Will Biden and Congress follow it?

In the early days after 9/11, I hoped desperately — alongside so many others around the country and the world — that our government would make wise choices, that it would meet violence with justice, transparency, accountability, and a commitment to fundamental rights. We knew that too often in American history, political leaders respond to traumatic events by clamping down on our civil rights and liberties, and only come to regret it after terrible human costs. And we knew that those costs are borne primarily by Black and Brown people and immigrants, whom the government has always wrongly viewed through a security threat lens.

So that September, 20 years ago, I remember feeling some hope mixed with great trepidation as I listened to President Bush addressing the press after a visit to an Islamic Center in Washington, D.C. “This is a great country,” he said. “It’s a great country because we share the same values of respect and dignity and human worth.”

I’ve thought about that a lot in the years since. Where did that human worth go when our government set up a nationality-based registry for 10 years and tore apart Muslim families and communities? When it tortured detainees and locked them away without charge or trial at Guantánamo? When it passed the Patriot Act and began mass suspicionless surveillance of our private communications? When it wrongly put Americans on watchlists? When it launched forever wars and created a program of secretive, unlawful, unaccountable killing, even outside of war zones in multiple parts of the world?

Together, we resisted many of those abuses. And thanks to the persistent leadership and work of impacted communities, independent media, and rights advocates and allies, some of the worst injustices came to light and ended. We no longer have systemic CIA and military torture or CIA “black sites.” “Special registration” of Muslims here at home was finally and formally dismantled under President Obama in 2016. And the NSA’s collection of virtually every American’s call records ended after Edward Snowden’s 2013 revelations about the scope of government surveillance took our breaths away.

But too many of those abuses are not over. That’s largely because successive presidents invoked extraordinary powers reserved for what should be exceptional — war — and created a legal and policy framework that has resulted in a cascade of human rights and rule of law violations at home and abroad. As a result, our country’s national security policies are grounded in militarization and unlawful lethal force; indefinite detention and unfair trials at the Guantánamo Bay prison; unfair watchlists, and racial, ethnic, and religious profiling here at home; and warrantless surveillance of Americans as well as others.

None of these abuses promote our collective security and fundamental rights. Enough is enough.

20 years later we have another choice to make: We could continue on a path grounded in war-based policies that have destroyed the lives of Brown, Black, and Muslim communities in the United States and multiple parts of the world. Or we could try something new, something that reflects our best aspirations for ourselves and each other: What we need is for our political leaders to invest in our collective security, in racial justice, and in our fundamental rights. We’ve already begun to have these conversations, especially around policing. We must keep going.

The system we have now is corrosive. Think of the Trump administration’s militarized response to the racial justice protests last summer, or its disgraceful “Muslim ban.” Those responses stole directly from the post-9/11 national security script.

President Biden can begin to right the wrongs by ending key policies that hurt us, that have never served our needs, and will not serve our future. We have concrete, achievable paths for his administration and Congress to follow.

The administration needs to end indefinite military detention and unfair trials in order to finally close Guantánamo. Almost 20 years after the prison first opened, 39 Muslim men remain indefinitely detained there. 27 of those men have never even been charged with a crime; in fact, 10 have been cleared for transfer or release, some of them for years. Many of the men are torture survivors, and some were disappeared into CIA “black sites” before being sent to the prison. At $540 million per year, Guantánamo is the most expensive prison in America, if not the world. The Guantánamo military commissions have been marred by legal and ethical problems from day one. Almost 20 years later, the only certainty about this military trial system is that it is broken and incapable of providing justice.

At home and around the world, Guantánamo is a symbol of racial injustice, abuse, and disregard for the rule of law. It can and must be closed responsibly, and the Biden administration has the power to do it. It can start by swiftly transferring prisoners who have not been charged with a crime to third countries where their human rights will be respected. It can finally acknowledge that the fundamental fairness requirements of the Constitution’s due process clause apply to prisoners, which would help ensure a judicially-managed resolution to indefinite military detention. It can stop opposing prisoners’ federal court challenges to habeas petitions to allow for court-ordered releases. And in the military commission system, if the government has enough evidence that is untainted by torture to prosecute prisoners — including those facing the death penalty — it should pursue plea agreements that will allow meaningful justice to be done.

The Biden administration should also end another centerpiece of our “forever wars:” our government’s program of unlawful, secretive, and unaccountable killing of people outside even recognized war zones. For almost 20 years, successive presidents have claimed the unilateral power to authorize this extrajudicial killing with no meaningful accountability for wrongful deaths and civilian lives lost and injured. The lethal strikes program began during the Bush administration, and the Obama administration entrenched an architecture for it with little transparency, no accountability, and no endgame in sight for the precedent it unleashed.

The Trump administration built on this precedent, issuing secret killing rules (now public as a result of ACLU litigation) that demonstrate how easily internal executive branch constraints and norms can be cast aside. This program has profoundly damaged the rule of law and — again — exacted an appalling toll on Muslim, Brown, and Black communities in multiple parts of the world.

Earlier this year, over 113 organizations from the U.S. and around the world demanded that President Biden end the lethal strikes program. The groups include the ACLU and others focusing on human rights, groups from impacted countries, as well as veterans’ groups, and others focused on peacebuilding and racial, social, and environmental justice.

President Biden must disavow and end the program and provide acknowledgement and redress for civilian lives lost and injured. Congress also needs to act: it must reassert its role in deciding and limiting wars, with all of their costs to human rights and civil liberties. It needs to do so by repealing the 2001 and 2002 Authorizations for use of Military Force (authorizing the wars in Afghanistan and against the Saddam Hussein regime in Iraq), which presidents from Bush to Obama to Trump have invoked to justify lethal force and detention far beyond Congress’ original purpose. It needs to pass the bipartisan National Security Powers Act, which would be the most important recalibration of the balance of power between the president and Congress in decades. This legislation would ensure that a president must obtain Congress’ authorization or approval before launching military interventions — except in a genuine emergency, and then only for a short period. It requires that the president’s national security powers must be used for clearly defined purposes, subject to regular review by Congress, and only as a last resort.

Third, as my colleague Hugh Handeyside explains, we urgently need to end biased law enforcement profiling and fundamentally overhaul the watchlisting system because they violate basic rights and norms: transparency, accountability, due process, and equal protection under the law. As former FBI agent Terry Albury recently said about post-9/11 surveillance and investigation of Muslims and communities of color, “What the F.B.I. was directing us to do was to go into these communities and instill fear and then generate this paranoia within these people so that they know that they’re under suspicion perpetually.” Albury went to prison for four years after what he called his awakening — a decision to leak classified information about the Justice Department and FBI rules that permit discriminatory and devastating abuses that are still happening today. These abuses have to end.

Finally, the pervasive power of our government’s mass surveillance regime is now clearer than ever. My colleagues Patrick Toomey and Ashley Gorski explain the essential reforms Congress must enact to end corrosive, suspicionless, post-9/11 security surveillance, which can “chill the very kind of speech and association on which democracy depends.”

We all have a job to do. We must push our political leaders to dismantle this old architecture, repair the damage done, and put in place the changes we need to see. The country we want must ground security for everyone in human rights, equality, dignity, and accountability, in action as well as words. That’s what makes us truly courageous and strong.