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By Letta Tayler and Elisa Epstein[1]

This report was published on January 9, 2022 by Costs of War, a project at the Watson Institute of International and Public Affairs at Brown University

Summary

“We also have to work, though, sort of the dark side, if you will… if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for US to use any means at our disposal, basically, to achieve our objective.”
– US Vice President Dick Cheney, September 16, 2001[2]

Two decades after the attacks of September 11, 2001, and the arrival of the first terrorism suspects at Guantánamo Bay on January 11, 2002, many Americans may not recall details of the systematic abuses carried out by the United States Central Intelligence Agency (CIA) and US military against hundreds if not thousands of Muslims detained as part of what President George W. Bush swiftly declared a global “War on Terror.” Yet for many people in countries outside the United States, memories of the US government’s brutal treatment of detained Muslims remain potent. And some abuses continue, handing a recruitment card to Islamist armed groups and lowering the bar for treatment of terrorism suspects worldwide.

With the participation of at least 54 governments, the CIA secretly and extrajudicially transferred at least 119 foreign Muslims from one foreign country to another for incommunicado detention and harsh interrogation at various CIA black sites. At least 39 of the men were subjected to “waterboarding,” “walling,” “rectal feeding” – a form of rape – and other forms of torture.[3] The US military also held thousands of foreign Muslim security detainees and prisoners-of-war – including some women and boys – at its detention centers abroad including Abu Ghraib in Iraq, Bagram Air Base in Afghanistan, and its naval base at Guantánamo, and also subjected many to physical and psychological abuse.[4]

As of January 6, 2022, the US was still detaining 39 of the nearly 800 men and boys it brought to Guantánamo from 2002 to 2008. Twenty-seven of those who remain have never been charged.[5] Many lack adequate medical care and even access to their medical records, making the prison a living legacy of the rights violations spawned by 9/11.[6] The military commission system created to prosecute suspects at Guantánamo is fundamentally flawed. As a result, the five prisoners accused of plotting the 9/11 attacks have yet to be brought to trial, depriving them of due process and the survivors and the families of the nearly 3,000 people who died in the attacks of their right to justice.[7]

Popular culture has often glossed over the cruelty and failures of these measures. For example, the 2012 blockbuster movie Zero Dark Thirty and a 2019 “interrogation” exhibit at the International Spy Museum in Washington, DC – only partially revised after an outcry by human rights activists and lawmakers – trivialized the abuses inflicted on suspects and suggested, erroneously, that the torture worked.[8]

Today, even when the US decries unlawful practices abroad, it appears to have lost the moral authority that might compel other countries to curb them. Moreover, although President Barack Obama declared an end to secret detention and torture upon taking office in 2009, cruel and unlawful US counterterrorism practices adopted in response to 9/11 continue to this day, as do their repercussions.

No US government officials have been held accountable for creating, authorizing, or implementing the CIA’s secret detention and torture programs. All but a heavily redacted summary of the landmark 2014 US Senate Intelligence Committee report on the covert CIA program (the “Torture Report”) remains classified. The portions that have been released make clear that the torture was as useless in producing actionable intelligence as it was brutal.[9] Like Presidents Obama and Donald J. Trump before him, President Joseph R. Biden has shown no appetite for releasing the Torture Report, much less criminally investigating the architects of the Rendition, Detention, and Interrogation (RDI) program or other post-September 11 abuses. Biden also opposes allowing the International Criminal Court to include abuses by US nationals in its investigation on grave human rights crimes in Afghanistan.

Abroad, the US has continued abusive practices against terrorism suspects including transferring them to countries that torture, and, in at least some cases, unlawfully detaining them at US-run sites abroad or at sea. Although such US detention-related counterterrorism violations have dramatically decreased, Washington has replaced capture with kill, conducting air strikes – often with armed drones that have killed thousands of civilians, including outside recognized battlefields. Its counterterrorism campaign has spread to 85 countries with scant transparency or oversight.[10]

Meanwhile, some US allies in the fight against armed groups like Al Qaeda, the Islamic State (ISIS), and Boko Haram are carrying out torture and other crimes against terrorism suspects, including children, and detaining them inhumanely and, in many cases, indefinitely. Some allies have executed suspects following flawed trials.

This paper assesses the massive costs of US extraordinary renditions, unlawful detentions, and torture after September 11 – including to the victims and suspects, to US taxpayers, and to US moral authority and counterterrorism efforts worldwide, ultimately jeopardizing universal human rights protections for everyone. It argues that significant counterterrorism reforms, including closing the prison at Guantánamo, strengthening measures to protect civilians from death and harm, increasing transparency and accountability for the crimes the US has committed, and addressing religious and racial biases, are critical steps toward mitigating the damage.

The Taliban’s return to power and the US military withdrawal from Afghanistan in August 2021 will test the US government’s legal rationale for indefinite law-of-war detentions at Guantánamo, as well as the Biden administration’s commitment to adopting a more rights-respecting approach to counterterrorism. Thus far, Biden administration actions raise sobering questions about its commitment to ending the so-called “War on Terror.” Measures of concern that we outline below include the Justice Department’s willingness to side-step critical legal questions on habeas rights for the men held at Guantánamo and to block certain testimony related to CIA torture, and Biden’s apparent intent to continue using lethal force outside recognized war zones with drone strikes and special forces raids euphemistically rebranded as “over the horizon” operations.[11]

Key Recommendations

Biden should take bold steps to repair the damage from abusive US interrogations and detentions, starting with the closure of the US prison at Guantánamo. Among other measures, the President should release the Torture Report, and authorize the attorney general to appoint a special prosecutor to hold abusers to account. Biden should increase transparency and accountability for other crimes and violations perpetrated in the name of countering terrorism, including unlawful air strikes and raids that kill and injure civilians both in and out of recognized war zones. He should officially apologize and provide redress to victims. Anything less not only inadequately addresses the suffering and death wrought by the US, but also risks perpetuating cycles of violence by fueling the narrative of groups like the Islamic State and Al Qaeda that the West is at war with Islam.

Torture and the Global “War on Terror”

On September 11, 2001, coordinated strikes by Al Qaeda members who hijacked four airliners killed nearly 3,000 people, surpassing Pearl Harbor as the deadliest attack on US soil.[12] Most of the dead were from the US but more than 300 were from 84 other countries. The death toll continues to rise among first responders and attack survivors.[13] On September 16, President George W. Bush declared a “crusade,” a “war on terrorism” – a term he swiftly amended to a “War on Terror” – against Al Qaeda and all terrorist groups, unleashing a series of events that lowered the bar for human rights protections around the world.[14]

On September 17, Bush issued a secret memo empowering the CIA to covertly capture and detain individuals "posing a continuing, serious threat of violence or death to US persons and interests or planning terrorist activities.”[15] A day later, Bush signed into law the 2001 Authorization for the Use of Military Force (AUMF), passed by Congress four days earlier. The AUMF granted the executive near-limitless and indefinite power to wage war against any “nations, organizations or persons” linked to the attacks – a power that Bush, as well as his successors Donald J. Trump and Barack Obama used as a blank check to wage a war without boundaries against groups such as Al Qaeda and the Islamic State (ISIS).[16] Three weeks after enacting the AUMF, the US led a coalition that invaded Afghanistan to rout out Al Qaeda leader Osama bin Laden, and his forces, after the ruling Taliban refused to hand him over to the US.[17] On January 11, 2002, the first 20 men to be imprisoned at Guantánamo were flown to the base aboard a US military plane. In March 2003, a US-led coalition invaded Iraq, in what Bush justified in part as a mission to “end [Iraqi leader] Saddam Hussein's support for terrorism.”[18]

Renditions, Detentions, and Interrogations

The memo signed by Bush days after the 9/11 attacks led to the Rendition, Detention, and Interrogation RDI program, under which the CIA and, at the agency’s behest, US allies, covertly detained at least 119 Muslim terrorism suspects whom they had captured or abducted in Pakistan, Afghanistan and other foreign countries.[19] Often aided by foreign security agents, the CIA held or transferred the detainees to undisclosed prisons known as “black sites” that it operated in countries including Afghanistan, Lithuania, Romania, Poland, and Thailand, in an apparent attempt to keep them outside the reach of US and international law. The CIA also secretly held prisoners inside US-run military prisons including Guantánamo. A number of black sites or prisons holding the detainees were run by other foreign security services including in Afghanistan, Egypt, Jordan, and Morocco. The prisoners were held incommunicado in cruel, inhuman, or deeply degrading conditions for months or years.[20]

In addition, the CIA subjected at least 39 of these men to torture and other ill-treatment that it euphemistically referred to as “enhanced interrogation techniques,” according to the Senate Torture Report.[21] These included forcing the detained men to maintain painful stress positions for hours, submerging their heads in water to the point of near suffocation (“waterboarding”), denying them sleep for days, “walling” (slamming a detainee’s head into what was supposed to be a flexible wall), sensory deprivation, sexual assault including “rectal feeding” (forcing pureed food into a detainee’s anus, a procedure that has no nutritional or medical value), forced nudity, and psychological abuse including threats of rape and other violence against them and their family members.[22] At least nine FBI agents were temporarily transferred to the CIA to participate in the interrogations, according to information that became public in November 2021.[23]

