Karen Greenberg appeared in a Just Security article about her book Rogue Justice.
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.
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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.
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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).
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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.)