An expanding war against an expanding collection of enemies came to include the deaths of anonymous people, deaths never acknowledged to relatives and survivors. At least sixty-six children were among those killed just in the tribal regions of Pakistan during Obama’s presidency; more lay dead in Afghanistan, Iraq, Yemen, Somalia, and Libya. To shape how the public understood drone strikes, the CIA invented a euphemism to rival “enhanced interrogation.” They called it targeted killing. Much as enhanced interrogation suggested a superior form of interrogation, “targeted killing” turned a missile strike into a stiletto. During Obama’s second year in office, the drones fired missiles every third day, on average, on a portion of Pakistan roughly equivalent in size to New York City’s surrounding tristate metropolitan area. It was easy to forget that all this had begun to avenge the only air strike that New York had ever suffered.
In March 2011 a tribal jirga council in Datta Khel, Pakistan, assembled to adjudicate an ownership dispute between clans over a chromite mine. The CIA considered the gathering consistent with terrorist patterns and killed forty people in a signature strike, sparking nationwide protest and a rare denunciation by the Pakistani military. A survivor, Ahmed Jan, his abdomen pierced by shrapnel, soon saw America kill his neighbors at bakeries, mosques, and even funerals. “They had to destroy every segment of our life,” Jan said. Life “was miserable,” remembered Kareem Khan, a journalist who compared living under the whine of the drone engines to besiegement by a swarm of bees. His brothers were killed in a December 2009 strike. “Anything evil,” Khan said, “you always find America behind it.”
By the time Faheem Qureshi was twenty-one, he looked forward to owning a business at some point. He had invested in two of his studious nephews the academic dreams he once cultivated for himself. “If there is a list of tyrants in the world, to me, Obama will be put on that list by his drone program,” Faheem reflected.
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EVEN AS OBAMA RULED OUT an abolitionist approach to the War on Terror, in his first year in office he introduced several significant restrictions. Some were definitional, symbolic, or cosmetic, like getting rid of DHS’s color-coded terrorism chart. Others led to an estrangement with the Security State, prompting Obama to accommodate its objections. His most significant restraint concerned torture and detentions.
On his second day in office Obama formally abolished the CIA’s post-9/11 torture apparatus. He overturned the legal decrees underpinning it, banned the agency from exceeding interrogation limits set by the army’s field manual—whose Appendix M loophole nonetheless permits “separation” techniques like isolation and blindfolding—and closed the black site prisons for good. In practice Obama was moving the CIA out of the interrogation business. After a review period, he placed the FBI-led cadre in charge of interrogations of suspected high-ranking terrorists. That decision reflected an assumption that the fate of such a person in custody would now be their prosecution. Seeming to buttress that assumption was a complementary executive order that ordered the closure of Guantanamo Bay in a year, which Obama declared in “the interests of justice.”
John Brennan remained Obama’s most important security adviser. The rare analyst to have served as a chief of one of the CIA’s foreign stations—Riyadh, where he was close with the Saudi regime—Brennan had thrown himself into the War on Terror. A fluent Arabic speaker with extensive Middle East experience, he had been elevated by George W. Bush from George Tenet’s CIA team to the leadership of a new bureaucracy that would evolve into the National Counterterrorism Center, a nexus of threat information. He defended what he called “enhanced interrogation” after leaving the government. Terrorists “don’t play by Marquess of Queensberry rules,” he told PBS in 2006. “Therefore, the U.S. in some areas has to take off the gloves. And I think that’s entirely appropriate.”
Brennan’s defense of brutal interrogations had its limits. Waterboarding, for instance, fit “the classic definition of torture,” he told CBS the following year. It was a noteworthy break from the continued advocates of the practice at Langley and made his entry into the anti-torture Obama camp viable. Doubt among progressives about Brennan’s proximity to torture, most importantly from Salon commentator Glenn Greenwald, cost him the CIA directorship in Obama’s first term. Yet Brennan emerged more powerful, as assistant to the president for counterterrorism and homeland security, which gave him unrestricted access to Obama.
