Twenty-five years after the shock of al Qaeda’s crimes against humanity, which killed nearly three thousand people on September 11, the United States’s totalizing military response has never come to an end. On the contrary, despite decades of elite hand-wringing over the “forever wars,” we continue to live in a world of U.S. national security exceptionalism. The toll is visible on the battlefields we created and still produce, the prisons and torture sites we secreted and never closed, the constitutional protections we abandoned and have not restored, and the human rights principles we vitiated and still struggle to defend.
When families of those murdered by ICE today have no legal recourse, you can thank a quarter century of national security exceptionalism.
The military invasions of Afghanistan and Iraq and the pervasive drone warfare in Yemen and Pakistan are only the most obvious faces of the “Global War on Terrorism” initiated by the administration of George W. Bush. Its consequences include the direct killing of nearly a million people, predominantly Muslim and almost half of them civilians, and the destruction of the livelihoods of several million more; the indefinite detention of hundreds of Muslim men in a prison at the U.S. Naval Base in Guantánamo Bay, Cuba, in order to escape the jurisdiction of U.S. courts; the circumvention of basic human rights treaties, including the Geneva Conventions and the Convention Against Torture, in establishing an archipelago of secret detention sites run by the CIA to carry out torture; the use of extrajudicial “extraordinary renditions” of alleged terrorist suspects for detention and interrogation by regimes with documented histories of human rights abuses; the “targeted” killings of non-uniformed individuals, including U.S. citizens; the mass surveillance and registrations of Muslims, along with unbridled data surveillance of all U.S. citizens, authorized by statutes like the Patriot Act, many of whose core powers remain in effect; and the militarization of municipalities across the country with weaponry most associated with quelling foreign insurgencies.
The architecture of this all-encompassing militarism rested on an authoritarian premise, articulated by government lawyers like John Yoo and David Addington: that power begins and ends with the executive branch, with no intermediary checks. Congress’s 2001 Authorization for Use of Military Force, which handed over unprecedented powers to the president, has never been repealed, and the American Servicemembers’ Protection Act of 2002 (better known as the “Hague Invasion Act”), which flouted the authority of the International Criminal Court to hold U.S. military personal and government officials accountable, has symbolized decades of impunity. The failure to hold the perpetrators of war-on-terror atrocities accountable—condoned in President Barack Obama’s sunny proclamation about the “need to look forward as opposed to looking backwards,” even as he would go on to wage a vast targeted killing campaign and fail to close Guantánamo—gave sanction to the soft authoritarianism of the Bush administration, greasing the constitutional skids for the hard, more explicit authoritarianism and lawlessness of the Trump administrations. Today, the rampant demonization of Arabs and Muslims accelerated by the war on terror remains visible in the U.S.-enabled genocide in Gaza and unprovoked war of aggression against Iran.
In all this, save for some isolated examples ensuring lawyer access to Guantánamo detainees, the courts have proven feeble checks on executive power, as those of us fighting on the legal front lines saw firsthand. A corpus of doctrines, sharpened and expanded over the last quarter century, are responsible for this national security regime. Their names are fusty-sounding, Dickensian abstractions: the political question doctrines; qualified immunity; state secrets; derivative sovereign immunity; battlefield preemption. Collectively and by design, these doctrines prevent human rights cases from getting beyond these procedural thickets to a trial that can evaluate the legality and harm of executive branch abuses as against their real-world human victims—even those abuses the courts concede as a factual matter. This regime is said to be justified by the limited competencies of judges to evaluate fraught decision-making in connection with foreign relations or wartime: war is hell, and that is that. In reality, abdicating a judicial role in enforcing human rights norms only fuels the ambitions of an imperial court that chooses to align with the foreign policy ambitions of an unchecked executive.
To be sure, the modern Supreme Court has limited access to courts for all civil rights litigants. But appeals to national security have restricted them even further, reflecting a racialized conception of the nation-state’s authority to exclude others through the construction of executive plenary powers. For just one example out of dozens, consider Ziglar v. Abassi, a case that the Center for Constitutional Rights—where I now serve as legal director—filed in 2002, suing the architects of the brutal, discriminatory post-9/11 roundups and detention of Muslim men in New York. After fifteen years of litigation, the Supreme Court not only ruled that the victims could not sue; it broadly neutered the power to sue federal officials for damages arising from constitutional violations. When families of those murdered by ICE have no legal recourse, you can thank national security exceptionalism and the imperial court. (I develop these concepts more fully in a forthcoming article in the Yale Law Journal Forum.)
The architecture of this all-encompassing militarism rested on an authoritarian premise: that power begins and ends with the executive branch.
As a result of decisions like these, not a single case of the many dozen brought by survivors seeking accountability for torture and other crimes in the post-9/11 era had been heard by a jury until 2024. In April of that year, and then again, after a mistrial, in November, Iraqi citizens Salah Al-Ejaili (formerly an Al Jazeera journalist), Suhail Al Shimari (a middle-school principal), and Asa’d al Zuba’e (a fruit vendor)—all victims of horrific torture and abuse at Abu Ghraib prison some twenty years earlier—took the stand in the federal courthouse in Alexandria, Virginia, in another decades-running CCR case. They testified against a private military contractor, CACI Premier Technology, which had provided contract interrogators to support U.S. Army intelligence at the prison some twenty miles west of Baghdad. As first reported in The New Yorker, U.S. military generals investigating what they characterized as “sadistic, blatant, and wanton criminal abuses” at the prison had identified CACI personnel who collaborated with Army personnel like those depicted, smiling, in notorious photographs leaked by a whistleblower and broadcast on 60 Minutes II in 2004.
