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.