But Brennan’s objections to torture had limits, too. If waterboarding was deemed to be torture, he argued, then prosecutors were in the “very difficult position” of judging whether those “who authorized and actually used this type of procedure may be subject to some type of judicial action.” With such sentiments, Brennan channeled an entire post-9/11 CIA generation unsure if Obama’s election meant they would soon be the ones in cages. They had nothing to fear: the Sustainable War on Terror needed the CIA; an inconspicuous war could not occur without it. Obama didn’t want “extraordinarily talented” CIA officials “to suddenly feel like they’ve got to spend all their time looking over their shoulders.” Those at the CIA who “in good faith” relied on the Office of Legal Counsel’s legal blessings for torture in 2002 and 2005 shouldn’t be prosecuted, his chief of staff, Rahm Emanuel, told ABC News. Those “who devised the policy, [Obama] believes that they were—they should not be prosecuted either.”
Everyone involved in CIA torture—Cheney, Tenet, Mitchell, Jessen, Yoo, on down to the interrogators—was absolved. A United Nations special rapporteur for torture believed forgoing consequences for such activities was not merely bewildering but a violation of American treaty obligations. “The fact that you carried out an order doesn’t relieve you of your responsibility,” he told an Austrian newspaper. Obama’s loyal attorney general, Eric Holder, ultimately opted to empanel a prosecutor, John Durham, to look into CIA torture that surpassed the minimal restrictions the Office of Legal Counsel emplaced. As expected, Durham brought no charges, not even for freezing Gul Rahman to death.
CIA officials intimately involved with the torture program not only escaped legal jeopardy but kept their jobs at the agency, even those in positions of responsibility. Gina Haspel remained, as did Counterterrorism Center analyst Alfreda Frances Bikowsky, who had an innocent man kidnapped for torture based on a mistaken identity and crafted the CIA’s lies to Congress about the program’s efficacy. It ruined the life of a man named Khaled el-Masri, whose sanity fractured in his adopted home of Germany. In one instance, Bikowsky misrepresented a report from the torture of Majid Khan to claim that al-Qaeda was interested in recruiting “any [Muslim] with U.S. status.” A former colleague of hers told NBC News, “She should be put on trial and put in jail for what she has done.” At a higher level was Michael D’Andrea. The profane, chain-smoking D’Andrea, who converted to Islam to marry his wife, captained the drone campaigns in Pakistan, Yemen, and beyond. The Washington Post identified him as the driving force behind signature strikes.
Obama had bet that he could conduct the War on Terror without the politics of fear. The bet failed decisively over Guantanamo. Then Obama made his failure worse by hollowing out the reason to close the jail at all.
By 2008 Guantanamo showed little sign of exciting the conservative imagination. John McCain was for shutting it down—paying no price on the right for that position—as was Bush. All that changed once the Black president made it an issue. In April 2009 Obama planned on resettling in northern Virginia two of seventeen Uighur detainees whom the Bush administration had concluded posed no threat beyond being Chinese separatists. Senate Republican leader Mitch McConnell said Obama was releasing “terrorist-trained detainees onto the streets of a U.S. community” without “a guarantee of safety for American citizens.” Obama, reportedly guided by Emanuel, immediately backed down.
It was a downward spiral from there. McConnell called closing Guantanamo “dangerous.” Obama had neglected to work with his congressiona
l allies on a legislative strategy for the closure. If he expected Democrats to back him on the war as Republicans backed Bush, he misunderstood his party. The renewed smell of the politics of fear in the air made Democrats as timid as they were in the months after 9/11. “I’m not much interested in wasting my energy defending a theoretical program,” the House Appropriations chairman, Democrat Dave Obey, said in early May after cutting $80 million in funding for the closure. The Senate, where Democrats had a supermajority, voted 90–9 to withhold money for closing Guantanamo. Bernie Sanders was among those 90.
There were three reasons that Guantanamo attracted global condemnation: the torture practiced there, the military trials Bush established there, and the indefinite detention without charge that applied to all its detainees who didn’t go before a military tribunal. The 2005 Detainee Treatment Act had constrained the torture, and the Supreme Court’s decision in Boumediene v. Bush had put an end to the tribunals. But in May 2009 Obama acquiesced to indefinite detention without charge. Portraying it as a difficult choice in a speech at the National Archives, the constitutional law professor lamented that some at Guantanamo “cannot be prosecuted”—perhaps evidence in their cases was tainted by torture, for instance—but also “pose a clear danger to the American people,” without revealing the basis for an assessment that could not withstand the scrutiny of a courtroom. By the administration’s closed-door accounting, there were dozens of these people, now known as forever prisoners, consigned to Guantanamo until an endless war concluded.