The CIA also tortured opponents of then-Libyan leader Muammar Gaddafi before sending them back to Libya where they were abused anew, according to accounts by former detainees and documents from the CIA and United Kingdom’s Secret Intelligence Service (MI6).[24] They also kidnapped an Egyptian cleric and sent him to Cairo, where he alleges he was repeatedly tortured and raped.[25]

At least 54 governments participated to varying degrees in the RDI program, according to a comprehensive 2012 Open Society Foundations report. In addition to hosting CIA black sites, forms of assistance included detaining, interrogating, or abusing the prisoners, permitting the use of airspace and airports for CIA flights that secretly transferred the detainees across borders, and sharing intelligence.[26]

The US military also held thousands of foreign Muslim security detainees and Iraqi prisoners-of-war at detention centers it controlled abroad. The CIA operated black sites or had access to some of the detainees in these prisons as well, including at Guantánamo and in sections of Bagram Air Force Base in Afghanistan and Abu Ghraib in Iraq. Most of the prisoners were men, but the CIA or US military also detained women and boys, some of whom were reportedly among those sexually abused.[27]

From 2002 to 2005, the peak years of the US detention and torture program, at least 17 people died wholly or partly from abuse while in the custody of the CIA or US military in Afghanistan, or the CIA and US or British forces in Iraq.[28] Nine men died at Guantánamo, seven from what the US military said were suicides, and two from natural causes.[29] The military called three deaths on June 10, 2006 a group suicide, but others have alleged they were homicides.[30] Lawyers and family members of the others said they took their own lives in despair over indefinite confinement and abusive conditions.[31]

Many of those who survived remain physically or psychologically scarred. In a 2016 investigation, The New York Times found that at least half of the 39 people known to have been subjected to CIA torture in the wake of 9/11, including many who are now free, continued to suffer from conditions such as depression, post-traumatic stress disorder, paranoia, or psychosis. Former detainees also described permanent headaches as well as nightmares and other sleep disturbances.[32]

Bush administration officials deliberately sought to circumvent domestic and international legal prohibitions on torture – actions that warrant criminal investigations.[33] In 2002, the CIA even sought advance promises from the Justice Department’s Criminal Division that it would not prosecute its planned “aggressive interrogation” of one detainee.[34] When the Criminal Division refused the request, the CIA turned to another Justice Department division, the Office of Legal Counsel, which obligingly issued two memos advising that interrogation techniques only constituted torture under domestic or international law if they inflicted pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”[35]

By 2003, the late John Rizzo, then CIA acting general counsel and a torture program architect, was sufficiently confident of Office of Legal Counsel cover that he brushed aside concerns from a colleague that an undisclosed form of “pressure” during interrogation might violate the Geneva Conventions, a series of treaties providing minimum standards for humane treatment of civilians, prisoners of war, and soldiers who are otherwise unable to fight. The US is among the 196 countries that have ratified the Geneva Conventions.[36] The Office of Legal Counsel “has demonstrated an ingenious ability to interpret over, under and around” the Geneva Conventions, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “and other pesky little international obligations,” Rizzo wrote in a subsequently declassified memo.[37]

Abuses at Guantánamo

Around the world, Guantánamo remains one of the most enduring symbols of the injustice, abuse, and disregard for the rule of law that the US unleashed in response to the 9/11 attacks. Since January 11, 2002, the US has held at least 780 foreign Muslim males there, 15 of them boys at the time of their capture. The US military continues to detain 39 men rounded up in the wake of 9/11 at Guantánamo.[38] As of January 2, 2022, 27 of them had never been charged.[39]

Most of the detainees were handed over to the US in the aftermath of 9/11 by Pakistan or the Northern Alliance, a coalition of anti-Taliban militias in Afghanistan.[40] Bush’s Vice President Dick Cheney called the Guantánamo detainees “the worst of the worst.”[41] But according to Jane Mayer’s The Dark Side, Maj. Gen. (ret.) Michael Dunlavey, a former operational commander at Guantánamo, estimated that at least half the prisoners were held by mistake.[42] A Seton Hall University Law School study concludes that at least 55 percent of the prisoners held at Guantánamo never engaged in any hostile acts against the US and only 8 percent had any association with Al Qaeda.[43] Many allege that they were taken into custody in return for bounties based on false evidence.[44]

The late Defense Secretary Donald Rumsfeld infamously labeled the first men and boys to be sent to Guantánamo “unlawful combatants” who “do not have any rights under the Geneva Convention.”[45] By holding these foreigners abroad, the Bush administration hoped to avoid US jurisdiction and law, prompting legal challenges that resulted in landmark, if imperfect, rebukes by the Supreme Court.[46]

Torture and other Inhumane Treatment

During the Bush presidency the US military subjected the prisoners to torture and other ill-treatment that included placing them in stress positions, holding them in extended solitary confinement, threatening them with torture and death, siccing attack dogs on them, depriving them of sleep, and exposing them for prolonged periods to extreme heat, cold, and noise.[47]

Many of the men transferred to Guantánamo – including more than half of those who remain – had already spent extended periods in secret CIA black sites.[48] One black site, which CIA agents nicknamed “Strawberry Fields” because detainees could conceivably remain there “forever,” was actually at Guantánamo, adjacent to the main prison compound.[49] (The CIA secretly placed four men it considered to be among its highest-value detainees, including two 9/11 suspects, in Strawberry Fields in 2003 after subjecting them to torture at other black sites. Six months later the agency secretly flew the four men back to farther-flung black sites, hoping to evade a Supreme Court ruling that would give prisoners at Guantánamo access to lawyers. In 2006, after media exposed the black site network, the men were again flown to Guantánamo and placed in the main prison compound, where they remain.[50])

Failure to Close Guantánamo

Immediately after taking office Obama promised to close the prison at Guantánamo within one year, but backed down following opposition from Congress, and failed to pursue executive actions that could have bypassed congressional funding freezes on transferring prisoners to the US for prosecution in federal courts.[51]

Trump did not fulfill his campaign vow to “load up [Guantánamo] with some bad dudes.”[52] Nevertheless, he promptly reversed his predecessor’s order to close the prison at Guantánamo, failed to transfer any of the five men who had been cleared for release by the Obama administration, and only cleared one additional detainee for release.[53]

Just weeks after taking office, President Joseph R. Biden initiated a review of operations at Guantánamo with the aim of closing the prison before his term ends.[54] However, as with his approach to lethal targeting, his administration’s actions thus far raise the prospect that Biden will default to the status quo of flawed trials and indefinite detentions.

The day after Biden’s inauguration, the Pentagon sought charges against three men held at Guantánamo whom it alleged were implicated in two sets of bombings in Indonesia – of Bali nightclubs in 2002 and a J.W. Marriott hotel in Jakarta in 2003 – suggesting prosecutions at Guantánamo would continue.[55] The Biden administration also cleared eight men for transfer, bringing to 13 the number of detainees remaining at Guantánamo despite being approved to leave, three of them more than a decade ago.[56] However, as of January 2, 2022 it had only transferred one man, a Moroccan who had spent 19 years at Guantánamo without charge and had been cleared to leave in 2016.[57] At time of writing, the Department of Defense was building a second courtroom for military commission trials at Guantánamo, suggesting that the Biden administration has no plans to shut down operations there any time soon.[58]

Due Process Violations

The Guantánamo detainees have been denied due process rights and redress for abuses. More than six years passed before the US Supreme Court, in Boumediene v. Bush (2008), affirmed that the constitutional right of detained people to challenge the lawfulness of their detention applied to the men at Guantánamo, striking down amendments to the federal statute to eliminate habeas jurisdiction for any “enemy combatant” in US custody.[59] However, the Supreme Court did not articulate a standard of review beyond directing lower courts to provide a “meaningful” opportunity for petitioners to challenge the basis for their detention.[60] Although lower US district courts granted many Guantánamo detainees habeas relief, a federal appeals court reversed nearly all but one of those decisions that came before it and imposed a standard of review that made it virtually impossible for detainees to win their cases.[61] In a closely watched case, the full federal appeals court heard oral arguments in September 2021 on the question of “meaningful” review.[62]

The 10 men at Guantánamo who have been criminally charged include the five alleged September 11 co-conspirators, all of whom were tortured. They also include three men accused of links to the Bali and Jakarta bombings in 2002 and 2003.

