The Era of Rogue Justice After 9/11

The Era of Rogue Justice After 9/11

We came perilously close to losing our Bill of Rights protections—and the struggle to restore them is not over.


This article is adapted from Rogue Justice: The Making of the Security State, copyright © 2016 by Karen Greenberg, and published this month by Crown Publishers, an imprint of Penguin Random House LLC.

As Barack Obama’s presidency draws to a close, the flames of the counterterrorism frenzy that were ignited 15 years ago have begun to die down. Neither civil liberties nor the rule of law was consumed. Instead, what lie in the ashes are the most egregious violations of them: torture, mass surveillance, indefinite detention, extrajudicial trials, and indiscriminate drone killings, all of which, after bruising battles, have been reined in, if not abolished.

This might not have been the case had the handful of officials who first objected to these policies at the end of George W. Bush’s first presidential term not worked hard, quietly and without fanfare, to change them. Nor would it have happened if the Obama administration had not been determined to return to the federal courts the jurisdiction that military tribunals and secret law had taken away, and to commission and make public reports, like the inspector general’s account of the National Security Agency’s secret surveillance program Stellar Wind, that detailed the scope of government surveillance.

And, of course, it could not have occurred without the lawyers and activists at organizations like the ACLU and the Center for Constitutional Rights, or the defense attorneys drafted into the war on terror, or, finally, Edward Snowden. Their efforts might have accomplished less than they hoped, but they have at least succeeded in pulling off the veil. They have, in other words, made possible what is essential to any democracy: open debate. And they have at least partially repudiated Bush administration Attorney General Alberto Gonzales’s view that in a time of terror, constitutional guarantees are “quaint” and “obsolete.”

Still, the struggle to restore rights—and the courts that embody and adjudicate those rights—to their transcendent status in American law and policy is not over. President Obama might have ended torture, emphasizing its illegality; he might yet succeed in closing Guantánamo, and he might have placed some restraints on the use of drone warfare. But some Guantánamo detainees will most likely be moved to federal prisons and kept there indefinitely, and the Obama administration continues to put names, potentially including those of Americans, on kill lists.

Above all, Obama has refused to punish those who designed, justified, carried out, and covered up torture. Without accountability, there is little to deter future government lawyers from fashioning opinions to suit the exigent needs of their president, as John Yoo did for Bush. Some of those who had a part in building these programs have confessed to me their remorse, and the way their participation keeps them up at night, but this sorrow remains as secret as the programs once were. And all of them, remorseful or not, are free to pursue their careers and, if called upon, to comment, as Dick Cheney and Yoo still sometimes are, to defend torture as a useful weapon in the war on terror.

It is in this uncertain climate, in which we are struggling to square recent threats to social order and safety with old ideals about freedom and privacy, that terrorism has taken on a new face: ISIS, a global gang that thrives on vast social-media outreach to discontented youths. It has set its sights on fulfilling Osama bin Laden’s dream of a caliphate, a Muslim homeland extending around the globe. ISIS is reckless and ruthless, openly determined to wreak havoc wherever and whenever it can. And it will likely sometimes succeed. Terror attacks are as sure to happen as a devastating earthquake on the West Coast or a hurricane on the East, as an epidemic of SARS or Ebola or influenza, or as the failure of a vital piece of our deteriorating infrastructure. They are, in other words, a condition of our current existence.

That isn’t to say we are helpless to mitigate the threat but, rather, that fear should not be our primary guide, as it was in the aftermath of 9/11. Terrorism in its 21st-century form, particularly from ISIS, is increasingly borderless and faceless. It attracts loners, outcasts, the alienated, and the bullied, and others, often adolescents, attracted to the misguided romance of serving ISIS’s brutal caliphate. In this respect it is symptomatic of a world that is faster-paced, less local, and more global, harder to find one’s way in, and less static than ever before. The challenge is immense, but it is bigger than ISIS; the challenge arises from the flaws that have always lurked in modernity and that have surfaced from time to time in events that are disruptive, sometimes shockingly so.

After World War I, Europe faced one of these ruptures. The war featured advances made possible by new technologies—in flight, in weaponry, and in communications. Information moved faster than ever before, people moved faster than ever before, and it was easier than ever before to inflict death on a massive scale. Even after the horror of the war subsided, these rapid changes overwhelmed governments. The younger generation, which might have adapted to the pace of the new age, had largely been killed off in the war, leaving decisions largely to old men, tied to the nineteenth century. Gripped with fear and confusion, unable to grasp the depth of the changes—or to come to terms with them—they failed, even with such technology at their disposal, to bring either peace or prosperity to Europe. Much of the continent descended into fascism carried out by totalitarian governments that, among other excesses, considered rights and the rule of law an impediment to order and national honor.

America is facing a parallel challenge. In the decade after 9/11, this country came perilously close to losing the protections of the Bill of Rights—to undermining the country’s foundation on the rights to freedom of speech and religion, to freedom from capricious searches and seizures, to due process and fair treatment, and to protections from cruel and unusual punishment. These rights come as close to the credo of a national religion as we have. That they were so easily abrogated, and with the help of the people to whom we entrusted them, should give us pause and lead us to think hard before once again tossing them aside in the face of terror.

Living with impermanence and instability, the hallmark conditions of our age, requires courage and steadfastness. Rather than distract ourselves with futile efforts to create a kind of safety that can’t be achieved, we should teach our children—not to mention our policy makers—to keep a firm footing in the protection of our civil liberties no matter how much terrifying information comes their way each day. We should urge those in whom we have entrusted the future of the country to focus not on symptoms of the time so much as on what underlies them—in the case of the events of recent years, all the pathologies that give rise to movements like Al Qaeda and ISIS. We should force them to take responsibility for and action against those conditions for which we bear responsibility and which, unlike terrorism itself, can be controlled through careful action. And above all, we should insist that they hew to the rule of law and the constitutional principles that it embodies. We have seen what happens when fear leads to the abandonment of those principles.

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