Ben Rhodes wrote that speech. “I had to defend this, so I was like, ‘What are examples of people that are so dangerous that we can’t release them even if we can’t charge them?’ ” he recalled. “The best I got, and it’s in the speech, is someone was a bomb maker, and somebody had [sworn] an oath to bin Laden. In retrospect, is that really a reason to hold people indefinitely? We released people from Bagram and Iraqi prisons, and the Bush administration released people far more dangerous.”
Obama added that his administration’s preference was to charge Guantanamo detainees in civilian courts on American soil wherever possible. But he undermined himself by deciding that the court’s Boumediene decision would not be the final word on military tribunals. Obama accepted a congressional revision by McCain ally Lindsey Graham and Carl Levin, the Military Commissions Act of 2009, which revived the commissions to provide slightly more detainee rights than the 2006 version the court had struck down. In doing so, however, Obama invited confusion as to why his administration would even bother with criminal prosecutions when it was easier to secure convictions in a military venue. Already the distinctions between those prosecutions had blurred, as Adham Hassoun had learned over the previous four years. They blurred further when the Pentagon’s top lawyer, Jeh Johnson, announced that even if a civilian jury acquitted someone of terrorism charges, “I think we have the authority to continue to detain.” An effort predicated on bringing terrorism detentions in line with the law instead entrenched the wartime state of exception that Obama criticized Bush for creating.
Obama crafted a plan for an alternative to Guantanamo in Illinois. The government would purchase its decommissioned Thomson Correctional Center and move the 241 Guantanamo detainees there. Embittered civil libertarians, watching Obama undermine the rationales for closing Guantanamo, called Thomson “Gitmo North.” Obama treated Guantanamo less as a venue for the state of exception than as “a symbol,” he said, “that helped al-Qaeda recruit terrorists to its cause.” He never explained why Thomson would not acquire that same symbolic value. McConnell adopted the Gitmo North label, arguing, with justification, that “the secure facility in Cuba” already did what Obama envisioned Thomson doing. In early 2010, The New York Times’ Charlie Savage has revealed, Graham pursued with Emanuel a “grand bargain” over detentions that would have delivered the closure of Guantanamo in exchange for entrenching wartime indefinite detentions into a new law, even prioritizing them above criminal prosecutions. Its failure—a bureaucratic death by neglect rather than a decision—embittered Graham, who was already inclined to treat Obama with hostility over Iraq.
The politics of 9/11 were not Obama’s only obstacle. The Security State, especially the military, was unwilling to relinquish Guantanamo. The Pentagon’s head of detentions policy, retired marine colonel Bill Lietzau, had been a deputy of Jim Haynes, Rumsfeld’s top lawyer during the establishment of the Guantanamo torture regime. He worked alongside commanders with operational concerns: If Guantanamo was not an option, what should they do with al-Qaeda captives? When JSOC caught an al-Qaeda suspect at sea between Yemen and Somalia, it ended up placing him for weeks incommunicado aboard the USS Boxer, which JSOC’s commander, Admiral Bill McRaven, considered his best option. McRaven fired a shot across Obama’s bow by telling the Senate that “it would be very helpful” to have somewhere to hold high-level terrorist targets the U.S. was not prepared to prosecute criminally. Conservatives argued, not incorrectly, that Obama perversely incentivized the military and the CIA to kill instead of capture.
As well, Boumediene granted Guantanamo detainees access to federal courts to challenge their detentions. But even as the Justice Department’s formal position was that Guantanamo should be closed, its prosecutors made maximalist arguments that amounted to saying the detainees had the right to a court hearing and no more. Litigation over the habeas cases was tied up for years in the federal courts.