The 27 men held without charge include Abu Zubaydah, the first “ghost prisoner” who, during four and a half years in CIA black sites before his transfer to Guantánamo, was waterboarded 83 times, held naked and in stress positions, deprived of sleep, confined in small, coffin-like boxes, deprived of solid food, and physically assaulted.[63] The US has argued that releasing Zubaydah would constitute too great a risk to national security.[64] The two other men still held at Guantánamo are serving sentences after being convicted in flawed military commission system created for prisoners prosecuted there.[65]

Bush authorized the creation of the military commission system at Guantánamo in November 2001 to try “certain non-citizens in the war against terrorism.”[66] Despite subsequent reforms, including by Congress, the commissions remain fundamentally broken.[67] Among their many flagrant due process violations, the commissions have deprived defense counsel of the means to prepare an effective defense, prevented the accused from seeing all evidence introduced against them, and failed to adequately guarantee that information obtained via torture or ill-treatment would not be used as evidence. They have been plagued by recurrent allegations of government interference including eavesdropping on confidential client-attorney conversations.[68] Such irregularities would be grounds for dismissal in a US federal court.

The pre-trial hearings at the military commission for the five men charged in connection with the 9/11 attacks have dragged on for 13 years, plagued by due process violations and prosecution efforts to use evidence derived from torture.[69] Presiding military judges have come and gone, and many were unqualified to oversee capital cases although the prosecution continues to seek the death penalty for all five men.[70] The three men accused of connections to the Indonesia attacks were arraigned before a military commission only in August 2021, 18 years after they were apprehended, in proceedings marred by translation problems as well as defense allegations that the accused were tortured.[71]

In 2013, a pre-trial hearing in the 9/11 case was disrupted when a red censorship light unexpectedly flashed and the audio feed to the courtroom’s gallery was abruptly cut without advance notice to – much less permission from – the judge.[72] The unilateral cut-off was later traced to the CIA. In 2020, defense counsel in the 9/11 case accused the CIA of using a monitoring device in the courtroom to direct the prosecution, not exclusively to prevent spills of classified information. The defense lawyers only discovered the device accidentally as the judge had approved it without their knowledge in an ex parte session with the prosecution.[73]

In another example, defense counsel inadvertently learned in 2016 that the judge in the 9/11 case had approved, also in an ex parte session with the prosecution, the destruction of a CIA black site where prisoners had been tortured as well as evidence inside it. The defense was under the impression that the judge had granted its request to block the site’s destruction.[74]

In 2020, the prosecution in the 9/11 case invoked national security privilege to block the defense from questioning James Mitchell, the psychologist who designed the CIA’s so-called “enhanced interrogation techniques” with his partner Bruce Jessen, about portions of a book he published on the RDI program, even though the CIA had cleared that material for publication years earlier.[75]

In October 2021, the graphic testimony of detainee Majid Khan about his torture at the hands of the CIA in three black sites in the early 2000s was so harrowing that a jury of US military officials took the extraordinary move of writing a hand-written rebuke to the US government, calling Khan’s treatment “a stain on the moral fiber of America.” The letter, from seven of the eight jurors, urged clemency for Khan even though he had pleaded guilty to terrorism-related charges including serving as an Al Qaeda courier.[76]

Although the Biden administration has sought to curb some of the prosecution abuses, it has stopped short of robust reform. As of January 2, 2022, prosecutors had not fully retracted a motion they made the previous March that led the judge in the USS Cole case to rule that under certain conditions, a judge could consider statements obtained through torture in pretrial proceedings. (In September, a Pentagon appeals panel overturned the judge’s ruling regarding the case in question but did not resolve the broader issue of whether prosecutors can use evidence obtained through torture. The defendant’s lawyers then filed a petition in a US federal appeals court asking it to bar prosecutors and the military commission from any consideration of use of torture-tainted evidence. That case was pending at time of writing.)[77] Also of deep concern, the Biden administration, in another legal challenge involving a prisoner held since 2004 without charge, has reportedly evaded the question of whether the US Constitution’s guarantee of due process rights applies to foreign detainees at Guantánamo.[78]

In a case heard in October 2021 by the US Supreme Court, the Justice Department under Biden has sought to bar Mitchell and Jessen from testifying about the CIA torture of detainee Zubaydah. The testimony would be used in an investigation by the Polish government into the complicity of its nationals in abuse at a CIA black site in Poland. US prosecutors have argued that the testimony would reveal “state secrets,” even though, as noted above, both Mitchell and Jessen had previously testified about supervising “enhanced interrogation,” Mitchell had written a book about it, and details of Zubaydah’s torture have been widely reported in media.[79]

Medical Abuse

Beyond due process violations, the men held at Guantánamo continue to be subjected to abuse including sporadic force-feeding during hunger strikes and medical neglect even as their health needs become increasingly complex as they age.[80] Many of the men who were tortured still suffer physically and psychologically. Yet their medical records lack details of their trauma histories, contributing to misdiagnoses and incorrect treatments, and the prison does not offer them torture rehabilitation services, according to a 2019 report by Physicians for Human Rights and the Center for Victims of Torture. Furthermore, the detention commander can override medical recommendations, and in some cases prosecution interests have trumped medical interests, “as with a detainee who was forced to attend court proceedings on a gurney writhing in pain while recovering from surgery,” the report found. Many of the men do not have access to their own medical records and even when they do, significant portions are often classified.[81]

Continuing Outcry over Detentions

Protests over the government’s failure to close the prison at Guantánamo continue both in and outside the government.

In February 2021, eight independent UN human rights experts and 111 nongovernmental organizations marked the 19th anniversary of the opening of the Guantánamo Bay prison by calling on Biden to close the detention center and end indefinite military detention there without delay.[82] “Guantánamo embodies the fact that, for nearly two decades following the September 11, 2001 attacks, the US government has viewed communities of color – citizens and non-citizens alike – through a security threat lens, to devastating consequences,” the organizations wrote. “This is not a problem of the past. Guantánamo continues to cause escalating and profound damage to the men who still languish there, and the approach it exemplifies continues to fuel and justify bigotry, stereotyping, and stigma. Guantánamo entrenches racial divisions and racism more broadly, and risks facilitating additional rights violations.”[83]

In the past year, nearly 100 members of both houses of Congress have urged Biden to close the prison. Guantánamo is “a symbol of lawlessness and human rights abuses,” 24 senators wrote the president in April.[84] The prison’s continued operation is “a fundamental betrayal of our values” that “undermines our ability to advocate for human rights and the rule of law,” 75 representatives wrote in August.[85] During a rare congressional hearing in December on Guantánamo, eight Democratic senators, a retired military commander, and 9/11 victims’ relatives expressed frustration over the Biden administration’s stalled efforts. Sen. Richard J. Durbin (D-Ill.), the panel’s chairman, said he was dismayed that “this hearing is even necessary.” The Biden administration declined to even send a witness to testify.[86]

Abuses Beyond Guantánamo

US counterterrorism practices have changed dramatically since Bush left office but remain deeply problematic and, in many cases, unlawful. Although the CIA torture program ended with the Bush presidency, the US has continued to engage to some degree since then in unlawful counterterrorism-related detentions, interrogations, or transfers to countries that torture. At the same time, Washington has replaced capture with kill, conducting air strikes, often with armed drones that have killed thousands of civilians, including outside recognized battlefields. The US counterterrorism campaign has spread to 85 countries with scant transparency or oversight.[87]

Lethal Targeting and Air Wars

One of the most dramatic developments since Bush left office is the ascent of lethal targeting of alleged terrorism suspects both in and outside of recognized war zones. The CIA and US military have carried out thousands of attacks against alleged members of Al Qaeda and so-called “associated forces” in countries including Pakistan, Somalia, and Yemen, often with armed aerial drones and in some cases with special forces.

While the US insists that the overwhelming majority of its drone strikes and other lethal targeting operations are lawful and conducted with utmost care and precision, it has failed to provide the transparency that would help impartial observers assess such claims. Independent estimates of civilian deaths from lethal counterterrorism strikes outside recognized war zones range from the high hundreds to the low 2,000s.[88]

Bush began the lethal targeting program but it was Obama who embraced it, carrying out 563 strikes during his two terms, nearly 10 times the number as his predecessor.[89] “Turns out I’m really good at killing people,” Obama reportedly told aides in a quiet voice when assessing his achievements and compromises in 2011.[90] Yet reports that many of these strikes appeared to have unlawfully killed civilians abounded during his presidency.[91] Trump further ramped up the lethal attacks while scaling back Obama’s already insufficient safeguards.[92] In promising first steps, President Biden, during his first 11 months in office, dramatically curtailed drone strikes and apparent civilian casualties.[93] He has also initiated a review of US lethal targeting policy as part of a broader assessment of ways to mitigate civilian harm during counterterrorism operations.[94] However, he does not appear to be contemplating an end to lethal targeting, based on his vow to conduct “over-the-horizon” responses to perceived terrorist threats by relying primarily on drone strikes and occasional special forces operations in areas where the US is not fighting a conventional ground war.[95]

The targeted killing of terrorism suspects outside situations of armed conflict violates international human rights law unless the suspect poses an imminent threat to life and using lethal force is a last resort.[96] The laws of armed conflict, in contrast, permit deadly attacks on enemy combatants. But even then, opposing parties to the conflict must take all feasible steps to minimize civilian harm.

