Dempsey’s inquiry ultimately exonerated the military by generically declaring that its overall standards were both sound and, for the most part, adhered to. It did not explain the specific “institutional failures” that led to Dooley teaching the course in 2010, or whether the course itself had been offering similar instruction since its 2004 inception. There were possible preludes: reportedly, the head of the anti-Islam ACT for America organization told the college in a 2007 speech that a “practicing Muslim . . . cannot be a loyal citizen of the United States.” In any event, Dempsey’s review didn’t recommend retraining any of the officers in attendance.

  As the war persisted into its second decade, frustration within the security services created a fringe constituency for defining an undefeated enemy in conspiratorially broad terms. Some saw Obama’s refusal to condemn Islam as proof of a betrayal, an attitude characteristic of liberals—and specifically of the first Black president, with his Muslim-sounding middle name. It occurred amid the backdrop of a war the Security State and Obama escalated but could neither win nor end.

  * * *

  —

  FOR DAYS SERGEANT ROB’S* cavalry troop had fruitlessly hunted a Taliban weapons cache in the eastern Afghan province of Paktia. An informant’s tip brought his platoon, the Hooligans, to a crumbling, sun-baked compound in a town called Spin Sarakalat in pursuit of a man named Dawood who, the informant said, was fencing stolen U.S. equipment. Under rules set by President Hamid Karzai, the Hooligans couldn’t enter the kalat without Afghan escorts, so the local police were first through the door. They quickly brought out thirty-three-year-old Dawood Shadikhan, just three years older than Rob, who had been trying to disguise himself in a woman’s flowing orange and red robes. A half dozen elderly women living in the small compound, their faces dotted with blue stipple tattoos arranged into diamonds, followed the soldiers outside, begging them to let Shadikhan go.

  Rob had earlier quieted his soldiers when they complained about bringing along the unreliable Afghan police. A salty, stocky Kansan who liked riding out to Ram Jam’s version of “Black Betty,” Sergeant Rob—that was what his Hooligans called him—said they should suck it up, since unless the Afghans became better soldiers and police, “the mission won’t end.” But now an Afghan cop with a floppy pompadour dyed red was getting too into his job, grabbing a wooden pole and bashing Shadikhan between the shoulder blades. As Shadikhan crumpled to the ground, the women’s wailing swelled. The officer swung around, arcing the pole dangerously close to them, and they sprung back. The eldest among them, tiny and dressed in black, lost her balance, took a nasty fall, and began to cry. The Americans shouted to the cop that it was enough.

  As the Americans began to search Shadikhan and assured the women they meant no disrespect, the red-haired cop slipped into the compound and emerged with its maroon-colored motorcycle between his legs. Grinning at the Americans, he revved its engine.

  The Hooligans’ lieutenant, N. Blaine Cooper, was getting overwhelmed. He needed the Afghan police to take them to the weapons cache, which Shadikhan claimed the Taliban had moved, before nightfall. Technically, Cooper noted, if the women couldn’t document ownership of the motorcycle, the police could impound it. Sergeant Rob quietly but firmly told Cooper that the police weren’t impounding it; Rockabilly Cop was stealing it. “Look at the situation,” Rob told the young officer.

  Cooper, no longer equivocating, yelled to the police that the bike would stay with the women. They indignantly filed back into their trucks and drove off. With no Afghan escort to raid an Afghan home, the Hooligans, with Shadikhan in tow, called it a day. Watching the policemen ride away, Cooper muttered, “If they won’t do it because we won’t let them take a motorcycle . . .” before trailing off, unwilling to follow the implication through. Sergeant Rob had stopped a robbery and saved the women’s motorcycle at the expense of his immedia
te mission and their relationship with the Afghan police. Alpha Cavalry Troop, 1-61 Cavalry would never get its weapons cache. This was what it meant to do the right thing in the Afghanistan war.

  Counterinsurgency, ascendant after the Iraq surge, sometimes dictated that a soldier’s priority was to protect civilians. At other times the priority was to mentor the local security forces, particularly to ward off corruption. At still other times it said a soldier’s priority was to pursue an insurgent and his capabilities relentlessly. Sergeant Rob and the Hooligans found themselves in a circumstance where all three priorities conflicted. It was like that throughout Afghanistan, a Gordian knot of a war. A skeptical Obama, to his ultimate regret, followed the counterinsurgents’ advice. Afghanistan chewed it up and spat it out.

  Joe Biden, once Hamid Karzai’s champion and now Obama’s vice president, contended that the right course was to look past Afghanistan, as the Taliban weren’t the issue; al-Qaeda was, and al-Qaeda’s leadership was in Pakistan. Once they decided the Taliban was their problem, then so were the increasingly uncooperative Karzai and the weak Afghan state. Defining the Afghanistan mission narrowly—waging only as much counterterrorism as necessary while throwing money into building Karzai’s forces—was the only way not to become entrenched more deeply into a destitute, unconquered, and unfamiliar country’s problems, which were made even more intractable by U.S. involvement. At the dawn of 2009, with a Taliban insurgency increasingly effective, Biden informed Karzai that he would have to do more with less, starting with an end to his loud criticisms that the Americans were killing Afghan civilians. Pakistan was “fifty times more important” than Afghanistan, Biden told a seething Karzai.