Then came a humiliation. To show he was serious about prosecuting accused terrorists, Holder indicted Khalid Shaikh Mohammed and four others for the 9/11 conspiracy. “It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered,” applauded Mayor Mike Bloomberg. But NYPD commissioner Ray Kelly and downtown real estate interests vociferously opposed the trial as a security inconvenience and an economic headache. Bloomberg, an oligarch who saw New York as a “luxury product” rather than a grieving city in need of closure, reversed himself. KSM and his codefendants would be re-indicted by the military in 2012. Their trial has yet to occur.
The detentions disaster convinced Ben Rhodes that the politics of fear were so entrenched and implacable in 2009 that any more robust Obama effort to roll back the War on Terror was doomed to failure. “Despite him being at his absolute high-water mark—control of the Senate, sixty votes, high approval ratings—there was something just so ingrained in the American psyche and the American political-media culture that he couldn’t even move the Uighurs. The idea that he could’ve, in that environment, tried to end the War on Terror, I think, it would have just been politically impossible.” Yet the argument Obama’s most left-wing aides made for him in 2008 was that he saw, clearly, the need to challenge the politics of fear. Those politics would never change without the sort of confrontation that Obama typically sought to avoid. As commander in chief, the president could in January 2009 have ordered the military to relinquish or resettle any Guantanamo detainees they could not charge and made an affirmative case for why the restoration of the rule of law was worth any violent blowback. Instead Obama chose accommodation: accepting the forever prisoners, military tribunals, and indefinite military detention. His willingness to do so only made his opponents more intractable.
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IN NOVEMBER 2009 an army major, Nidal Malik Hasan, murdered thirteen soldiers and wounded more than thirty at Fort Hood’s Soldier Readiness Processing Center, shouting “Allahu akbar” before opening fire. On Christmas Day, Umar Farouk Abdulmuttalab, the son of a Nigerian banker, using explosives provided by al-Qaeda’s Yemeni affiliate and packed into his underwear, attempted to detonate Northwest Airlines Flight 253 over Detroit. Abdulmutallab succeeded only in mutilating his genitals to the point of evoking his interrogators’ pity. His cooperation after receiving assurances against both physical and legal abuse prompted Obama’s DHS secretary, Janet Napolitano, to judge that “once the incident occurred, the system worked.” She
retracted her assessment after conservative outrage at the FBI’s reading the terrorist his Miranda rights against self-incrimination.
Hasan and Abdulmutallab functionally halted Obama’s Forever War restrictionism. The Sustainable War on Terror was about to cross a constitutional Rubicon.
Within weeks the FBI learned from Abdulmutallab that he had been in extensive contact with Anwar al-Awlaki, the former northern Virginia preacher radicalized by Ashcroft’s 2002 crackdown. According to FBI summaries of his cooperation with his interrogators, which remained classified until 2017, Abdulmutallab was not merely inspired by Awlaki’s jihadist preaching, but said that Awlaki had provided him with spiritual guidance during his breakneck terrorist training, sanctified his selection for martyrdom, and instructed him to wait until he was over U.S. airspace to detonate. Hasan had also emailed Awlaki seeking guidance, but Awlaki hadn’t responded substantively. When Hasan freelanced his murder instead, Awlaki blogged that he was a hero.
Awlaki fled America for Yemen in 2002, but he remained a U.S. surveillance target. In 2005 he released a lecture series called “Constants on the Path of Jihad,” which used religious texts and Islamic history to portray Islam and the West as irreconcilable. The West was “actually fighting Islam in the media and battlefield front,” obliging Western Muslims to “fight them back with the sword” wherever possible. The series was enormously popular, particularly after the U.S. client regime in Yemen imprisoned Awlaki, lending him outlaw credibility. Although Awlaki was a U.S. citizen, the Obama administration and the Security State resolved not to indict him but to kill him.
Obama’s Sustainable War on Terror presented itself as more lawful than Bush’s. That presentation was important to the self-image of the lawyers, from Obama on down, shaping it. Many of them had criticized Bush as lawless and saw their own role as binding counterterrorism within a belt of law. But like Yoo and Ashcroft, the Justice Department under Obama delivered another contorted legal assessment meant to enable the outcome that Obama and the Security State sought. Awlaki’s constitutional right to due process was not an obstacle to his execution.
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