“It’s lovely to live on a raft. We had the sky up there, all speckled with stars, and we used to lay on our backs and look up at them, and discuss about whether they was made or only just happened.”
– The Adventures of Huckleberry Finn
For people not intimately involved in national security debates, and who haven’t closely followed how we arrived at the modern security state, the decade-and-a-half following the surreal terror of September 11 have felt like an unmoored drift, a country floating aimlessly, if recklessly, down a river of indecision. The internet’s rising ubiquity, followed by the dominance of social media, allowed many of us to unwittingly shrug off privacy concerns, while simultaneously ignoring others’ indefinite detention, the torture of strangers, and sky-borne assassination overseas, until we looked around and the sky was speckled with revelations. It’s easy to feel like the new relationship we have with our government “only just happened.”
In Rogue Justice, Karen Greenberg, the director of the Center on National Security at Fordham University School of Law, puts that feeling of aimless drift mostly to rest. This detailed and meticulously researched book shows how the willingness to make every citizen a suspect, and to give the executive branch immense powers to surveil, detain, torture, and murder were not just a product of collective fear and indifference, but the deliberate actions of a surprisingly small group of people. I say “mostly” because the decisions were made by officials within the Bush and (to a lesser extent) Obama administrations, but they were also enabled by the assumed (and granted) complicity of many others.
This complicity came from careerists worried about rocking the boat, politicians in both parties worried about being painted as weak on terror (with notable and noble exceptions), and to an uncomfortable extent, the general public. The terrorist attacks in 2001 made everyone realize that anyone could be a target, but we didn’t see — or didn’t want to see — that in a very real way, we also became a target of the government. Many of the policies enacted in the wake of 9/11 made everyone a suspect as much as a target. Through official secrecy aided by general indifference, we allowed ourselves to be passively dragooned into being on both sides of a war.
Sprinting Toward Grey Areas
Greenberg begins, of course, on September 11, with then-Attorney General John Ashcroft. This is fitting, as it is the perversion and mutation of the Justice Department that makes up her book’s central narrative. The action really starts at a meeting the next day, which — if a new biography is to be believed — is when a fairly meandering President became “the Decider” overnight. President Bush looks right at Ashcroft and says, “Don’t ever let this happen again.”
It’s the “this” that hangs uneasily over Greenberg’s book, as well as the next 15 years of American life. Because while the immediate “this” was the horror of the al-Qaeda attack, there was no shortage of mission creep in the months and years that followed. The “this” became a dangerous nation supposedly having weapons of mass destruction. It became insurgents fighting US troops on their home soil. It became suspected terrorists driving to weddings or releasing slick magazines about weaponized lawnmowers. In short, it became the umbrella under which every national security decision could be made.
As much as anything, though, the expansion of presidential powers was at the forefront of the project. Through the efforts of John Yoo at the Office of Legal Counsel and other Laurence Silberman students (and even Silberman himself through crucial and effectively unappealable Foreign Intelligence Surveillance Court of Review decisions), executive powers were expanded. Memos were written not just to circumvent laws, but to subtly redefine them so that nearly everything the Bush administration wanted to do fell into a legal grey area.
We take many of these grey areas for granted now in ways that have distorted our national dialogue. If Omar Mateen had been captured rather than killed, there would have been an explosive argument about whether he should be treated as an enemy combatant or if he was legally no different than any other mass shooter in the US. What likely wouldn’t get much attention is that the designation “enemy combatant” itself was essentially made up out of whole cloth so captured foreigners and Americans alike would be protected by neither international conventions nor American law. Creating a new category of belligerent was just one of those grey-area decisions that helped put us in a new, ground-shifted world.
Stepping Over the Line
Greenberg’s driving metaphor is that of “the wall”: the legal structures that separated intelligence gathering — with its lower investigatory standards — from criminal investigations. In 2002, the Foreign Intelligence Surveillance Review Court, under Silberman, destroyed that wall. Once it came down, we started existing in a sort of morally blurred borderland. In Greenberg’s telling, if you looked closely enough (and knew what you were looking for), you could make out the brutal grey of Eastern-bloc tumbledown apartments and their companion, an expansive surveillance state. This was the razor-wire land of warrantless wiretaps, the ridiculously named Stellar Wind, and PRISM — the land of the many secretive counterintelligence and counterterrorism programs that have been front-page news for the last several years. Every action taken, every precedent set, every norm violated, came from the decision to cross a line and step into the borderland.
