Hina Shamsi on the Militarization of Policing and Foreign Policy

This podcast episode includes references to the Eurasia Group Foundation, now known as the Institute for Global Affairs.

Show notes:

Audio and transcript of Dr. Martin Luther King Jr.’s speech “Beyond Vietnam -- A Time to Break Silence” on the “giant triplets” of racism, militarism and materialism (4/4/67)

Archival audio:

CBS News: Concerns Raised Over Militarization of Local Police Departments (6/8/20)
CNBC: How The Defense Industry Profits From Militarizing The Police (6/8/20)
AJ+: Why Did Hundreds Of Innocent Muslim Men And Boys End Up At Guantanamo? (11/25/18)
WTVF: Trump Ends Restrictions On Surplus Military Equipment For Local Law Enforcement (8/28/17)
CBC News: History of Guantanamo Bay (5/13/15)
CNN: Torture report: CIA methods ineffective (12/19/14)
PBS NewsHour: Why military equipment is in the hands of local police (8/14/14)

Transcript:

August 4, 2020

HINA SHAMSI: They are claiming more based authority and power to kill in countries in which—and with which—we were not at war, exacerbating violence. Invoking the laws of war where the laws of war don't apply fundamentally undermines the rule of law, and at its face, this harms international peace and security.

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MARK HANNAH: My name is Mark Hannah, and I'm your host for None of the Above, a podcast of the Eurasia Group Foundation. Earlier this year, the police killings of George Floyd and Brianna Taylor touched off some of the largest protests in American history and shone a spotlight on police brutality and militarization. Our guest today has dedicated her career to fighting human rights abuses at home and abroad, from police violence to extrajudicial killings and torture. Hina Shamsi is the director of the ACLU's National Security Project and an adjunct lecturer at Columbia Law School. Very glad to have you with us.

I want to talk a bit about the militarization of different local police forces throughout the country. And for that story, I guess we'll begin with the Insurrection Act of 1837, the context in which it was passed, and how President Trump is able or not able to invoke it today to quell these protests. So what is this Insurrection Act, and what is its purpose?

SHAMSI: Yeah. To oversimplify in the interests of keeping it brief, the Insurrection Act was passed at a time when there was a lot more trust of who the president was vis-à-vis what was happening in the States. So it's part of our story of federalism and how the militia clauses in the Constitution interpreted how we have a federal military versus police powers at the state level. But fundamentally, one of the things Congress has done is to recognize that in this country we have enormous and significant distrust of domestic deployment of the military on domestic soil. One of the ways in which that is expressed is the Posse Comitatus Act. It's a criminal statute that prohibits direct involvement of the military to enforce the laws unless Congress is permitted, with some exceptions. And the Insurrection Act is one of those exceptions. Again, passed at a different point in history, it was actually a number of acts together. We're using the Insurrection Act of 1837 in some senses to show that's also the operative text. But what it does is it gives really significant authority to the president to call out the centralized military in response to mass disturbances and unrest. It has been abused at various points in our history.

It has been used for other purposes to enforce court order desegregation over the objections stated. What Trump was threatening to do is something that would be unconstitutional, which is invocation of the Insurrection Act to deploy the federal military to suppress protests.

HANNAH: Was the ACLU prepared to go after him in that case? Were there any conversations you were having with your colleagues about taking the president to court?

SHAMSI: Yes, in those conversations. But I think I would be remiss if I didn't also say that there are multiple ways in which we're talking about checks and balances and the rule of law. And this also connects back to the use of lethal force. Congress and courts have overly written results out of the equation, not acting as sufficient checks on executive power. And so one of the considerations is always what are the immunity and other doctrines administrations are going to invoke? And the courts have given deference to certain constitutional contexts. Domestically, you would hope Congress wouldn't acquiesce to the executive as much as they have with respect to killing of black and brown people overseas. But that's one of the ongoing challenges.

HANNAH: I want to talk about the 1033 program.
Interlude featuring archival audio

HANNAH: I don't know whether this is an unhappy byproduct of the so-called global war on terror. Was it ever intended that local police forces around the United States would get the surplus military-style equipment? Forget military style—this military equipment would find its way into American cities. Can you just give us a history of the 1033 program and why it's so problematic?