Notwithstanding the use of precision bombs and drones, the US-led military campaigns against ISIS in Iraq and Syria, and the Taliban and an ISIS branch in Afghanistan also appear to have unlawfully killed far more civilians than the Pentagon has acknowledged and with insufficient accountability, transparency, or redress. A series of New York Times investigations has provided some of the most compelling evidence. In its most sweeping findings, published in December 2021 and drawing from research including 1,300 pages of Pentagon documents obtained through Freedom of Information Act litigation, The New York Times alleged that since 2014, these air wars show a pattern of deeply flawed intelligence and rushed, imprecise targeting, resulting in the deaths of thousands of civilians, many of them children.[97]

These findings bolstered a New York Times investigation from 2017, which found that one in five US-led coalition strikes against ISIS in Iraq during the Obama presidency resulted in civilian death. That rate is 31 times higher than that acknowledged by the coalition, which said 89 of its more than 14,000 airstrikes in Iraq resulted in civilian deaths, or about one of every 157 strikes.[98]

Under Trump’s watch, a covert US special force bombed dozens of women and children huddled in the open air, then bombed fleeing survivors during the battle of Baghuz that toppled ISIS’s last holdout in Syria in 2019, a New York Times investigation revealed in November 2021. The coordinated strikes reportedly killed about 80 people, making it one of the largest civilian casualty tolls of the war against ISIS. The US military stalled reviews of this apparent war crime and US-led coalition forces literally buried key evidence, bulldozing the site.[99] Weeks after The New York Times report, Biden’s defense secretary ordered a review of the strike and cover-up but by the military itself, despite calls for an independent assessment.[100]

On August 29, 2021, the penultimate day of the US pullout from Afghanistan, the US military carried out a drone strike in Kabul that the chairman of the Joint Chiefs of Staff initially hailed as a “righteous” attack that appeared to have thwarted an imminent bombing by the Islamic State affiliate ISIS-Khorasan. But days later, following yet another exposé by The New York Times, the Pentagon acknowledged that the strike was a “tragic mistake” that instead killed 10 Afghan civilians, including seven children and an employee of a US-based aid organization.[101] Compounding concern, the US military’s review of the botched strike remains classified. A one-page fact sheet on its findings asserts there is no basis for criminal proceedings, although it does not preclude the chain of command taking corrective measures and assessing accountability “as appropriate.”[102] In December, the Pentagon announced that none of the US military personnel involved in the strike would face any form of punishment.[103]

Unlawful Detentions, Transfers, Harsh Interrogations

Obama, upon taking office, immediately issued an executive order to end US secret detention and torture.[104] But he did not revoke CIA powers to temporarily detain suspects and transfer them to other countries for interrogation or prosecution. Instead, he pledged to ensure that their treatment was humane.[105] While no evidence has emerged since then that the US has reprised the horrific programs of the Bush presidency, deeply disturbing cases or allegations of abusive practices under Obama and Trump continue to surface, as well as one that carried into the Biden presidency.

Afghanistan

Many of the detention-related violations that continued after the Bush presidency took place in Afghanistan. In 2011, more than two years after Obama declared an end to torture and secret detention, his administration confirmed that terrorism suspects in Afghanistan were being secretly detained and interrogated for up to nine weeks, without access to a court or counsel, at several “temporary” detention centers run by the US military’s elite Joint Special Operations Command, including one at Bagram air base. Former detainees alleged they were forced to strip upon arrival and held in solitary confinement in windowless, often excessively cold rooms with 24-hour lighting, and were denied contact with lawyers and family members.[106]

BuzzFeed News revealed in 2016 that for at least 16 months in 2009 and 2010, the US military subjected at least 58 detainees to “separation,” a procedure under which prisoners were held incommunicado from anyone except personnel such as US guards, interrogators and medics, for up to 30 days at a time. The practice could amount to inhumane treatment in and of itself. At least 23 times, US personnel combined “separation” with other problematic tactics to induce detainees to talk, according to US military documents obtained by BuzzFeed News. The US military blacked out the information it provided BuzzFeed News on the additional tactics it used. According to its official intelligence-gathering manual,[107] interrogators may couple “separation” with techniques such as sleep restrictions and “Fear Up” – preying on detainees’ existing fears.[108]

Under Obama, US forces also handed over prisoners they captured to Afghan detention centers where the detainees were systematically tortured. Among other methods, captors subjected detainees to electric shocks, hung them by their wrists, beat them with cables or sticks, removed their toenails, twisted and wrenched their genitals, and threatened them with sexual abuse.[109] Moreover, the CIA also continued to recruit, equip, train, and deploy Afghan paramilitary forces who summarily executed civilians during night raids, forcibly disappeared detainees, and attacked healthcare facilities for allegedly treating insurgent fighters, among other grave crimes, with no accountability – a practice that continued during the Trump presidency.[110]

Africa

The Obama administration engaged in unlawful practices elsewhere including in Africa. In 2009 and 2010, Nigerian officials held an Ethiopian Al Qaeda suspect for four months, during which time he was interrogated first by a US “dirty” team that ignored his Miranda rights, then by a “clean” team of US agents.[111] According to a diplomatic cable, US officials pressured Nigerian authorities to detain Ahmed.[112] The US then brought the suspect, Mohamed Ibrahim Ahmed, to New York where he pled guilty to terrorism-related charges in a federal court.[113]

In 2011, two Swedes and a U.K. citizen with ties to Somalia were arrested by Eritrean authorities in Djibouti, where US interrogators were among those who questioned them for two months without charge. The men were then secretly indicted in absentia by a US federal grand jury and flown by the FBI to New York, where they were convicted in 2016 of terrorism-related charges.[114]

In 2014, The Nation reported that CIA agents also regularly interrogated Al Shabab suspects in a basement prison in Somalia and kept Somali intelligence agents there on the agency payroll. The detainees included men illegally handed over to Somalia from neighboring Kenya, including in at least one case based on intelligence provided by the US, the report said. Former detainees told The Nation the prisoners were held in filthy, insect-infested, windowless cells, that they were never allowed outdoors, and that some prisoners had been held without charge or trial for months or years.[115]

In separate operations in 2011, 2013 and 2014, US forces also apprehended three foreign men – one in international waters off Somalia and two in Libya – and secretly detained them for extended periods aboard military ships, interrogating them for intelligence purposes before separate US law enforcement teams read them their Miranda rights and re-interrogated them for prosecution on terrorism-related charges. This two-tiered approach circumvented longstanding US criminal and military procedural protections against government abuse, incommunicado detention, and torture.[116] In the first case, a team of Federal Bureau of Investigation, CIA, and Defense Department personnel seized, secretly detained, and interrogated a Somali Al Qaeda suspect for more than two months aboard a US Navy ship for intelligence purposes.[117]

Notably, the US has extended this flawed dual-interrogation strategy to its “war on drugs,” detaining people it apprehends at sea on suspicion of drug smuggling for weeks or even months aboard ships dubbed “floating Guantánamos” before they are arraigned in domestic courts.[118] In 2017, for example, the US Coast Guard kidnapped and forcibly disappeared four Jamaican fisherman and kept them chained to the decks of four of its ships, incommunicado, for over a month.[119]

As recently as July 2021, a British citizen who had been held without charge since 2019 in Somalia claimed that his Somali captors had subjected him to hooding, sensory deprivation and waterboarding, and that he was questioned between torture sessions by two people with American accents who refused to disclose their identities. The man said he believed his torturers wanted him to cooperate with the CIA. He also said he was questioned by the FBI as recently as June 2021.[120]

Iraq

The Trump administration also carried out unlawful renditions from northeast Syria to authorities in neighboring Iraq, despite the Iraqi government’s well-documented record of torture and due process violations of terrorism suspects.[121] In 2017 and 2018, the US forcibly transferred at least 30 foreign ISIS suspects to Iraq. Two of the men alleged that after their transfer, Iraq’s Counter Terrorism Service beat them, held them in stress positions, and applied electric shocks to their genitals.[122]

The US military in 2017 and 2018 unlawfully held a US citizen in Iraq without charge, for more than a year, on suspicion of membership in ISIS. For the first four months, the man, known only as “John Doe,” was held in secret with no access to an attorney. After multiple court interventions by the American Civil Liberties Union, including one to stop the US from sending the man to Syria, where his life was at risk, a federal court ordered the man’s voluntary release to an undisclosed third country.[123]

In 2020, the Trump administration threatened to transfer two notorious British ISIS suspects to authorities in Iraq, if the U.K. government did not promptly agree to let them be prosecuted in the US.[124] The two men, part of an ISIS quartet of U.K. nationals implicated in summary executions known as “The Beatles,” were being held by the US military in Syria and Iraq. Britain’s highest court two months later authorized the two suspects’ transfer to the US for prosecution in return for diplomatic assurances that the US would forgo the death penalty.[125] One of the defendants pled guilty in September 2021 to helping torture and kill hostages and faces life without parole.[126]

Violations of International and Domestic Law

Despite Bush administration protestations to the contrary, the US program of extraordinary renditions, secret detentions, and torture following 9/11 brazenly flouted international and US law. The detentions without charge and other abuses at Guantánamo, as well as many counterterrorism operations in other countries, also violate these laws and several appear to be war crimes.

