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.