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The Patriot Act claimed vast powers for law enforcement and further confused the lines between war and justice, privileging security over civil liberties
Karen J. Greenberg is the Director of the Center on National Security at Fordham Law and the author of Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump (2021).How language changed laws and norms after 9/11.
One of the biggest – and to date unacknowledged – casualties of the war on terror has been the abuse of language. In the wake of 9/11, imprecise and vague terms, confusing terminology, and repurposed words became a much-used subtle tool. With vagueness and imprecision in hand, officials stealthily bypassed laws, avoided norms, and approved expansive policy measures. A successful tactic, it’s one that haunts us to this day.
An initial misuse of language to avoid limits appeared in the very first congressionally approved document of the war on terror – the Authorization for the Use of Military Force (AUMF), passed one week after the attacks. The 2001 AUMF was spectacularly vague. It did not use the word “war.” It did not name a precise enemy. Nor did it establish geographical limits or posit markers for the end of hostilities.
Yielding to vagueness in this fundamental document in the war on terror, the AUMF enabled Presidents Bush, Obama and Trump to broaden the war on terror well beyond Afghanistan to Pakistan, Somalia, Yemen and elsewhere. These administrations did so using means of warfare that were not available at the outset of the war, notably in use of lethal drone strikes. This authorization is still with us today.
In announcing the war effort to Congress and the nation, President Bush followed down the path of imprecision, confounding notions of “war” and “justice.”
“Justice will be done,” President George W. Bush promised Congress and the American people on September 20, 2001, preparing the nation for war abroad and on the home front.
Attorney General John Ashcroft followed suit, adapting the language of war to pursue the “enemy” at home, empowered by the Patriot Act which he described in warlike terms as a strategy designed “to fight and to defeat terrorism.” Named to rouse the passions tied to warfare, the legislation further confused the lines between war and justice, privileging security over civil liberties.
The Patriot Act claimed vast powers for law enforcement, pushing aside constitutional protections against warrantless surveillance and preventive detention while lowering thresholds for investigations. Putting a fine point on the open-ended possibilities that imprecision could spawn, the Act did not define the word “terrorist.”
So, too, the attractiveness of imprecision was apparent when Guantanamo Bay Detention Facility opened its gates to “the worst of the worst” in January 2002.
Military leaders charged with overseeing the arriving prisoners were warned about using language that was overly specific. Under no circumstances, the commanding general was told, were they to use the word “prisoner” to refer to the incoming captives. To do so would trigger the protections of the Geneva Conventions for prisoners of war. The nebulous term “detainee” would, in the minds of the Pentagon, enable Guantanamo to skirt international laws.
Nowhere was the abuse of terms more egregious than in the creation and implementation of the torture policy that was authorized by the Department of Justice in 2002. The novel term “enhanced interrogation techniques” was created to replace torture and thereby to justify beatings, waterboarding (mock drowning), sleep deprivation and other forms of cruel and inhumane treatment used at CIA black sites and at Guantanamo Bay – all outside of the laws that the word “torture” would invoke.
Nor did President Obama fully break the disconnect between language and meaning in the war on terror. On the one hand, he ordered that future interrogations recognize the ban against torture that existed under the federal torture statute and the Convention against Torture, thereby restoring the term to the practices that had ensued.
But Obama succumbed to the powers of imprecision when it came to his targeted killing policy which relied upon a redefinition of “imminence” as a justification for the lethal strikes. Rather than denote something about to happen, Obama’s version of imminence connoted something that, given certain bad actors intentions, could someday occur.
Throughout the war on terror, this intentional confounding of words and their meanings set the country on a path that has yet to be reversed. Whatever future challenges may face the country, the imperative of clarity and precision in making laws, in defining the limits of authority, and in describing reality, should be paramount as the country endeavors to move beyond the era of 9/11.
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