International Legal Standards

The US is party to several international treaties that prohibit under all circumstances torture and other cruel, inhuman, and degrading treatment. They include the International Covenant on Civil and Political Rights (ICCPR), which prohibits any limitations on the rights to life, and protection against torture and cruel, inhuman, and degrading treatment or punishment under any circumstances, even during states of emergency.[127] The ICCPR also prohibits arbitrary and indefinite detention without charge in violation of due process.[128] Prolonged incommunicado detention such as that at Guantánamo, Abu Ghraib, and other US-controlled detention centers amounts to torture or other cruel, inhuman, and degrading treatment.[129]

The Convention against Torture, to which the US is also party, sets forth that “no exceptional circumstances whatsoever,” including war or the threat of war, may be invoked as a justification for torture.[130] The convention also prohibits transferring anyone to another country where there are substantial grounds to believe they face the risk of torture.[131] It provides that any statement made as a result of torture shall not be invoked as evidence in any proceedings.[132]

Moreover, the convention obligates countries that are parties to either submit cases of torture for prosecution or extradite torture suspects. It also grants countries universal jurisdiction, allowing domestic judicial authorities to prosecute torture suspects even if they are not their citizens or are not accused of committing torture on their territory.[133] This provision alone should have compelled successive US administrations to open meaningful criminal investigations at the highest levels into the US military and CIA use of torture and ill-treatment of detainees around the world.

International humanitarian law, or the laws of war, provide for the detention of prisoners-of-war and civilians who pose an imperative security risk. In addition, during non-international armed conflicts, such as the civil war in Afghanistan or other fighting between states and non-state armed groups, individuals who take up arms or are otherwise involved in rebel activity may be detained and prosecuted in accordance with domestic laws. However, the four Geneva Conventions of 1949, to which the US is party, entitle anyone detained during armed conflict to basic protections, including against torture and other ill-treatment.[134] Common Article 3 to all four conventions explicitly extends protections against murder, mutilation, torture, cruel, humiliating, and degrading treatment, and fair trial violations to members of non-state groups.[135] The treatment of those the US apprehended in connection to the armed conflict in Afghanistan violated the provisions on humane treatment under Common Article 3 and customary international humanitarian law. The treatment of those the US apprehended in Iraq also violated the Third Geneva Convention, which states that prisoners of war must be humanely treated at all times.[136]

But the Bush administration fought Geneva Convention protections for foreign detainees all the way up to the US Supreme Court. More than four years passed before the Supreme Court affirmed in 2006 in Hamdan v. Rumsfeld that Common Article 3 applies to the US conflict with Al Qaeda. The court also found that the structure of the military commissions created to try detainees at Guantánamo violated both the fair trial standards of Common Article 3 and the domestic Uniform Code of Military Justice and was unconstitutional.[137]

The US is seeking the death penalty for the five men charged in connection to the 9/11 attacks. International human rights law prohibits capital punishment following convictions in flawed proceedings.[138]

The US military and CIA counterterrorism strikes during situations of armed conflict have in many cases violated the laws of war. These laws permit attacks on enemy combatants, such as members of armed groups and other military objectives, but strictly prohibit attacks on civilians and civilian structures. Not all attacks that cause civilian deaths or injuries violate the laws of war – only those that target civilians, do not discriminate between civilians and combatants, or cause expected civilian loss excessive to the anticipated military gain. Parties to a conflict must take all feasible steps to minimize civilian harm.[139] Governments have an obligation to investigate both serious violations and grave breaches of the laws of war, and prosecute those responsible.[140]

Outside situations of armed conflict, governments have even greater obligations to protect human life. International human rights law allows law enforcement to use lethal force only as a last resort, such as when there is an imminent risk to human life and capture is not feasible.[141]

Domestic Law

The rights and protections in such international treaties are also enshrined in the US Constitution and domestic law. The Eighth and Fourteenth Amendments to the US Constitution prohibit cruel and unusual punishments and due process violations. The Federal Anti-Torture Statute of 1994, enacted to comply with the Convention against Torture, extends US federal jurisdiction over acts of torture committed abroad when the alleged offender is a US national or is found within the US, irrespective of the nationality of the victim or the alleged offender.[142] The War Crimes Act of 1996 criminalizes grave breaches of the Geneva Conventions if either the victim or the perpetrator is a US national or a member of the US armed forces. Convicted war criminals can be punished with life imprisonment or death.

The Detainee Treatment Act of 2005 bars the use of cruel, inhuman, or degrading treatment or punishment against any person in US custody.[143] An amendment to the 2016 National Defense Authorization Act (known as the McCain-Feinstein Amendment), aims to protect against US torture and other ill-treatment of detainees by restricting interrogation techniques to those contained in the US Army Field Manual on Human Intelligence Collector Operations, the government’s important, albeit inadequate, guidelines for the US military and CIA on lawful interrogation techniques.[144] The amendment also requires timely access by the International Committee of the Red Cross to detainees in US custody.[145]

Scant Accountability for Torture

The US government has failed to hold accountable the key architects of post-9/11 unlawful renditions, detentions, and torture, despite clear and compelling evidence that warrants criminal investigations of former Bush and top members of his administration, among others.[146] Although some efforts abroad are notable, they remain insufficient.

Bare-Bones US Investigations

The Obama administration only investigated the CIA for torture and other abuse, probing more than 100 cases but ultimately declining to bring any charges.[147] The administration limited its investigations to instances in which interrogators exceeded legal authorizations, disregarding that the authorizations themselves were unlawful.[148]

For example, the Obama Justice Department declined to bring charges against any CIA officials for deliberately destroying 92 videotapes in 2005 that contained direct evidence of torture.[149] It also declined to prosecute anyone for the deaths of two men in CIA custody after brutal interrogations in 2002 and 2003.[150] One of those men, Gul Rahman, froze to death in November 2002 in a CIA black site dubbed “The Salt Pit” near Bagram in Afghanistan. Rahman died after his captors left him shackled to a cement wall in near-freezing temperatures, naked from the waist down. In the preceding days CIA interrogators had kept him awake for 48 hours, blasted him with noise, immersed him in complete darkness and isolation, and doused him with cold water, among other abuses.[151] In fact, rather than prosecuting those officers responsible for Rahman’s death, four months later the CIA bestowed a “cash award” of $2,500 to the officer who had ordered his shackling for his “consistently superior work.”[152] The CIA promoted or gave bonuses to several other staff members who participated in the torture program.[153]

The other case involved Manadel al-Jamadi, who died in 2003 at Abu Ghraib. US military and CIA interrogators subjected al-Jamadi to “blunt force trauma” that broke five of his ribs, then suspended him from a barred window by his wrists, naked from the waist down with a sandbag on his head, where after a half-hour he slumped over and stopped responding. Upon realizing al-Jamadi was dead, his captors packed his corpse in ice, wrapped it in plastic, stuck an intravenous drip into his arm and pretended he was on life support as they wheeled him out.[154] US Army reservists posed for photographs with his ice-packed corpse, smiling with thumbs up.[155] In both the Rahman and al-Jamadi cases, the Justice Department claimed, astonishingly, that “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”[156]

Only small numbers of lower-level participants in US military abuse have faced justice. Of the 27 soldiers and officers against whom US Army investigators had recommended criminal charges for the torture and, in two cases, deaths of Bagram detainees, only 15 were prosecuted, in 2004 and 2005. Of these, only six were convicted – five in guilty pleas and one at trial. The most severe punishment was five months in a military prison.[157]

Following the release in 2004 by the “60 Minutes” television program of some of the hundreds of photos documenting the rampant abuse of prisoners at Abu Ghraib, 11 US soldiers were prosecuted and convicted in military trials, including two who posed with al-Jamadi’s corpse.[158] But the higher-ranked officers who knew of the abuses, and the private military contractors who also participated, evaded justice.[159]

In 2017 the psychologists Jessen and Mitchell settled a lawsuit brought by the American Civil Liberties Union, paying an undisclosed sum to two torture victims and the family of Rahman.[160]

Rather than investigating and prosecuting government officials who participated in or advocated torture, Trump promoted some of them. Those he promoted include Gina Haspel, his second CIA director, who reportedly oversaw torture at the CIA’s first black site in Thailand and played a key role in destroying the videotaped evidence of torture.[161] Michael Pompeo, Trump’s second Secretary of State and first CIA director, as a member of Congress defended the torture program as “within the law.”[162] During his confirmation hearings for CIA director, Pompeo acknowledged that “enhanced interrogation techniques” were illegal under the 2015 McCain-Feinstein Amendment, but not that they also violated US and international law at the time the Bush administration authorized them and the CIA used them.[163] Trump in 2018 nominated Marshall Billingslea to oversee the State Department’s human rights work although as a Bush administration official he had advocated harsher interrogation methods for men detained at Guantánamo.[164] After the Senate deadlocked over Billingslea’s nomination, at least in part because of his record on torture, Trump appointed him to a position not requiring Senate approval.[165]

Nine years after the release of the heavily redacted summary of the 6,700-page Torture Report – less than one-tenth of the total text – Biden has shown no more inclination than his two predecessors to release the full contents.[166] His administration has also deflected questions on CIA abuse from the UN Committee Against Torture, the body that monitors countries’ compliance with the Convention Against Torture. “[F]or reasons of privacy, the United States is not in a position to disclose the information sought with regard to Central Intelligence Agency (CIA) detained persons rendered to other countries,” reads a US submission to the committee from September 2021.[167]

Keeping the report classified prevents the public from fully understanding the torture program, shields the identities of the torturers, impedes the ability of torture victims to access medical records relating to their abuse, and further prolongs arguments over national security classifications during pre-trial hearings at Guantánamo.