It’s in this borderland that all sorts of grey-area decisions were made. Greenberg has an excellent sense of the absurdity of this, including in the frequent and frustrating hamstringing of prosecutors who believed in the federal judicial system, which had always been able to easily prosecute terrorists. As she says, “The tension between trials, with their transparency requirements, and counterterrorism, with its demands for secrecy, … put prosecutors in a delicate position, one that the [Foreign Intelligence Surveillance Court of Review’s] decision helped to clarify. They were to pursue prevention even at the cost of prosecution. In this sense, they had been conscripted into the war on terror” (p. 62).
The frustrating double standards and legal switchbacks that are prevalent throughout the book seem almost inevitable in this context. Take, for example, the Combatant Standard Review Tribunals (CSRTs) that were set up after Hamdi to provide detainees with an opportunity to challenge their “enemy combatant” status before a neutral decision-maker (pp. 154–57). In theory, this decision-maker was different than The Decider. In practice, it barely seemed so. Evidence wasn’t presented to the detainees’ attorneys. Government claims were taken at face value, even though the whole point of a habeas proceeding — which CSRTs were intended to be a substitute for — is to question those claims. (In 2008, the Supreme Court would decide that the CSRTs were not a constitutionally adequate substitute for habeas, paving the way for Guantánamo detainees to file habeas challenges to their detention in federal court.) Only 10 percent of the nearly 600 hearings resulted in a determination that the prisoner wasn’t an enemy combatant, and when they did, “a meeting was called to focus on ‘what went wrong’” — the “wrong” being why they were exonerated, not why they were arrested in the first place. While the presumption of innocence might not have been a part of the CSRT, the presumption of failure in the case of exoneration seems a bridge too far.
When taken together, the decisions and policies discussed in the book seem like a long bridge that disappears into the fog, with the wave-crashed rocks below each uncertain step. Torture became acceptable on this bridge, as did the killing of Americans with just the President’s approval. As Greenberg points out, the fact that President Obama seems to take this burden very seriously, or at least considerably more seriously than his predecessor, isn’t particularly comforting. While there have been half-hearted (and probably misleading) attempts to make the drone program more accountable, and while the President has banned torture and attempted to make limited surveillance reforms, there is no guarantee his successor will follow even those modest steps toward limiting the security state. Instead of trying to close, or at least shrink, Guantánamo, he or she might double it, literally or metaphorically. They may stop offering even the limited transparency about drone strikes. We still don’t know where our next step will lead — if it will land on firmer ground, still be on that shaky bridge, or send us tumbling down into the sea below.
Mapping a Way out of the Borderlands
Throughout her excellent book, Greenberg talks about how the decisions made after 9/11 were the largest fundamental change in the relationship between citizen and government in US history. Even Lincoln suspending habeas corpus or Roosevelt interning American citizens were done during a war that had a foreseeable end. But not this time. This was a complete redefinition, one in which a small group of people at DOJ and elsewhere in the executive branch perverted their posts in order to fight an unwinnable and ill-defined war against an unknown number of piercing enemies. Suddenly, the government could listen to our calls and read what we wrote. They could label us an enemy combatant and put us in a brig to be tortured, without giving us access to a lawyer, forever. (Or, at least, that’s what the government tried to argue.)
There are heroes throughout the book, from prosecutors and dissenters in DOJ (including, at times, John Ashcroft) to the ACLU and Edward Snowden. But there is also an uneasy sense that they were pretty much alone in trying to stop the government’s veering off the path into a morass of legal grey areas.
I want to go back to where Greenberg stated that prosecutors had essentially been conscripted in the war on terror. I think we all were. Not just because the nature and tactics of terrorism put everyone on the front line. We were all dragged into a war, one in which we were presumed to be potential combatants. We weren’t just targets for al-Qaeda or ISIS. It was assumed that any of us — you, me, but especially the kid at the local mosque — could be an enemy.
And our rights were subsumed to that new idea. That few of us immediately suffered is beside the point. Few of us truly consented to be drafted into that fight, and certainly not by those rules. We were placed there while we were asleep thanks to the deliberate actions of a handful of people.
Much could be written about the public’s indifference or complicity, but the fingers should ultimately be pointed at the leaders who flung their strange stars in all our skies. With Rogue Justice, Karen Greenberg gives us an unflinching document about how that happened, and a roadmap on how to undo it.