Too late for accountability

I’ve been involved in some of this century’s most controversial national security and human rights cases involving Americans fighting against government overreach and sometimes lawlessness – cases involving offshore torture, secret mass surveillance, drone strikes on innocent civilians, and the coverup of a friendly-fire death of a U.S. solidier. As a human rights attorney, I’ve seen some of the worst conduct by government employees, military officials, and private contractors – often done under the weighty guise of protecting the country from mythical ticking time bombs. My unfortunate niche is innocent Americans who were mistreated, maimed, or killed in the name of elastic, expansive, nebulous, and incendiary words like “terrorists,” “insider threats,” “enemies within,” “illegals,” and “traitors.” I am a first-hand witness to our nation’s decades-long descent into lawlessness. I know exactly how we got here.

President Obama’s decision to “look forward, not backwards” (an ethos also embraced by predecessors and successors alike) past the architects who carried out and covered up torture and other human rights atrocities paved the way for today’s lawless incursions on people’s fundamental constitutional due process rights and political freedoms. The shocking circumstances of Kilmar Ábrego García’s detention in an El Salvadoran gulag is the logical conclusion stemming from impunity for egregious government conduct.

After 9/11, American John Walker Lindh became the first U.S. prisoner in the Afghanistan war. Photos circulated worldwide of him naked, blindfolded, tied up, and bound to a board with duct tape by his American captors. It was our first glimpse of American-sponsored torture and we didn’t flinch; instead, we vilified Lindh. The few of us who objected to his treatment were disciplined, demoted, fired, or in my case, placed under a pretextual criminal investigation. Lindh’s case was a harbinger of what was to follow in post-9/11 America.

The George W. Bush administration went on to hold upwards of 800 men and boys in the U.S. military prison at the Guantánamo Bay naval base without charge, access to counsel, or judicial review. The Justice Deprtment meanwhile drafted secret internal justifications, later widely dubbed the “torture memos,” authorizing harsh interrogation techniques.

I witnessed cases where the government played word games with the now-abandoned label “enemy combatant” to strip due process rights for U.S. citizens like Jose Padilla and Yaser Hamdi so that their cases could transpire in harsh military tribunals that lacked the protections of civilian criminal courts. That’s why I cringe at Trump bandying about words like “MS-13” and “gang member.” At least back then, the verbal denigration was being done under the president’s war powers. Today, it’s under the power of Donald Trump’s ego and little else.

By 2004, techniques from Gitmo had migrated to CIA-run “black sites,” a clandestine extrajudicial detention network in torture-friendly countries like Afghanistan, Poland, Romania, and Thailand. Detainees were subject to forced nudity, waterboarding, mock executions, genital electroshock, anal rape (euphemistically called “rectal feeding”) and other horrors. Journalists eventually exposed the extent of the torture regime with the Abu Ghraib prisoner abuse scandal in Iraq, featuring hundreds of sadistic photos of naked prisoners stacked in a pyramid, a hooded prisoner with electrodes attached to him, a female soldier leading around an unclothed captive by a dog leash, and far worse.

In 2009, Barack Obama declared an end to secret detention and harsh interrogation, admitting that, “We tortured some folks.” However, he also decided to “look forward, not backward” at the bad actors. No government officials were ever held accountable for designing, approving, or implementing the torture program. The only CIA officer to serve prison time in connection with the torture regime was my client John Kiriakou, blew the whistle on it. The head of the program, “Bloody” Gina Haspel, went on to direct the CIA. The U.S. Senate Intelligence Committee issued a “Torture Report” of over 6,700 pages, but a heavily-redacted “summary” was all that ever reached the public. Obama shut down civil lawsuits with the state secrets privilege, which Trump just invoked to refuse a federal judge information about the deportation of Venezuelan migrants to El Salvador. The worst actors were all promoted, went on to write books, or moved on to better paying gigs with defense contractors or corporations.

None of this dark history made the military think twice about holding U.S. Army whistlelower Chelsea Manning in a hot, dark cage in Kuwait in 2010, and later subjecting her to cruel, inhuman, and degrading treatment that was held to be torture. She suffered regular strip searches and nearly a year in solitary confinement. I was one of a only a handful of human rights attorneys to attend her court-martial and sentencing.

I hoped that during the next decade, the pendulum would swing back from 9/11 overreach and regain some semblance of equipoise. Instead, the U.S. brought more criminal cases against press sources than all previous presidential administrations combined. The defendants were all Americans, with extensive military and/or government service. Even more disturbing, the cases were brought under an antiquated World War I era law called the Espionage Act of 1917. The most disturbing part is that most of the defendants were whistleblowers (not spies or saboteurs) who had exposed government fraud, waste, abuse and illegality. It’s all the more jarring considering that Trump just used an even more ancient wartime authority, the Alien Enemies Act of 1798, to justify the deportations of some 238 Venezuelans to El Salvador a month ago with no due process and against a court order. (The judge just found probable cause to hold the Trump administration in criminal contempt of court for violating that order.)

The U.S. ignored criminal, civil, and humanitarian laws underlying many of the abuses I’ve discussed that occurred before the Ábrego García imbroglio. But once lawyers, journalists, and human rights/civil liberties/accountability organizations exposed the injustices – and judges weighed in to enforce legal and constitutional constraints – the government obeyed court decisions to provide detainees their rights to counsel, due process, judicial review, and habeas corpus relief.

The government ultimately dropped the “enemy combatant” label it had used to create a legal black hole for detainees. By January 2025, only 15 detainees remained at the notorious Gitmo facility, but Trump wants to expand it to detain 30,000 migrants. And now he has expansive executive authority, an enabling Justice Department, a slumbering Congress, and judges whom he is disobeying.

The Supreme Court’s recent grant of presumptive presidential immunity from prosecution for all of a president’s official acts just further insulated unchecked extralegal conduct. Their “middle of the night” 7-2 decision this weekend granting the request in an emergency appeal to block further extradition flights may be too little too late. The same Supreme Court effectively insulated extralegal conduct as long as it has the imprimatur of being “official.”

The Ábrego García case seems to have crossed that line. But instead of line-crossing and then backtracking, Trump is doubling down on lawlessness and enjoying the bubbling constitutional crisis. History will justifiably excoriate the United States for this, whether our democratic republic survives or not.