SHAMSI: The 1033 program was put in place during the Clinton presidency in 1997 as part of the National Defense Authorization Act at that time, but its roots really came out of the Reagan era of the war on crimes and war on drugs. And our politicians are very fond of referring to things as war. So that is what its roots are. It’s certainly grown significantly. It is a program by which our Defense Department, the secretary of defense, can transfer excess military equipment to federal, state, and local law enforcement. And what that has done—the spotlight on the 1033 program grew after the militarized policing in response to Ferguson in 2014. It has essentially resulted in paramilitary policing, or it further enabled paramilitary policing and expanded the tools of violence used by police forces today.

HANNAH: Are there organizations trying to abolish it, and what are their prospects, especially given the high-profile nature of these protests in the wake of George Floyds killing? What are the prospects for overturning this particular program?

SHAMSI: That's actually one of the calls many organizations and people protesting against police brutality have, which is to eliminate the 1033 programs. Now, ending the 1033 program won't fix racism, but what it will do is get rid of and hopefully pull back the tools that enable violent and expensive policing.

And, you know, one of the things we need to do is stop thinking about it as tinkering with the kinds of lists of military weapons that will be provided to state and local law enforcement. We need to recognize—as we're being asked to do by protesters and the Black Lives Matter movement—that at its core, modern policing is broken, and we need to divest from programs like this one that enable the massive harms that result in black people being killed and black communities living under the constant fear of being killed or harmed by the police.

HANNAH: Did you yourself get out there in the streets and join these protests?

SHAMSI: Yes. And yes, I joined the protest, as did many others at the ACLU. And for me it was and is really important to do that.

HANNAH: How are these two things linked—the militarization of American police forces and the kinds of ways in which America's military ends up policing the world?

SHAMSI: Essentially, I think the segue between those two things is probably a statement by someone wiser than me—Dr. Martin Luther King Jr., who in his “Beyond Vietnam” speech talked about the scourges of militarization and racism and the ways in which we have to call ourselves to account and draw the connections between what happens abroad and what happens at home.

Interlude featuring archival audio

SHAMSI: That wisdom still has tremendous lessons and resonance today when we have these generational protests, these incredibly inspiring and necessary protests against police brutality and systemic racism against black people and against the impact on black and brown communities, even as we have also, in the last two decades, taken a war-based approach to foreign policy, largely in black and brown countries, Muslim countries.

And a significant part of that has been the use of secretive, unaccountable, lethal force in multiple countries, despite the very huge human, strategic, and policy cost. I talked earlier about paramilitary policing in the court over the course of this war-based approach. The CIA also turned into an essentially paramilitary lethal organization. There are real parallels to be drawn in all of those here.

HANNAH: In your work at the ACLU, did you spend a lot of time talking to people who were the victims of torture?

SHAMSI: The first time I was able to personally see what was happening was at Guantanamo at the military commissions as part of the early generation of human rights NGOs who were allowed to get into Guantanamo to observe the military commissions and experience that discrepancy between what the Bush administration—the government—was saying were humane, lawful policies—and then to see the secrecy, the absurd secrecy, surrounding that entire broken process and to see who was on the stand.

Interlude featuring archival audio

SHAMSI: This is an era where about the only thing that was working in terms of advocacy, with respect to torture, was the constant refrain used often by policymakers and among rights groups—what John McCain had, which was, “It's not about them. It's about us.” And what he meant is that we are not the people who tortured our members—sitting on the military commissions, looking at who was in the dark and thinking, “Who's ‘them,’ and who's ‘us?’ And how dehumanizing is this?”

HANNAH: Why do you think they were drawing that distinction?

SHAMSI: Part of it was dehumanization. Part of it—though I think we didn't really call it that at the time, but it was—is the element of guilt by association and racism that underlies so many of the approaches in the last two decades. Part of it was a blinkered view of American exceptionalism that in many ways still continues.