Insufficient Accountability Abroad

Several other countries have provided compensation to former detainees held by the CIA or the US military in cases where their own authorities also committed wrongdoing, or have prosecuted some of those implicated in these abuses. Though foreign countries have done more than the US, their responses – most court-ordered – have also in many cases been insufficient.[168]

Significantly, the European Court of Human Rights has found that five European countries – Macedonia, Poland, Italy, Romania, and Lithuania – violated provisions in the European Convention on Human Rights by collaborating with the CIA’s RDI program. The violations included the prohibition on torture and ill-treatment and the right to liberty and security. The court ordered the countries to pay damages to their 20 known victims.[169]

The U.K. has paid more than $28.8 million USD to Iraqi victims to settle complaints linked to numerous, well-documented war crimes and other abuses that it committed as a partner in the US-led invasion of Iraq.[170] However, the U.K. has only prosecuted its military forces for one of these crimes, the beating to death of Basra hotel receptionist Basa Mousa in British custody.[171] The U.K. government shelved an independent inquiry into its forces’ involvement in post-9/11 extraordinary renditions and torture.[172] It also shut down the principal investigation team into alleged crimes by U.K. forces in Iraq before it had completed its work, following pressure from some media and members of parliament.[173]

In 2017 Canada apologized and paid $10.5 million CA ($8.1 million USD) in damages to Omar Khadr, a former child solder who was 15 when US forces captured him in 2002 during a firefight in Afghanistan.[174] Khadr, who was severely wounded, was held for three months at Bagram and for a decade at Guantánamo, during which time he alleges that he was brutally tortured.[175] In 2010, Canada’s Supreme Court found that Khadr’s rights were violated when Canadian intelligence officials interrogated him at Guantánamo.[176]

In 2009 and 2012, Italy convicted a total of 25 alleged CIA agents and one US Air Force colonel for the kidnapping in Milan of an Egyptian cleric known as Abu Omar, who was then handed over to Egypt via Germany and allegedly tortured for four years while held without trial.[177] Because the convictions were in absentia, none of the Americans convicted served prison time.[178]

International Criminal Court

Both the Trump and Biden administrations have sought to thwart any accountability for international crimes by US forces before the International Criminal Court (ICC). In 2020, Trump imposed unprecedented sanctions on ICC staff including the prosecutor at the time, after the court’s judges authorized an investigation into alleged war crimes and crimes against humanity in connection with the conflict in Afghanistan that could have included abuses by US nationals.[179] In April, the Biden administration lifted the US sanctions against the court’s members but made clear it continued to oppose the court’s jurisdiction over US nationals and personnel in Afghanistan.[180] In a move castigated by critics as capitulation to political pressure from Washington, the new ICC prosecutor, Karim Khan, announced in September that he had sought permission from one of the court’s pre-trial chambers to proceed with the investigation but that he intended to focus only on grave crimes allegedly committed by the Taliban and ISIS-K and “deprioritize” those allegedly committed by the US military, CIA, and forces of the former Afghan government.[181] Khan’s action risks not only perpetuating impunity for apparent US war crimes but also undermining the already fragile legitimacy of the ICC, the world’s only permanent court entrusted with prosecuting the most serious international crimes including war crimes and crimes against humanity.

As a court of last resort, the ICC can only intervene in cases where a state is unable or unwilling to carry out investigations and prosecutions. Only if the US were to change course and genuinely seek criminal accountability for the grave abuses committed by the US military, CIA, and contractors in relation to the Afghanistan conflict would it be in a position to legitimately challenge the ICC jurisdiction in those cases.[182]

Costs at Home and Abroad

The corrosive repercussions of the Bush-era detention and interrogation abuses continue to this day, both at home and abroad. They have cost US taxpayers trillions of dollars and militarized police responses at home. They have robbed victims of 9/11 and other extremist armed attacks of justice and shattered the lives of foreign men who were brutally detained for years without charge. They have given cover to foreign governments to carry out their own unlawful detention and torture with impunity and to dismiss US human rights diplomacy as hypocrisy. They have shaken the foundations of the international human rights system, jeopardized the safety of US citizens abroad, and handed a propaganda tool to armed groups like Al Qaeda and ISIS.

Domestic Costs

The “War on Terror” has cost US taxpayers trillions of dollars and the detention component has easily run into the billions. Because much information on US unlawful detention and interrogation is classified, the true cost of those practices to taxpayers remains elusive. Nevertheless, a few studies underscore the enormous sums involved.

US taxpayers are spending $540 million a year just to detain prisoners at Guantánamo, which comes to nearly $13 million annually per prisoner, according to a 2019 investigation by The New York Times.[183] This estimate includes the cost of nearly 2,000 guards, health care for aging detainees whose medical needs are complicated by the abuse they suffered in CIA black sites or in Guantánamo itself, and the military commissions. The true costs could be far higher as the estimate does not include classified expenses, such as the CIA presence at the base.

By 2018, the “War on Terror” had cost US taxpayers nearly $3 trillion, according to a study by the Stimson Center think tank.[184] Brown University’s Costs of War project, the publisher of this paper, in September 2021 estimated the figure to be more than $5.84 trillion, or $8 trillion counting estimated future care for veterans through 2050.[185] The studies do not include breakdowns for detentions abroad.

While outside the scope of this paper, the fallout on the domestic criminal justice system has also been extensive. Across the US, the September 11 attacks ushered in warrantless surveillance, allowing the government to obtain citizens’ most sensitive data without any suspicion of wrongdoing.[186] They spurred further militarized approaches to policing and religious, racial, and ethnic profiling in predominantly Muslim, Black, and brown communities.[187] They also ushered in abusive investigations, prosecutions, and detention conditions for Muslim American terrorism suspects.

A 2014 report by Human Rights Watch found a pattern of sting operations against Muslim Americans that facilitated or invented targets’ willingness to act, imposed unnecessarily restrictive detention conditions – including prolonged solitary confinement and curtailed pretrial communications that possibly impeded suspects’ ability to assist in their own defense – and resulted in excessive prison sentences. These practices “have alienated the very communities the government relies on most to report possible terrorist threats and diverted resources from other, more effective ways of responding to the threat of terrorism,” Human Rights Watch said.[188]

No Justice for September 11 Victims and Families

The US government’s reliance on deeply flawed military commissions, along with other due process failures, has not only violated the rights of the men held at Guantánamo. It also has deprived survivors of the 9/11 attacks and families of the dead of their right to justice. While the 9/11 case remains mired in pretrial hearings, with the latest judge saying the actual trial will not commence until at least late 2022, US federal courts have prosecuted hundreds of defendants on terrorism-related charges, including in complex and high-profile cases such as the first World Trade Center bombing in 1993.[189] To be sure, terrorism-related prosecutions in US federal court have their share of flaws.[190] But had the September 11 defendants been prosecuted in federal court from the start, their trials almost certainly would have concluded years ago.

Survivors and family members of 9/11 victims struggle even to have their day in court in pretrial proceedings. Seats are limited at the small courthouse at Guantánamo, so survivors and relatives of the dead must enter a lottery to attend a hearing in person. Their only other option is to watch the proceedings through closed circuit television channels at a small number of US military bases or at the Pentagon. While some relatives of 9/11 victims laud the military commissions, others have expressed frustration at the delays, and others still, including some members of the group 9/11 Families for Peaceful Tomorrows, have said that the problematic proceedings contribute to their anguish.[191]

“What has slowly been revealed – year after year – is the lack of care and foresight invested in getting this right,” the group’s co-founder, Colleen Kelly, whose brother was killed on 9/11, told us. “There’s an emotional and psychological cost to the lack of accountability, and the use of a military commission system that has lost all legitimacy.… But the biggest cost I suspect is occurring in ways we are not yet aware of – what happens to a nation's collective conscience and moral compass when those responsible for horrific wrongdoing are never held accountable? This slow erosion of justice is eating away at our soul, and my heart.”[192]

Elizabeth Miller, whose father was killed on 9/11, said the torture of defendants left her doubtful that justice can ever be served. “Losing my father was a traumatic experience,” she said, “but the actions that the US has taken following 9/11, that’s the wound that will never heal.”[193]

Leila Murphy, whose father was killed on 9/11, said she became upset attending pre-trial hearings at Guantánamo because the prosecution team repeatedly told her and the other family members in attendance that they were fighting for her rights as a victim, yet did not consult her on their strategy – including their pursuit of the death penalty, which she opposes on principle. “Being there as a victim really hits home that nobody is actually advancing your interests,” she said. Instead, she said, she felt her name was “used” to “justify acts that you have no relationship with or control over and don’t want to happen.”[194]

The use of military commissions and other due process failures have stalled accountability for other mass-casualty attacks as well. For example, nearly a decade has passed since the arraignment of a man held at Guantánamo who is accused in the bombing of the USS Cole that killed 17 US sailors off the coast of Yemen in 2000.[195]

Under pressure from families of 9/11 victims and a bipartisan group of US lawmakers, Biden in September ordered the FBI and other relevant government agencies to release within six months long-classified documents relating to the attacks.[196] The families and members of Congress have said they believe the documents will detail connections between the government of Saudi Arabia and the 19 alleged hijackers, 15 of whom were Saudi.[197] The first released document, from 2016, shows a closer relationship than had been previously disclosed between the hijackers and two Saudis, including one with diplomatic status, but does not directly link those attackers to the Saudi government.[198] Biden’s move, while welcome, is only one modest step toward closing the post-9/11 accountability and transparency gaps.

