Fordham Law Center on National Security Director Karen Greenberg wrote an op-ed for TomDispatch about the national security state in a post-9/11 world.
One vivid image of the historical relationship between government power and individual liberties in America has long been the swing of the pendulum. It catches the nature of the perpetually changing balance between the two. When it comes to terrorism and civil liberties after 9/11, that pendulum swung strongly toward the power side of the equation and it has been slow indeed to swing back. Still, in several areas in recent years — torture, detention, and surveillance — there has been at least some movement in the other direction and from this delayed and modest backswing, there is a distinct lesson to be drawn about liberty and security in twenty-first-century America. The only problem is that no one has bothered to draw it.
After 9/11, of course, few could have missed which way that pendulum was swinging. Government overreach in the name of our “security” was quickly apparent from the passage of the Patriot Act, a grab bag of some of the more oppressive proposals for “security” floating around Washington at that time, to the setting up of CIA “black sites” beyond the reach of American law where brutal interrogations could be used. In a similar fashion, the Department of Justice secretly authorized novel readings of presidential power that justified, among other things, the warrantless, bulk surveillance of Americans and non-Americans alike; consigned individuals in U.S. custody to what was politely called “indefinite detention” at a newly constructed prison in Guantánamo Bay, Cuba, and in military brigs at home; and opened the way for the torture (under the euphemism of “enhanced interrogation techniques”) of terror suspects in U.S. custody, including people who turned out to be innocent of anything having to do with terror. All such acts, secret and open, were justified in the name of what was called the Global War on Terror and on the grounds of keeping the country “safe.”
While Obama’s torture ban remains officially in place, the absence of any accountability for the torturers has opened a space for the future return of such techniques, particularly with a President Trump who, as a candidate, embraced torture “and worse.” And when it came to indefinite detention, Obama, once an opponent of the practice, essentially accepted it in the late spring of 2009 by acknowledging that some Guantánamo detainees could not be prosecuted, but were too dangerous to release. Today, were Guantánamo to be closed (still possible but an increasingly unlikely prospect), indefinite detention without charges or trial would remain an option for the detainees, even if in a different prison.
On surveillance policy, there has more recently been some movement towards the liberty side of the pendulum. In 2015, two years after NSA whistleblower Edward Snowden revealed the existence of a massive program used to collect the telephone metadata of Americans in bulk, an appellate court declared the program — established under section 215 of the Patriot Act — illegal. It pointed out that the laws cited by the government to support it had never previously “been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.” A month later, section 215 was “sunsetted” when Congress did not move to renew the Patriot Act. Like torture, such bulk surveillance has now, however provisionally, been officially restored to its status outside the law.
This surely was cause for a sense of accomplishment among human rights activists and civil libertarians. They had, it seemed, had an impact. Though a distinctly limited victory (given the still expansive possibilities for governmental surveillance in post-9/11 America), it felt like a long sought-after triumph, and in many ways it was. But to grasp what’s really been going on, it’s necessary to look beyond the protests of constitutional scholars, rights activists, and others.
There’s a lesson in all this that should be given some thought. When civil libertarians defend their side of the liberty-security debate, they usually claim that liberties are just as important as security. Perhaps what they should be saying is that protecting our liberties means ensuring our safety; that surveilling everyone produces more but not better information and is not a national security measure; and that the informed interrogation of prisoners who have rights, including the right to a fair trial, is not only more consonant with the American way, but more effective than secret prisons and physical abuse.
The kinds of policies that the U.S. developed after 9/11, and that former Bush officials and others are still demanding back, were clear expressions of fear and a lack of confidence in the traits that America had prided itself on since its inception. It should by now be far clearer that needing to know everything to know something is a sign of weakness, not strength; that needing to be a bully instead of a smart operative is a sign of insecurity, not security.
It’s been 15 years since 9/11 and yet few have noticed the obvious. Where the power of the national security state has been curtailed, it’s been for a simple enough reason: undeniable ineffectiveness. Put another way, the biggest lesson of 9/11 has yet to be learned. It’s a curious fact that what’s actually lawful and mindful of liberty has turned out to be what also makes us more secure against our enemies. In these years, safety and liberty have been anything but incompatible, even if few are saying that.
What should be seen as incompatible with liberty and safety is the overreach of the state in the name of ensuring both of them. It was that overreach, not our liberties, which made us less secure. So let’s note it carefully: the Founding Fathers were right and the Bush administration, its Justice Department memos, and more recently, the candidate who has called for ever more extreme measures, supposedly to protect us and our country, will only endanger us further. Let’s take this lesson to heart: liberty is security for Americans.