HANNAH: What do you mean by that? What is this blinkered view of American exceptionalism?

SHAMSI: That Americans are the heroes in this story instead of the perpetrators of terrible violence that set out to break the minds and bodies of our fellow human beings. But on that, there was an interesting parallel because some of the first detainees who were able to get out and who were talking about what they experienced in Iraq and Afghanistan—some of my clients in the early years—describe a scene where… I remember one particular client, Iraqis. His first shock was when an American military service member hit him—and hit him hard. And he said, “That was something I might expect from the Saddam Hussein regime. The rhetoric of the Americans was something so different.” And my client, Mohamedou Ould Salahi, writes about something very similar in his book Guantanamo Diary, which went on to become a New York Times bestseller. He writes about that perception of what Americans were supposed to be and then his experience of what it actually was.

HANNAH: I wondered how much you attribute that to the disconnect between the policymakers in Washington, D.C.—what somebody like Ben Rhodes has coined or dubbed the Blob—and the actual people, the service members who are sort of the implementation arm of these national security policies. Do you think there is a way in which America's military is insulated from or not listening to these kind of lofty or heady policy discussions, or that the policy establishment in D.C. is so out of touch with what's being done in their name, in the name of the American people?

SHAMSI: Well, I think many in the policy establishment in D.C. are out of touch. That said, I don't want to downplay the role of people who were within the establishment, including in the military, including other agencies at the time who objected and who at various different points, prevented policies from being carried out before they were overturned by leaders such as Donald Rumsfeld and others in his office. And I think some level of that key phrase continues. When we think about, for example, lethal force policy, there have only been very, very few times where policymakers, members of Congress, and others have heard directly from people who are on the receiving end of massive American lethal force and what that means. So there is a profound disconnect. And certainly during the early years when I was having conversations with people, especially in the military or foreign departments—not just American, but of other countries—there was a deep, deep unease and recognition of heading in the wrong direction from a significant number of people. But that trajectory also ended up being very hard to stop. And here we are still today with the Trump Administration, for example, overturning even the weak, self-imposed policy constraints the Obama Administration placed on itself in response to controversy, litigation, and advocacy with respect to people's rights in countries around the world.

HANNAH: Can you give us an example of where the American military is wading into and conducting these attacks, whether from air or from the ground? Maybe an obvious example against brown and black people in the world?

SHAMSI: Well, we can start with the first known drone strike, which was in 2002 by the Bush Administration in Yemen. That was at a time when we were not at war with—or in—Yemen, and that then-expanded to the use of force.

And I don't just say drone strikes anymore, because the same issue arises when using a drone as when using helicopter, gunship, or whatever other weapon it is—so, similar uses of force both in and outside of recognized armed conflict. So, well, now in Iraq and Afghanistan, but also contributing to what then became one of the worst—the worst—humanitarian disaster in that country, but also in Pakistan, in Niger, in Somalia, and in Libya. And so this expansive notion that the U.S. needs to have the capability and ability, in the name of so-called counterterrorism, to use lethal force against people who are terrorism suspects, putting aside the frameworks of law and the important rules constraining the use of force and protecting right to life.

HANNAH: Would you get rid of drones altogether? Because their proponents would argue, “Well, you know, it's only their execution that has been sloppy. We haven't been verifying that people are indeed terrorists. But what if we did? If we had human intelligence to suggest they were, these are weapons with much greater precision and less possibility of civilian casualties.” What do you say to those people?

SHAMSI: That's something I've certainly heard a lot about—the reliance on precision. Precision in important ways is beside the point, because what we're actually talking about when you're talking about what grew from what used to be exceptional and criticized under Bush, to expansive and massive under Obama, to far greater use in greater secrecy under Trump—it’s a killing program. Right? It's a killing program where our government is invoking cherry-picking the most permissive aspects of various legal frameworks to permit killing without abiding by any of the restrictive aspects. And let me sound a little bit less like a lawyer and say that they are claiming more based authority and power to kill in countries in which—and with which—we're not at war, exacerbating violence and resulting in killings of civilians. And no matter who you are talking about, you cannot comply with human rights law in this way. Invoking the laws of war where the laws of war don't apply fundamentally undermines the rule of law. This harms international peace and security.