Costs to US Influence and the International Human Rights System

The US unlawful renditions, detentions, and interrogations since 9/11 and its failure to end impunity for these crimes undermine the very human rights principles that Washington historically championed and that Obama and Biden pledged to re-embrace. These practices also threaten the international treaties and monitoring bodies that the US was deeply involved in creating in the aftermath of World War II with the aim of upholding rights for everyone. By flouting the Geneva Convention prohibitions on inhumane treatment of prisoners and unlawfully attacking civilians, expanding the so-called War on Terror to groups that did not exist at the time of 9/11 and to areas far from any recognized battlefield, circumventing minimum due process standards enshrined in the ICCPR, equivocating on consideration of torture-tainted evidence despite the Convention Against Torture’s clear prohibition on its use in proceedings, failing to respond to questions from the Committee Against Torture on CIA abuse, and bullying the International Criminal Court rather than genuinely investigating grave abuses abroad by its own military and intelligence agents, the US has made it easier for other countries to deflect international condemnation of their own serious human rights violations.

Of course, many countries practiced abhorrent detention and brutal interrogation and flouted international legal standards and institutions long before 9/11. But by institutionalizing these practices over three successive presidencies, the US has signaled to the rest of the world and to its own security and intelligence services that the universal rights it purports to champion are dispensable when countering Islamist armed groups.

Not surprisingly, this has undercut the US government’s credibility when it calls out other countries for carrying out their own abuses.

“The devil preaches!” wrote the editor-in-chief of state-owned Al-Ahram, Egypt’s largest daily, in a 2010 editorial excoriating the Obama administration for urging greater freedoms in the Arab world while failing to close Guantánamo.[199] Fast-forward to the Biden presidency and Al-Ahram was still promoting that narrative. “At a time when the US directed accusations against Egypt,” a pro-government member of parliament wrote in an Al-Ahram column, “it ignores the countless violations in Iraq, Afghanistan, Abu Ghraib prison, Guantanamo Bay and others!”[200]

In June 2021, following a meeting with Biden, Russian President Vladimir Putin deflected a media question about Russia’s human rights record by raising the continuing US operation of the prison at Guantánamo.[201]

Cuba has also jumped on abuse at Guantánamo to deflect US criticism of Cuban rights abuses including its persecution of political prisoners. “There is one place in Cuba where torture occurs,” read the headline of a column in the official Communist Party mouthpiece Granma, following the graphic testimony of Guantánamo detainee Majid Khan in October on his torture in CIA black sites years earlier. “The country that threatens Cuba… has no moral authority to demand anything from anyone. Do as I say and not as I do – a saying that seems fit the empire’s actions perfectly.”[202]

China has long used the so-called War on Terror and the detention of 22 Muslim Uyghurs from Xinjiang province at Guantánamo to justify its mass surveillance, internment, and indoctrination program against Uyghurs and other Turkic Muslims, which Human Rights Watch has found to be crimes against humanity.[203] In 2019, Shohrat Zakir, the official overseeing camps unlawfully detaining as many as 1 million Uyghurs in Xinjiang, similarly criticized US legislation calling for the camps’ closure as hypocritical in light of US counterterrorism measures and detentions at Guantánamo.[204]

Post-9/11 Abuses by US Security Allies

Many of the countries that carry out enforced disappearances, unlawful indefinite detentions, torture, and fundamentally flawed trials in the name of national security are close US counterterrorism allies. While in some cases, the US has sought to curb these abuses, often to little avail, in others it has shown a willingness to overlook them.

Mass Detentions and Flawed Trials

In northeast Syria, the Kurdish-led Syrian Democratic Forces, which partnered with the US-led International Coalition Against ISIS to rout ISIS from its so-called caliphate, has for more than 2.5 years held about 45,000 foreign ISIS suspects and family members in deeply degrading, life-threatening and in many cases inhumane conditions, with no access to courts to challenge the legality and necessity of their detention. Most of the foreigners are Iraqi while nearly 14,000 others are men, women, and children from nearly 60 countries as far flung as Australia, Canada, France, Egypt, Morocco, South Africa, Trinidad and Tobago, Tunisia, and the U.K. Of the non-Iraqi foreigners, nearly 12,000 are women and children held in locked camps, while the rest are men and boys held in severely overcrowded prisons.[205] Only a few countries, including Russia, Kazakhstan, Tajikistan, and Uzbekistan, have brought home significant numbers of detainees.[206] While there are no allegations that the detaining forces are conducting abuses of the kind that blighted the Bush presidency, the inaction of countries whose nationals are held in northeast Syria risks creating a Guantánamo 2.0 with an exponentially larger number of detainees, most of them children. Allies have for the most part ignored repeated calls by Washington for them to repatriate their nationals. Few have taken up the US military’s offers to help them do so.[207]

In Iraq, more than 50,000 people were detained as of September 2021 for links to ISIS or other terrorism-related charges and half were sentenced to death, according to the country’s Ministry of Justice.[208] At least 20,000 were detained since 2013.[209] The prisoners reportedly include more than 700 foreigners.[210] Many defendants were reportedly detained because their names appeared on inaccurate wanted lists or because they were family members of listed suspects.[211] The detainees include more than 900 children.[212] At least 280 of those convicted of terrorism had been executed as of January 2021.[213]

Many defendants have been convicted of membership in or support for ISIS rather than for specific crimes.[214] Not one has been convicted of grave international crimes, for example for the mass conversions, sexual enslavement, and killings of Yezidis, which amount to war crimes and may be crimes against humanity or part of a genocide.[215]

Defendants are often held incommunicado in inhuman conditions.[216] Defense lawyers’ access to their clients’ case files is severely restricted.[217] Convictions are largely based on secret testimony or confessions.[218] The courts can convict children as young as nine years old.[219]

Judges have routinely handed out life sentences or even the death penalty to lower-level foot soldiers or cooks, mechanics, and cleaners.[220] They have been observed issuing such sentences without first considering defendants’ testimony that their confessions were extracted through torture, or that their affiliation with ISIS was involuntary, or even their only way to survive in areas the group controlled.[221] Iraq has not prosecuted widely reported war crimes by Iraq armed forces and allied militia.[222]

Nigeria has held at least 6,500 Boko Haram suspects in military prisons, some for up to nine years without charge.[223] The security forces also detained more than 3,600 children for months or years for alleged Boko Haram ties. The children were held incommunicado and often without charge in severely overcrowded and squalid detention centers, and have alleged that they were beaten and lacked enough food. Half of the children reportedly were released in 2019 and 2020.[224]

After years of inaction, the Nigerian authorities prosecuted more than 1,660 alleged Boko Haram members in three mass trials in 2017 and 2018, resulting in approximately 360 convictions. Most of the other cases were dismissed for lack of evidence, and scores were adjourned. Sentences ranged from 3 to 60 years in prison.[225] The government has repeatedly postponed further prosecutions.

