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 21st-century America. The only problem is that no one has bothered to draw it.
Put in a nutshell: the liberties designed almost a quarter-millennium ago by the founding fathers still turn out to be curiously well-aligned with the security of this country and the safety of Americans, while the government overreach of this era has proved to be anything but. As it turned out, those heavy-handed government policies meant to pry our lives open in an invasive and expansive way, torture information from suspects, and lock away people forever, it seems, without charges or trial, were remarkably counterproductive and ineffective—and that reality, rather than the concerns of civil libertarians, was essential to whatever backswing of the pendulum we’ve seen in recent years.
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 US 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 US 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.”
Reversing Government Overreach
For years, there seemed little prospect of a shift back from this period of overreach in the name of national security. True, by the end of George W. Bush’s first term in office, a handful of Justice Department officials, including current FBI director James Comey, and Jack Goldsmith (now a Harvard professor), were trying to revoke, rewrite, or ameliorate some of the worst of those initial excesses, but with only modest success. By 2006, the CIA’s overseas black-site program, in which terrorism detainees were brutally tortured, was ostensibly on its way out and, by the end of the Bush presidency, no more individuals were being sent to Guantánamo. With the passage of time, and the persistence of lawyers at the American Civil Liberties Union, some headway at least looked possible on the restoration of a more normal sense of American justice and the rule of law.
When it came to interrogation and detention, however, the first significant changes—and the promise of more to come—arrived with the Obama presidency. He entered the Oval Office declaring torture once again illegal, withdrawing the memos that supported its use (though his Justice Department would never prosecute any of the torturers, no less the officials who had set them loose to do so), and promising to close Guantánamo, the country’s prison of choice when it came to indefinite detention. Meanwhile, a 2008 Supreme Court decision, Boumediene v. Bush, seemed to mark the beginning of a pendulum swing back in the direction of liberty. It granted habeas rights to Guantánamo detainees, enabling them for the first time to challenge their detentions in the federal court system.
As it turned out, however, these initial signs of change proved deceptive. The only court authorized to hear such habeas challenges to detention—the US Court of Appeals in Washington, DC— has essentially ensured that there will be no legal relief or recourse for the Guantánamo detainees. To date, nearly half of those who have sought habeas relief have had their claims rejected outright or on appeal.
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 whistle-blower 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.
What Actually Keeps Americans Safe
Legal, political, and moral challenges to government excursions into the unlawful have been crucial in these years in keeping both the costs and grisly realities of such overreach in the public eye. Yet it would be a mistake to look to either protests or lawsuits for the real reasons why the CIA’s torture program and the NSA’s mass surveillance of American telephone habits were shut down. They were ended for a far simpler reason. Experts in national security concluded that they simply did not work, that they were hopelessly inadequate measures for preventing terrorism.
In several government reports, the failures of both the torture and the surveillance programs to produce tangible results were repeatedly noted by experts, analysts, and officials. In the case of torture, the Senate Foreign Relations Committee, under the direction of Diane Feinstein, completed a 6,000-page report detailing the evolution of torture policy after 9/11 and its grim use on individual detainees. The report’s more than 500-page executive summary, released to the public, condemned the Bush administration’s use of torture, declaring that “CIA personnel, aided by two outside contractors, decided to initiate a program of indefinite secret detention and the use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values.” In every instance, the report concluded, the program did not produce useful information of any sort that led in any way to the stopping of terror attacks or plots. In the words of the report, “The Committee finds, based on a review of CIA interrogation records, that the use of the CIA’s enhanced interrogation techniques was not an effective means of obtaining accurate information or gaining detainee cooperation.” If anything, those brutal techniques only alienated allies, while adding fuel to the fire of anti-American sentiment worldwide.
So, too, for surveillance. Immediately following the Snowden revelations in the late spring of 2013, Obama appointed the President’s Review Group on Intelligence and Communications Technologies, five experts in national security and the law, to review two of the NSA programs that had been exposed. Their report revealed that the bulk telephone metadata collection under the Patriot Act simply did not work. It had provided neither actionable information nor aid in thwarting up terror plots. Another report issued by the Privacy and Civil Liberties Oversight Board, a post-9/11 government group mandated to “review and analyze actions the executive branch takes to protect the nation from terrorism,” similarly found that the program was thoroughly ineffective. It concluded: “Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.”
In other words, like the torture program, the metadata one simply didn’t perform as advertised in preventing terror attacks. Those very governmental excesses that human rights and civil liberties advocates identified as extralegal, unconstitutional, and outside the bounds of international human rights law were also programs that just didn’t work as security measures—and this, not government overreach, was the crucial factor in bringing each of them to an end.
That the conclusions of the experts (and the officials listening to them) coincided with the recommendations of civil libertarians, who had opposed the policies all along, made the decisions look far more like human rights victories than they were.
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 United States 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.