Long before the war on terror, there was the war on crime. And as much as 9/11 was a watershed event, many aspects of the nation’s response to the terrorist attacks find longstanding precedent in the American criminal justice system.
In his article “Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible,” Georgetown Law professor and former public defender James Forman Jr. argues against the widely accepted notion that “the war on terror represents a sharp break from the past, with American values and ideals ‘betrayed,’ American law ‘remade.’” Forman continues: “While I share much of the criticism of how we have waged the war on terror, I suspect it is both too simple and ultimately too comforting to assert that the Bush administration alone remade our justice system and betrayed our values.” Instead, he believes, "our approach to the war on terror is an extension — sometimes a grotesque one — of what we do in the name of the war on crime”:
"By pursuing certain policies and using particular rhetoric domestically, I suggest, we have rendered thinkable what would otherwise have been unthinkable. Moreover, as the world’s largest jailer, we are increasingly desensitized to the harsh treatment of criminals. We have come to accept such excesses as casualties of war—whether on crime, drugs, or terror. Indeed, more than that, we no longer see what we do as special, different, or harsh. Certain practices have become what David Garland calls “the taken-for-granted features of contemporary crime policy.” In part for this reason, despite the mounting evidence regarding secret memos, inhumane prison conditions, coercive interrogations, and interference with defense lawyers, the Bush administration’s approach to the war on terror went largely unchecked and unchanged." (H/T Prison Law Blog)
Berkeley professor Jonathan Simons, in his 2007 book "Governing Through Crime: How the War on Crime Transformed American Democracy," also looks for the roots of these “excesses,” and locates them decades prior to the terrorist attacks. ”Fear of sudden and terrible violence was a major feature of American life long before September 11, 2001. The collapsing towers were only the latest — and most lethal — of a series of spectacular scenes of violence that have unfolded at the centers of our large cities since President Kennedy was shot to death in Dallas with a mail-order rifle in 1963.” In the subsequent decades, Simon writes, “Americans have built a new civil and political order, values like freedom and equality have been revised in way that would have been shocking…in the late 1960s, and new forms of power institutionalized and embraced — all in the name of repressing seemingly endless waves of violent crime.” Simon continues:
"The terror attacks of 9/11 have created a kind of amnesia wherein a quarter-century of fearing crime and securing social spaces has been suddenly recognized, but misidentified as a response to an astounding act of terrorism, rather than a generation-long pattern of political and social change. Just as we now see the war on terrorism as requiring a fundamental recasting of American governance, the war on crime has already wrought such a transformation — one which may now be re-legitimized as a “tough” response to terrorism."
Many historians trace the birth of the war on crime to the mid-1960s — specifically, to Barry Goldwater’s 1964 presidential campaign, with and his rhetoric of “crime in the streets” and the need for “law and order.” Since that time, politicians have increasingly exploited the fear of violent crime and its perpetrators to institute ever more draconian laws and policies. The war on crime was soon joined by its partner the war on drugs, which was launched by Richard Nixon and gained traction during the Reagan Administration. One crime bill after another was passed with broad bipartisan support, and more and more federal and state monies were poured into expanding law enforcement and building and maintaining prisons. Between 1970 and 2005, the U.S. prison population grew by 700 percent.
Even as crime rates declined sharply in the 1990s, a Democratic president, Bill Clinton, championed two of the harshest pieces of criminal justice legislation ever passed: The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), passed after the Oklahoma City bombing with broad bipartisan support, undermined the habeas corpus rights of U.S. prisoners long before the Bush Administration sought to withhold them from “enemy combatants.” AEDPA placed severe limitations on prisoners’ ability to challenge death sentences — or life sentences, or any unjust convictions — in federal courts, even when they had new evidence of their innocence. The Prison Litigation Reform Act (PLRA) also passed in 1996, was intended “to deter inmates from bringing frivolous lawsuits,” said the New York Times in a 2009 editorial. “What the law has done instead is insulate prisons from a large number of very worthy lawsuits, and allow abusive and cruel mistreatment of inmates to go unpunished” long before the advent of Guantanamo Bay, Abu Ghraib, Bagram, and the black sites spawned by the war on terror.
Anne-Marie Cusac, who spent the decade prior to 9/11 reporting on prison abuses on American soil, wrote in "The Progressive" after the Abu Ghraib scandal broke, “Reporters and commentators keep asking, how could this happen? My question is, why are we surprised when many of these same practices are occurring at home?” Cusac continues:
"In February 1999, the Sacramento Sheriff’s Department settled a class-action lawsuit alleging numerous acts of torture, including mock executions, where guards strapped inmates into a restraint chair, covered their faces with masks, and told the inmates they were about to be electrocuted.
When I read a report in The Guardian of London of May 14 that it had “learned of ordinary soldiers who . . . were taught to perform mock executions,” I couldn’t help but remember the jail.
Then there’s the training video used at the Brazoria County Detention Center in Texas. In addition to footage of beatings and stun gun use, the videotape included scenes of guards encouraging dogs to bite inmates.
The jail system in Maricopa County is well known for its practice of requiring inmates to wear pink underwear, and it is notorious for using stun guns and restraint chairs. In 1996, jail staff placed Scott Norberg in a restraint chair, shocked him twenty-one times with stun guns, and gagged him until he turned blue, according to news reports. Norberg died. His family filed a wrongful lawsuit against the jails and subsequently received an $8 million settlement, one of the largest in Arizona history. However, the settlement included no admission of wrongdoing on the part of the jail.
The Red Cross also says that inmates at the Abu Ghraib jail suffer “prolonged exposure while hooded to the sun over several hours, including during the hottest time of the day when temperatures could reach 50 degrees Celsius (122 degrees Fahrenheit) or higher.” Many of the Maricopa County Jail system inmates live outdoors in tent cities, even on days that reach 120 degrees in the shade. During last year’s heat wave, the Associated Press reported that temperatures inside the jail tents reached 138 degrees."
Cusac goes on to document other abuses familiar to U.S. prisoners as well as foreign detainees, including stress positions, torturous restraints, rape by guards, and long-term solitary confinement. It is no accident that Army Specialist Charles Graner, convicted as the ringleader in the Abu Ghraib prison abuse scandal (and recently released from a military jail at Fort Leavenworth) honed his sadistic skills at Pennsylvania’s state prisons, where guards admitted to beating prisoners and were accused of placing a razor blade in one inmate’s food.
It is no accident, either, that laws passed in the name of terrorism — both the AEDPA and the USA Patriot Act — have been used to trample on the rights of the accused and prosecute ordinary American lawbreakers, including drug offenders and undocumented immigrants, far more than to round up actual terrorists. If the war on crime fed the war on terror, the war on terror has also expanded and re-legitimized the war on crime. All this has happened with the approval of both political parties, virtually guaranteeing that the legacy of 9/11 will be an endless war at home, as well as abroad.