Federal High Court judges conducted the mass trials but in makeshift courts on a remote military base, making them inaccessible to victims and family members. Defendants described being held incommunicado in overcrowded military barracks for months or years without charge. They said torture was widespread and that some prisoners were dying of hunger, thirst, and inadequate medical care.[226]

Most of those convicted were lower-level suspects found guilty of membership or providing non-violent support to Boko Haram for acts such as repairing vehicles, washing clothes, supplying food, or failing to provide the government with information about the group despite the risks of reprisal.[227]

The courts lacked official interpreters and many defendants did not see a lawyer until the day of the trial.[228] Convictions were based solely on coerced confessions.[229] Proceedings lasted mere minutes.[230] Most charges lacked specific details, and judges at times failed to consider whether the accused had joined or supported Boko Haram involuntarily.[231] The courts ordered most of the defendants whose cases were dismissed to nevertheless undergo “rehabilitation” despite the lack of evidence against them.[232] Only 10 members of the Nigerian military reportedly have been prosecuted for serious counterterrorism-related offenses.[233]

Nigerian soldiers and security agents have carried out rape and other acts of sexual violence against women and children detained for links to Boko Haram, including many who were abducted by the group, with no accountability. Soldiers reportedly have demanded sex from the women in exchange for food, soap, and other necessities, and the promise of freedom.[234]

In Somalia, intelligence agencies have held children incommunicado, beaten or threatened them, forced them to sign confessions, and denied them lawyers during trial if they suspect them of links to Al Shabab, even when the group abducted the children and forced them to fight.[235]

Egypt’s systematic counterterrorism abuses include mass detention and torture of civil society members in squalid prisons in the name of countering the Muslim Brotherhood, a group Egypt brands as terrorist; apparent extrajudicial executions disguised as shootouts with Muslim Brotherhood “terrorists”; war crimes against inhabitants of North Sinai, home to an ISIS affiliate; and executions of defendants following flawed mass terrorism trials.[236]

The Egyptian government’s dismissal of basic rights extended to its abuse of a visiting American man whom its security forces arrested in 2013, apparently by mistake, in a crackdown on an anti-government sit-in. Despite repeated appeals from Washington to release the man, Egypt held him for more than five years without trial. A year after his conviction on bogus charges in a flawed mass trial, the man died in an Egyptian prison in 2020 after going on hunger strike.[237]

Abuses of Former Guantánamo Detainees

Despite diplomatic assurances between Washington and receiving governments for humane treatment, many foreign authorities have abused the men whom the US transferred to third countries or their countries of nationality after detaining them for years without charge at Guantánamo.[238]

At least 19 men – one Russian and 18 Yemenis – whom the US ostensibly transferred for “rehabilitation” to the United Arab Emirates between 2015 and 2017 have told family members that the Emiratis detained them without charge in undisclosed locations. The Yemeni men even said they preferred returning to Guantánamo to remaining in the UAE.[239] In 2021, the UAE transferred the 18 Yemenis to their war-torn homeland, apparently against their will.[240] One of the men reportedly was so severely traumatized he did not recognize family members and once home fled, only to be kidnapped by the Houthis, an armed group fighting UAE-backed forces in Yemen.[241] The remaining man held by the UAE, a Muslim Tartar and former soldier and ballet dancer who fled Russia for fear of persecution, reportedly faces forcible repatriation to Russia despite grave risks of abuse there.[242]

In 2021 several UN independent human rights experts called on the UAE to not forcibly repatriate the Russian and Yemeni detainees, noting that that they face “a risk of torture and ill-treatment” in their countries of origin.[243]

Men repatriated from Guantánamo have also been treated harshly by authorities in their countries of nationality. Mohamedou Ould Slahi of Mauritania, for example, was repatriated from Guantánamo in 2016 after the US held him for more than 14 years without charge. Under reported pressure from the US, Mauritania for three years refused to provide Slahi with a passport he had sought to travel abroad for medical treatment.[244] Slahi suffered from back pain resulting from an operation at Guantánamo.[245]

Few Consequences for Allies’ Abuses

Successive US presidents since 9/11 have further lowered the bar for other countries by making tepid attempts at best to impose consequences for counterterrorism allies’ abuses. The US continues to provide well over $1 billion annually in aid to Egypt, nearly all of it security assistance, and senior officials have largely refrained from robust condemnations of President Abdel Fattah al-Sisi although he has ushered in the country’s worst human rights abuses in decades. In September 2021 the Biden administration froze $130 million in aid until Egypt meets certain – undisclosed – human rights benchmarks, far short of the freeze of up to $300 million that Congress had approved.[246]

In contrast to the Trump White House, the Biden administration has called out Saudi Arabia on its deplorable human rights record, which also includes unlawful detentions and torture of activists and others falsely labeled terrorism suspects, and flawed mass terrorism trials and executions.[247] Notably, it also has temporarily frozen a large sale of offensive weapons to Riyadh over human rights concerns. But in November it approved $650 million in missiles and missile launchers to the kingdom for “defensive purposes.”[248] Moreover, the US has sidestepped calls for sanctions against the de facto Saudi leader, Crown Prince Mohammed bin Salman, notwithstanding a US intelligence assessment that he approved the killing of the journalist Jamal Khashoggi.[249]

Torture as a Boon to Armed Extremist Groups

Islamist armed groups have also profited from US abuses since 9/11, making these practices not only unconscionable and unlawful but also counterproductive. ISIS has used these abuses as a propaganda tool to both lure recruits and justify its own abhorrent acts, for example by putting hostages from the US and other countries in orange jumpsuits, such as those worn by prisoners at Guantánamo, before executing them.[250]

As a group of US security, intelligence, and interrogation professionals wrote in a joint statement upon the release of the Torture Report summary, torture can “serve as a foundational theme for recruiting campaigns designed to attract others to violent extremism” and “invites reciprocity” by armed groups holding US captives. For those being subjected to abuse, “[t]orture and other forms of abusive or coercive techniques often serves to strengthen an individual’s resolve to resist [and] deepen his commitment to a cause,” they said.[251]

To be sure, a range of reasons, many unrelated to US acts or policies, have compelled people to join armed groups such as Al Qaeda, ISIS, Boko Haram and Al Shabab. But abuses by US forces have undoubtedly fueled grievances within marginalized Muslim communities and contributed to the Islamist armed extremist narrative that the US and its Western allies are waging a crusade against Muslims.[252]

“Perceived US abuses of and lack of due process for detainees at Abu Ghraib and Guantanamo Bay” remains “a key driver” of foreign terrorist fighters to Iraq and is “undermining international confidence in the United States' ability to conduct an effective war on terrorism that remains true to American values,” a confidential US diplomatic cable warned as far back as 2006.[253]

Torture is also ineffective, prompting its victims to say anything, even if it is false, to get their torturers to stop the pain.[254] As the declassified summary of the Torture Report notes, at no time did the CIA’s coercive interrogation techniques produce intelligence of an imminent threat. Rather, according to the CIA’s own memos, those held in CIA black sites in response to 9/11 who provided significant accurate intelligence did so prior to or without having been subjected to “enhanced interrogation techniques.” Conversely, multiple CIA detainees fabricated information under and following torture, resulting in faulty intelligence including on critical issues such as terrorist threats.[255]

Recommendations

It is not too late for the US to mitigate some of the damage from its unlawful detentions, torture, and other violations of the rights of both victims and suspects. The Biden administration should promptly implement measures aimed at ending crimes and violations perpetrated under the rubric of the War on Terror, including unlawful air strikes and raids that kill or injure civilians both in and out of recognized war zones. Those reforms should include increasing transparency and accountability when operations go awry.

Biden should stand firm on his vow to close the US prison at Guantánamo and end the deeply flawed military commissions system. He should send the prisoners who cannot be prosecuted home – or to third countries should repatriation present risks of torture or other ill-treatment. The president should press Congress to lift the ban on transferring the rest to the US for prosecution in federal courts without using torture-tainted evidence, and, for those convicted, to serve their sentences in federal prisons.

If he cannot garner sufficient support from Congress, Biden should use his executive authority to empower the Justice Department to pursue plea agreements in federal courts, through videoconferencing if necessary. In addition, Biden should declassify the RDI program as well as the entire Torture Report, redacting only what is strictly necessary to protect national security, to help provide a full public accounting. Biden should provide redress and rehabilitative services for victims. The President should also acknowledge wrongdoing and apologize to victims of torture and other unlawful practices.

Furthermore, Biden should direct the attorney general to appoint a special prosecutor to conduct a thorough, independent, and credible investigation into US government detention practices and interrogation methods since 9/11, with an eye toward prosecutions. The investigation should examine the role of US officials, no matter their position or rank, who participated in, authorized, ordered, or had command responsibility for torture or ill-treatment and other unlawful detention practices, including enforced disappearance and rendition to torture.

The US Congress should create an independent, impartial commission to investigate enforced disappearances, extraordinary renditions, torture, and other abuses of detainees in US custody since 9/11. Such a commission should hold hearings, have full subpoena power, compel the production of evidence, and have authority to recommend appointing a special prosecutor to investigate possible criminal offenses, if the attorney general has not yet opened such an investigation.

Judicial authorities in other countries should exercise universal jurisdiction, or other forms of jurisdiction as provided under international and domestic law, to prosecute nationals from the US or elsewhere alleged to be involved in serious international crimes against detainees since 9/11. Governments that participated in the RDI program should also ensure impartial and independent criminal investigations into the roles of their own nationals and prosecute those implicated in crimes.

Unless it conducts genuine investigations domestically, the US should encourage inclusion of abuses by US nationals in the International Criminal Court’s investigation of grave crimes in Afghanistan.

While these steps will be politically challenging, they are the only option, should the US wish to uphold the rule of law and its proclaimed values, and protect fundamental rights including the right to life. The only victors in maintaining the status quo are governments seeking justification for unlawful practices in the name of security, and groups like Al Qaeda, ISIS, and their offshoots, which point to US abuses to underscore their narrative that the West is at war with Islam.