Two days later, they came for her husband, just as she knew they would. It was the woman’s mother-in-law who called Almut Rochowanski, the New York City lawyer who had started an organization for Chechen refugees: “The FBI has taken my son.” Rochowanski arranged for a lawyer from the Massachusetts branch of the American Civil Liberties Union to step into the FBI’s interviews as the man’s representative, and the FBI soon seemed to lose interest in the man, but for his mother, Rochowanski told me, “It was just repeating what had happened to her other son and husband in Chechnya.”
A short while later, Rochowanski and the ACLU put together a one-page Russian-language memo on how to act when the FBI comes to your door. Most important point: “You don’t have to let them into your home.” Other most important point: “You don’t have to go with them.” But, sighed Rochowanski, “most are too intimidated not to let them in.”
ROCHOWANSKI HAD TRAINED as a lawyer in her native Austria, then continued her studies at Columbia and ended up spending many years working in and around the North Caucasus, which boasts some of the world’s highest concentrations of uniforms per square kilometer, but she had never spent time dealing directly with law enforcement. “It’s the first time I became intimate with this,” she told me. Up close, it was not pretty. “You don’t want to think that they take a kid in their early twenties and interrogate him for eight hours without giving him a drink of water. Which probably amounts to torture. But then you hear about it and you think, ‘Right, this is how law enforcement works: it breaks people down.’”
Rochowanski is wrong, legally speaking: these coercive interrogation practices used by the FBI in the course of the War on Terror would probably not be considered torture if an international court were to review them. A possible exception, according to legal scholars Philip Heymann and Tom Lue, is the prolonged withholding of medical treatment, which has been a part of the interrogators’ repertoire. In 2003, the United States Supreme Court took up the question of coercive interrogation practices in the case of Chavez v. Martinez but was unable to render a majority decision. Six separate opinions resulted. The question of whether it is constitutional for law enforcement to employ such techniques as sleep deprivation, the withholding of treatment, and hooding remained open.
After the attacks of September 11, 2001, the United States declared the War on Terror. “Terror, like fear, is an emotion, so declaring war on an emotion is hardly a strategy conducive to success,” snapped terrorism scholar Louise Richardson in a 2006 book. President George W. Bush’s 2002 National Security Strategy narrowed the focus of the so-called war, but only slightly: “The enemy is terrorism—premeditated, politically motivated violence perpetrated against civilians.” Unlike terror, terrorism is not an emotion but rather a phenomenon, or even an instrument, but that does not make it any easier to fight. And as Heymann has pointed out, declaring war against an enemy who is not a state or a person or a group of people makes it impossible to determine when the war has been won—or lost, or otherwise ended.
President Barack Obama’s National Security Strategy, published in 2010, retrospectively redefined the War on Terror as “a war on al-Qa’ida and its affiliates” and responded to Heymann’s criticism: “This is not a global war against a tactic—terrorism [sic] or a religion—Islam. We are at war with a specific network, al-Qa’ida, and its terrorist affiliates who support efforts to attack the United States, our allies, and partners.” This may have sounded more specific, but the basic political and legal problems of the war, by then nine years old, remained unresolved. What laws govern an American war against something that is not a state or even a circumscribed entity? And considering al-Qaida’s loose structure, how are the generals and soldiers of this war to define the enemy? A lack of clarity persisted on the issue of the objective, or the end point, of the war: When would it be over? When there are no more attacks on U.S. soil? But for over ten years following September 11, there were no attacks that were attributed to al-Qaida. When there are no more attacks on Americans anywhere in the world? When there is no one left who is capable of launching such an attack? The War on Terror—or on terrorism, or on al-Qaida—remained a shapeless and an endless one.
It is in the nature of terrorism to engender an outsize response. “A little bit of terrorism goes a long way,” writes Heymann.
Even small-scale terrorism possesses an almost magical ability to produce fear, anxiety, anger, and a demand for vigorous action in a sizeable portion of a country’s population. A handful of terrorists led Canadian Prime Minister Pierre Trudeau to declare a state of emergency in Quebec province [after the kidnapping of two government officials in October 1970]. Belgium responded powerfully to a similar concern flowing from an equally small group [following the 1981 bombing that killed three and injured 106 people outside a synagogue in Antwerp]. The Red Army Faction, which preoccupied Germany for more than two decades, rarely had more than a few active members. Even the Provisional IRA at its most active in Northern Ireland involved only hundreds, not thousands, of armed opponents of the British government.
And a nineteen-year-old kid escaping on foot compelled the governor of Massachusetts to put the state’s largest city on virtual lockdown—what seemed like a reasonable safety measure at the time but was also one of the most extraordinary curtailments of liberty experienced by Americans in living memory.
Perhaps it is just too frightening for most people to believe that a small group—or just a pair—of ordinary people using means most of us could have at our disposal and following a plan that spanned barely an afternoon could inflict so much pain and suffering on so many. Behind such great fear, surely there must be an equally great threat.
Using the language of war when talking about terrorism enabled the Bush administration to draw on the practices of war as well. The legal waters were murky, particularly because much of what was being called war was taking place on U.S. soil, and the enemy was ill-defined. Immediately following the September 11 attacks, the president claimed the right to detain anyone, including United States citizens on American soil, indefinitely without charges. And since this was war, the president also wanted detainees who were not U.S. citizens—but who may have been longtime legal residents—tried by military tribunals, which would have extraordinary powers and whose proceedings would be closed to the public. Some of Bush’s more far-reaching measures were rolled back over the following few years, but the practice of targeting noncitizens—“investigative profiling on the basis of immigration status,” in Justice Department terminology—persisted. This happened in part because, unlike such extraordinary measures as the indefinite detention of citizens, the indefinite detention of noncitizens in practice required no change in the law. For the majority of the more than twelve hundred aliens detained in the wake of September 11, visa violations or other immigration-status irregularities could be found to justify detention. For the rest, a novel way of applying an existing statute was introduced: simply by being noncitizens they became, in the eyes of the law, witnesses who might not be available to testify unless detained. An untold number of people were deported after being detained. Testifying before the National Commission on Terrorist Attacks Upon the United States, in December 2003, Heymann pointed to this cycle—detention, closed hearing, deportation—as one of the greater threats to liberty contained in new antiterrorist policy and practice, calling it “what amounts to a claim of a right to make individuals disappear from American society on executive orders and without the public openness that is necessary for trust in the legitimacy of your government.”