To hold the perpetrators to account and seek some measure of justice, Al-Ejaili and his co-plaintiffs brought suit against the multibillion-dollar corporation under a once powerful human rights law, the Alien Tort Statute (ATS). Passed in 1789 by the first U.S. Congress, ATS provided foreign nationals access to U.S. courts for violations of fundamental human rights norms. At the time, the newly formed federal legislature wanted to reassure foreign powers that the United States would take international law seriously by providing a U.S. forum for foreign nationals to sue U.S. actors. Since 9/11, the ATS, like so many other human rights protections, has been steadily undermined by the exceptionalist canon in the judicial system, in deference to the foreign policy interests of the executive and the business interests of corporations. But Al Shimari v. CACI tested the capacity of the courts to hear such claims, and the lower courts handled them with creativity, rigor, and a commitment to principles of justice.
All in all, the plaintiffs beat back over twenty-five motions to dismiss the case filed by CACI and survived six trips to the court of appeals. Freed from the fusty doctrines only lawyers and judges could invent, the jury listened to testimony about what actually happened to these human beings—and the malice of CACI’s actions, deflections, and cover-ups—and found the company liable for conspiracy to commit torture and cruel, inhuman, and degrading treatment, awarding each of the victims $3 million in compensatory damages and $11 million in punitive damages (the latter total effectively matching the value of CACI’s contract with the government). The company filed an appeal, which took over another year to litigate, and this March, the court of appeals upheld the jury verdict in all respects.
This was an important victory: for the victims, for human rights, for democracy and the rule of law. As Elaine Scarry argued in these pages in 2008, just before Obama was elected:
It is the rule of law that has been put in jeopardy by a project of executive domination; it is the rule of law that will continue to be in peril; and it is only, therefore, by addressing the crimes through legal instruments—through a formal, legal arena, and not simply through the electoral repudiation of bad policy—that the grave and widespread damage stands a chance of being repaired.
National security exceptionalism gains strength as a self-fulling prophecy: because there are no examples of human rights cases that reach the merits, courts can continue to assert, without evidence, that judicial review of such claims will imperil the republic. Al Shimari provided powerful evidence to the contrary: courts can and should take human rights claims seriously.
But this case, too, was ultimately undone by national security exceptionalism. This April—a month after the appeals court upheld the jury’s verdict—the Supreme Court heard arguments in Cisco v. Doe, a case suing the network technology company Cisco Systems for aiding and abetting the Chinese government’s persecution of the Falun Gong spiritual movement, also on ATS grounds. As a result, CACI filed for a rehearing before the appeals court. By June, Amy Coney Barrett, writing for the Supreme Court’s 6–3 majority, dispatched with two decades of precedent, effectively deciding that the only valid international law claims under ATS are three specific causes of action identified from the eighteenth-century context (such as piracy), excluding among the most heinous of modern international law violations: torture. “The Court today closes the courthouse doors not just to respondents,” Sonia Sotomayor wrote in vigorous dissent, “but to virtually every future litigant seeking redress for a violation of international law under the ATS.”
Freed from the fusty doctrines only lawyers and judges could invent, a jury listened—proving that courts can and should take human rights claims seriously.
As with reproductive rights and many other constitutional protections, the Court froze human rights norms in historical amber at the same time that it empathized with the interests of businesses rather than with their victims. On the same day, the Court greenlit a suit by ExxonMobil against Cuban state-owned companies for the expropriation of assets in 1960, seeking more than $1 billion. The Court thus revealed, in the classic formulation of Hannah Arendt, who it thinks has the “right to have rights.” And with this late-breaking Supreme Court ruling, the appeals court that had upheld the jury verdict against CACI issued a two-page unsigned order late last month, reluctantly vacating the jury verdict against CACI and the $42 million award to the victims.
This shocking turn of events—equal parts arbitrary and cruel—demonstrates the ever-expanding reach of national security exceptionalism. But the Virginia jury’s conclusion that CACI conspired to commit torture at Abu Ghraib remains, regardless of the Supreme Court’s jurisdictional decision. Beyond low-level Army personnel who were court martialed and imprisoned, the company remains the only entity to have been held to account in any legal procedure for its role in the post-9/11 human rights crisis. As Al-Ejaili explained following the dismissal of his cases: “We trusted a U.S. jury with our stories, and they believed us and sided with us—this is the most important part of the case. History will show that it was the Supreme Court that denied us justice.”
Such impunity paves the way for the next human rights atrocity—and it should remind us that the courts, especially this Supreme Court, are not reliable protectors of disfavored populations. The historic jury verdict holding CACI liable, like the overwhelming opposition to Trump’s war on Iran and to U.S. support for Israel’s atrocities in Gaza and the West Bank, reflects the widespread and growing resistance to militarism and the horrors it inevitably breeds. What’s missing are powerful institutions, movements, and parties that can channel and champion this conviction. The forever war will not end until we all end it.
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