When Center on National Security Director Karen J. Greenberg started the project that would become her new book Rogue Justice: The Making of the Security State, she endeavored to explain why then Attorney General Eric Holder blamed Congress—not a broken court system—for his reluctant decision to prosecute Guantanamo prisoners in military commissions rather than in civilian courts. Tracing Holder’s actions back to the days after 9/11, Greenberg observed domestic terror suspects’ court proceedings, conducted hundreds of interviews, and sifted through thousands of pages of government documents, discovering “a worse story than I had known.
In the 15 years since 9/11, a certain degree of implicit knowledge has existed that torture, domestic mass surveillance, drone strikes on foreign soil, and indefinite detention at Guantanamo Bay were “outside norms” of American law, Greenberg said during her book’s launch event at Fordham Law on June 1. Yet people in positions of power either closed their eyes to the realities around them or tried to effect change and then chose to keep their mouth shut after realizing they could not fix the situation.
Once she observed the security state as a whole, Greenberg told the audience, she clearly saw moments when the abuses to the courts system and Constitution could have been stopped—a realization that made her “angrier” than when she first started.
“We don’t realize what we’ve given up,” Greenberg said. “We’ve accepted compressions that were not worth accepting. We’re nowhere near reconstituting the free space we existed in and the expectation of justice we had.
“As long as Guantanamo remains open there’s very little chance of us remembering who we are,” added Greenberg, whose previous book, The Least Worst Place: Guantanamo’s First 100 Days, was published in 2009.
Nestor Davidson, associate dean for academic affairs at Fordham Law, introduced Greenberg as one of the Law School’s “leading lights,” praising her work leading the globally recognized Center on National Security and for engaging students and providing them valuable career advice.
Greenberg spoke with David McCraw, assistant general counsel for the New York Times, who facilitated conversation on the import of the Ahmed Ghailani trial in New York, President Obama’s legacy on Guantanamo, and Greenberg’s response to a review in The Guardian that says Rogue Justice lacks heroes. She acknowledged that national security is a hot topic to broach because proponents of its two main arguments—national security versus citizens’ rights—publicly rebuke each other’s stance and rarely find common ground.
For years after 9/11, American courts, with the exception of the Supreme Court, deferred to the president on matters of national security, Greenberg said, describing this pattern of behavior as antithetical to a “robust, protective court system.” This deference allowed, for instance, the NSA to spy on Americans’ telephone communications, one of the many revelations brought forth by Edward Snowden, who Greenberg labeled as one of Rogue Justice’s heroes. She later noted mentions in the press that the Obama administration could possibly strike a deal pardoning Snowden, a statement that drew audience applause.
Greenberg also characterized President Obama as one of the book’s heroes for his behind-the-scenes actions commissioning a report on post-9/11 surveillance policies that led to reforms brought forth by the USA Freedom Act. However, she criticized the president on Guantanamo, stating that his support for indefinite detention several months into his presidency showed him at odds with his campaign promise of closing the detention camp. In the past, fear of political repercussions—not terrorism—made Guantanamo “intractable,” she said, but indicated that that ‘s beginning to change.
The Obama administration has also fallen short of its goals to prosecute Guantanamo detainees in civilian court for crimes against America. The turning point came in November 2010, Greenberg noted, after a federal jury found Ghailani, a Tanzanian national, not guilty on all but one of 284 charges related to the 1998 attacks on U.S. embassies in east Africa that killed 224 people. He was acquitted on all murder charges.
Though Ghailani received life in prison for conspiring to destroy government buildings and property, the Obama administration has not prosecuted another Guantanamo detainee since in federal court.
“It’s the message the government got,” Greenberg explained. “Don’t go there. Don’t go into the courtroom.”
Terrorism is not the greatest danger American society faces today, Greenberg said in response to a student’s question about the potential for martial law in the future. This opinion is in marked contrast from those of people who profit from the military industrial complex and want people to stay fearful.
“Don’t be scared,” Greenberg said as a parting message to the audience.
