Panel Discusses the War on Terror’s Legacies

At the Nov. 11 Human Rights Workshop, panelists Fionnuala Ní Aoláin, Diala Shamas, and Kristine Beckerle spoke about the far-reaching implications of U.S. domestic and foreign policy in the 20 years since the September 11 attacks. The speakers focused on the expanding reach of national security and counterterrorism as mechanisms for penalizing dissent within a nation’s borders and for justifying violence beyond them. 

“The result has been the abuse of counterterrorism around the world, the enabling of authoritarians, the shrinking of civic space, and the hollowing out of democracy around the globe … civil society is the target, and counterterrorism is the governance mode,” Ní Aoláin said.

Ní Aoláin, Professor of Law at University of Minnesota Law School and United Nations Special Rapporteur on Human Fundamental Rights and Counterterrorism, analyzed the contemporary challenges civil society faces against “counterterrorism architecture.” She recalled that in the aftermath of 9/11, the Bush administration populated the Guantanamo Bay detention camp, expanded surveillance, and refused to comply with the Geneva Conventions. 

“Twenty years ago, 9/11 led to the use of force under chapter 7 of the United Nations Charter on Afghanistan, against the Taliban,” she said. “Today, the military takeover of Afghanistan by the Taliban leads to fundamental questions about U.S. involvement there.” 

Ní Aoláin cited a recent journal article she wrote on the role of “soft law” standards that have allowed state officials to justify counterterrorism measures. She described how new counterterrorism institutions have increased the number of public-private partnerships that change the way states work by excluding civil society. Post-9/11 institutions are hierarchical, masculine, and exclusive, according to Ní Aoláin, and, as a result, they are not dedicated to implementing human rights norms. 

“States are given the opportunity to define whomever they like as a terrorist,” she said. 

Given the lack of legal clarity around the definition of terrorism, the Israeli government, for instance, has designated six Palestinian human rights organizations as threats to national security, Ní Aolán said. 

“The criminalization and designation of Palestinians as terrorists is a hallmark of what we have seen across countries,” she noted.

Shamas echoed Ní Aolán’s observation regarding the Israeli government’s classification of Palestinian human rights organizations as terrorists and believed this example to be illustrative of “how counterterrorism laws end up shrinking civil society space.” A staff attorney at the Center for Constitutional Rights, Shamas focuses on how counterterrorism and law enforcement efforts affect Muslim communities, activists, and organizers in various movements in the U.S. She explained how Israel vilified these organizations as fronts for a “Marxist political party,” and, as a result, the U.S. Department of State also designated these human rights defenders as terrorists in line with Israel’s policy. 

While these formalized designations are baseless, Shamas said, “the harms are really significant.” She pointed to a lawsuit brought by the Jewish National Fund against the U.S. Campaign for Palestinian Rights alleging under U.S. law that the Palestinian organization has been “aiding and abetting terrorists.” Shamas said that “it doesn’t really leave any room to reach any other conclusions than this is a form of harassment.” She continued, “Even though the court found the facts in the case unconvincing, we are still sinking resources and time into defending this litigation.”

Allegations of “aiding terrorists” can create other challenges, too. Ní Aolán noted that in Afghanistan’s case, sending aid to the poverty-stricken country could now constitute aiding terrorists, though over half of the population lack food security. 

Beckerle, the Cover-Lowenstein Fellow at the Schell Center, spoke about the war on terror from her perspective as the former Legal Director of Accountability and Redress for Mwatana for Human Rights, an independent Yemeni rights organization. 

“The war on terror has sort of infected and affected the ongoing conflicts,” she said. 

She explained that the war has posed “real challenges to civil society and humanitarian actors trying to operate generally and particularly in this space.” Mwatana for Human Rights, for instance, struggled to open a bank account “because banks refuse to touch” Yemen, according to Beckerle.

Despite the Biden administration’s claim to have ended the “forever wars,” Beckerle said, U.S. troops have retained the power to carry out drone strikes and efforts to seek some form of accountability for these strikes are ongoing. She explained that what was unique about the recent coverage of the U.S. strike in Afghanistan was not the civilian casualties nor the U.S. government’s lies in the aftermath of the attack: “the unique thing is that people are paying attention to it … it’s covered by big U.S. newspapers.” 

Beckerle recalled that when working for Mwatana for Human Rights, Mwatana documented as much information as they could about recent drone strikes in Yemen and presented it to the U.S. military. They conducted interviews and site visits for two years to collect information on 12 cases of U.S. drone strikes and ground raids in an effort to persuade the U.S. military to acknowledge that it had harmed civilians, not combatants, violated international law, and should ensure accountability and reparation. 

Generally, Beckerle said, the U.S. military “had total discretion to say who they killed, if they were a civilian or combatant, and what should be done in response.” In one U.S. drone strike that Mwatana documented, the U.S. killed a child and wounded another. Yet, Beckerle recalled, the U.S. military responded simply that Al-Qaeda recruits children. The apparent target of the strike worked for the U.S.-allied Yemeni military and made monthly visits to a Yemen military base, raising questions as to whether the U.S. was using lethal force where capture would have been feasible. 
“There was nothing else to do to contest what they were saying,” Beckerle said. 
Even when the U.S. military did acknowledge its civilian casualties, it refused to offer any “form of remedy or condolence payments” because the U.S. military claimed that they were “worried that money will go to extremist groups.” 

Beckerle emphasized that U.S. counterterrorism employs a “broad strokes approach to the country,” in many cases viewing Yemeni actors with a kind of blanket suspicion, and offering few, if any, avenues that human rights activists or impacted civilians can access to contest the U.S. military’s claims or seek justice and remedy. 

Beckerle explained that other States have learned from the U.S. counterterrorism architecture.  Saudi Arabia and the United Arab Emirates, for example, have imitated the U.S. military’s response, or lack thereof, to civilian harms. 

“There’s an established architecture on how to use legal force, but no legal architecture on the other side to remedy [violations when they occur],” she concluded. “How do we address the systemic problems within that system?”

The Human Rights Workshop is a weekly series of the Orville H. Schell, Jr. Center for International Human Rights.