Before 9/11, few outsiders even knew of the existence of the Office of Legal Counsel. In the years since, however, it's become the White House's go-to department for contorted, often secret legal "opinions" meant to justify previously questionable or unauthorized executive actions. Notoriously, OLC memos justified "targeted killings" by drone of key figures in terror groups, including an American citizen. Recently, for instance, that office has been used to explain away a number of things, including why a sitting president cannot be indicted (see: former special counsel Robert Mueller) or the granting of absolute immunity to White House officials so they can defy subpoenas to testify before Congress (see: House impeachment hearings). And as any OLC memos can be kept secret, who's to know, for instance, whether or not similar legal memos were written to cover acts like the recent killing of Major General Suleimani?
4. The sidelining and removal of professionals: From its inception, Guanta'namo's supervisors shoved aside any professionals or government officials who stood in their way. Notably, then-Secretary of Defense Donald Rumsfeld appointed individuals to run Guanta'namo who would report directly to him rather than go through any pre-existing chain of command. In that way, he effectively removed those who would contradict his orders or the policies put in place under his command, including, for instance, that prisoners on hunger strikes should be force-fed.
In the Trump era, this dislike of professionals has spread through many agencies and departments of the government. The twist now is that those professionals are often leaving by choice. The State Department, for instance, has dwindled steadily in size since Donald Trump took office, as those disagreeing with administration policies have simply quit or retired in significant numbers. Similarly, at the Pentagon, in a steady drumbeat, officials have resigned or been fired due to policy disagreements.
5. The use of the military for detention operations: In the fall of 2002, General Tommy Franks, the head of U.S. Central Command, complained to Rumsfeld that his troops were being wasted on detainee operations. Hundreds of prisoners had been captured in the invasion of Afghanistan that began in October 2001 and Army personnel were being asked to serve as guards in the detention centers set up at the new American military bases in that country. Though many of those detainees would subsequently be transferred to Guanta'namo, the military was not off the hook. A joint task force of all four of its branches would be deployed to Guanta'namo to serve as guards for the arriving detainees. Some of them insisted that it was not a task they were prepared for, that their previous service as guards at military brigs for service personnel who had broken the law was hardly proper preparation for guarding prisoners from the battlefield. But to no avail.
Today, that military has been deployed in a similar fashion to the southern border in support of detention operations there, a steady presence of more than 5,000 troops since the early days of the Trump presidency, including active-duty military personnel and the National Guard. Under U.S. law, the military is not authorized to carry out domestic law enforcement. A letter from 30 members of Congress to Pentagon Principal Deputy Inspector General Glenn Fine made the point: "The military should have no role in enforcing domestic law, which is why Trump's troop deployment to the southern border risks eroding the laws and norms that have kept the military and domestic law enforcement separate." Fine is now conducting a review of that deployment, but who knows when (or even if) it will see the light of day.
6. Secrecy and the withholding of information: When it came to Guanta'namo, Pentagon officials discussing the number of detainees there would usually offer only approximations, rather than specific number s, just as they would generally not mention the names of the prisoners. Journalists were normally kept from the facility and photographs forbidden. Meanwhile, a blanket of secrecy shrouded the prior treatment of those detainees, many of whom had been subjected to abuse and torture at the black sites where they were held before being transported to Gitmo.
Today, on the border, the policy towards journalists, infamously dubbed "the enemies of the people" by this president, has been distinctly Gitmo-ish. Information has been withheld and efforts have been made to keep both journalists and photographers from border detention camps. Journalistic Freedom of Information Act requests have often been the singular means by which the public has gotten some insight into government border policies. Even members of Congress have been denied access to the detention facilities, while the U.S. Customs and Border Protection Agency has failed to keep records that would enable migrant families to reunite or let any oversight agency accurately determine the number of detainees, particularly children, being held.
In the theater of war, similar secrecy persists. Just this month, for example, the administration refused to present Congress (no less the public) with evidence of its assertion that the Iranian major general it assassinated by drone posed an imminent threat to the United States and its interests.
7. Disregard for international law and treaties: In characterizing the Geneva Convention as "quaint" and "obsolete" as part of its justification for the detention and treatment of prisoners in the war on terror, President George W. Bush's administration began to steadily eat away at Washington's adherence to international treaties and conventions to which it had previously been both a signatory and a principal moral force. What followed, for instance, was a contravention of the Convention Against Torture, both in the CIA's global torture program and in Washington's toleration of the mistreatment of detainees it rendered to other countries.
The lack of respect for treaty obligations and for the sanctity of international cooperation in matters affecting world peace, health, and harmony has only spread in these years with Trump administration decisions to withdraw from agreements and treaties of various sorts. These included: the Paris climate accord, the nuclear agreement with Iran, and Cold War-era nuclear arms treaties with Russia (the Intermediate Nuclear Forces agreement last year and, more recently, the ignoring of warnings from the Russians that there will not be sufficient time to negotiate the renewal of the essential New Start nuclear arms limitation agreement that will lapse in 2021). As a result, the world has become a more dangerous and unpredictable place.
8. Lack of accountability: Although some of the newly legalized policies of the Bush era, including the use of torture, were ended by the Obama administration, there has been no appetite for holding government officials responsible for illegal and unconstitutional conduct. As President Obama so classically put it when it came to taking action to hold individuals accountable for the CIA's torture program, it was time "to look forward as opposed to looking backwards."
Today, Donald Trump and his team expect a similar kind of Gitmo-style impunity for themselves. As he's said many times, "I can do whatever I want as president." The withholding of military aid to Ukraine in an attempt to get information on rival Joe Biden (and his son) is but one example of the license he's taken. A sense of immunity from the law is deeply entrenched in this administration (as the refusal of his key officials to testify before the House of Representatives has shown).
It's worth noting that the House impeachment of the president was a rare step forward when it comes to holding officials accountable for violations of the law in this era (though conviction in the Senate is essentially unimaginable). Whether such accountability will ever take hold in the context of global policy -- in the killing of Suleimani, in the separation of children from their families at the border, or in the context of election interference -- remains to be seen. At the moment, it seems unlikely indeed. After all, we still live in the Guanta'namo era.
The toll of the war on terror in terms of lives and treasure has been well documented. It has cost American taxpayers at least $6.4 trillion (and probably far more than that), while resulting in the deaths of up to 500,000 people, nearly half of whom are estimated to have been civilians (a number that doesn't include indirect deaths from disease, starvation and other war-related causes). Meanwhile, a new Gitmo-ized narrative for the law and national security policy has come into being.
The irony is unmistakable. The Guanta'namo Bay detention facility was purposely established outside the U.S. so that it would not be subject to the country's normal laws and policies. As many warned at the time, the notion that it would remain separate and anomalous was sure to be illusory. And indeed that has proved to be so.
Instead of remaining an offshore anomaly, Guanta'namo has moved incrementally onshore and that is undeniably its indelible legacy.
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