HANNAH: OK, and now it's time for a round of extraneous and miscellaneous questions for which we expect spontaneous answers. You are our first guest of season two of None of the Above. This is a battery of questions we will be putting to every guest throughout the season.

The one book about America and the world you would require both presidential candidates to read?

SHAMSI: Guantanamo Diary by my client Mohamedou.

HANNAH: Done. The worst American foreign policy blunder of the past one hundred years?

SHAMSI: There's so many.

HANNAH: OK, OK. One piece of professional advice that you wish you had received as you were coming up?

SHAMSI: As I was coming up in my field, I had very, very few role models who were women of color trying to do this work and doing this work. So I would say—in addition to doing all of that hard work to make sure you try to get everything right—have confidence.

HANNAH: And who is a role model for the work you do?

SHAMSI: It's hard for me to name any particular person. I would name the categories of people—teachers, people who have gone before me in doing clinical work in law school, and then colleagues, team members every single day at the ACLU.

HANNAH: Do you think this outlook of—Madeleine Albright referred to the United States as an indispensable nation, and a lot of people both on the left and the right continue to assert that without America leading the world, somehow other countries will devolve into a state of chaos and anarchy. I wonder whether you think this presumption—that without American leadership, the world will be a very dark place—is itself inherently racist.

SHAMSI: There is a significant part of that orthodoxy that to me, as a student and a human rights lawyer, reeks of a racist savior dynamic. And I will say that American humbleness and willingness to listen to other countries seems critically important as part of how—if and when we come out of this, including hearing from and learning from the people we have subjected to two decades worth of war. I would be very concerned if there is a period of looking forward, not backward, that either doesn't listen to what the lessons are—the costs, human strategic policy—or does not listen and continues devaluing the viewpoints of those on the receiving end of American power.

HANNAH: You've argued, and a lot of people have argued, that the authorization for the use of military force back in 2001—which still exists and is still being used to justify a lot of these military misadventures overseas—should be repealed.

And one question then arises: if it is repealed—if the AUMF is repealed—should it be replaced? And if so, with what? Essentially, what would govern American use of force overseas in your ideal world?

SHAMSI: The 2001 AUMF does need to be repealed. And if we are going to fundamentally rethink these failed approaches and do real service instead of lip service to human rights and rule of law, one of the things that also needs to happen is more power to reform to ensure Congress plays the role it is supposed to play with respect to the massive and significant power to declare war, and to prevent further expansion and restrict the growth of executive power at the expense of Congress, the courts, human rights, and people's lives.

HANNAH: And what do you think is the likelihood that Congress will give itself back that power, which it has essentially abdicated, and which the Constitution gives it? Do you think that is realistic in the U.S.? Do see that as a possibility?

SHAMSI: It is more likely now than it has been for a very long time. And I think part of what we're looking at—and I hope for—is a period where, much like after the Vietnam War and Civil Rights and the abuses of state power that existed then, there were reforms. Part of what we've seen are important votes by Congress with respect to Yemen, war powers of the president with respect to Iran, and certainly, I think, more openness to the reformation of a broken war powers resolution and system which has not acted as it should as a check on the presidency.

HANNAH: Hina, thank you so much for joining us.

SHAMSI: My pleasure. Thank you for having me.

HANNAH: You can follow Hina’s work at the ACLU's National Security Program website, and she's also on Twitter @HinaShamsi. You can find those links in the podcast description on our website noneoftheabovepodcast.org.

This has been another episode of None of the Above. I want to give a special thanks to our None of the Above team: our producer, Caroline Gray, editor Luke Taylor, mixer Zubin Hensler, and our summer research assistant Keenan Ashbrook, who made this possible. If you enjoyed what you heard, we'd appreciate you subscribing on iTunes, Google Play, Spotify, or anywhere else you find your podcasts. And if there is a topic you want us to cover, shoot an email at info@egfound.org. Thanks for joining. Stay safe out there. See you next time.

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