License to Kill

TERRORISM WORKS, at least against America. The Al Qaeda attacks of September 11, 2001, did pretty much what they were designed to do—they drew the United States into a fruitless invasion of Afghanistan and a catastrophic war in Iraq. The Iraq War, in turn, furnished the petri dish in which the ISIS bacillus incubated. Now ISIS has broken with Al Qaeda and all but destroyed neighboring Syria, threatening a regional war and dragging the United States toward confrontation with Russia in the Levant. As a certain brutal candidate for the Republican presidential nomination might say, that is a huge return on investment.

The rationale, or at least the catchphrase, for the massive response to the 9/11 attacks was that Islamist terrorists pose an unprecedented, “existential” threat to America: They “hate our freedoms” and will kill or be killed in their war on the American way of life. In Rogue Justice, Karen J. Greenberg, director of the Center on National Security at Fordham Law School, shows how such stark fears have boomeranged to pervert our institutions of law enforcement and justice. Greenberg details the ways in which all three branches of American government have compromised, diluted, or abandoned the restraints on state power that are, when you come down to it, the guarantors of our freedom. Again and again, officials have advanced a new legal logic in which the exigencies of “war” may apply anywhere and at any time. This self-betrayal in the face of terrorism is the real existential threat.

Lawyers, judges, and bureaucrats flit in and out of Greenberg’s story, but the main protagonists are the four horsemen of antiterror policy: torture, indefinite detention, targeted killings, and surveillance. We see attorney John Yoo in George W. Bush’s Office of Legal Counsel crafting the notorious “torture memos,” which argued that waterboarding, face-slaps, and keeping detainees awake and standing for days did not meet the formal criteria for torture under American law and treaty obligations—and that if they did, the president would have the inherent constitutional power to order them anyway. These arguments would have made the president effectively a dictator in matters of national defense. President Barack Obama has disowned torture, and the Detainee Treatment Act, passed in 2005 after a wave of revelations of abuse, prohibits “cruel, inhuman, or degrading treatment” of prisoners. With leading Republican presidential candidates calling for a return to “enhanced interrogation,” there may well be future tests of just what “cruel” and “inhuman” mean, and even reruns of Yoo’s argument that Congress cannot stop the president from torturing declared “enemies” if he (or she) sees fit.

The right to avoid imprisonment without trial has been basic to the Anglo-American legal tradition—and, increasingly, to the legal systems of the world at large. The prison camp at Guantánamo Bay, Cuba, which the Bush administration envisioned as a legal no-man’s-land outside any clear jurisdiction, flies in the face of this principle. To launch this dubious experiment, government lawyers invented a new category of prisoner, the “enemy combatant,” protected by neither domestic law nor international protocols governing the treatment of prisoners of war—even if the “enemy” in question was a US citizen. They argued that the prerogative to detain such prisoners flowed from the Authorization for Use of Military Force that Congress passed on September 14, 2001—and which was increasingly looking like a blank check for rewriting legal protections—or else perhaps from that same inherent constitutional power to guard the country. Although candidate Obama vowed to close Guantánamo, as president he found the task too fraught. So the camp has limped along, with prisoners’ chances for substantive judicial review ebbing and flowing with decisions by the Supreme Court, Congress, and federal appeals courts. More than ninety prisoners remain there, and the legal basis for indefinite detention with limited judicial review remains intact.

Meanwhile, targeted killings, usually by drone, in rare cases of American citizens, have become the Obama administration’s signature counterterrorism policy. Although details of the program remain officially obscure, and the total numbers of killings and civilian casualties are deliberately made elusive, the bigger picture is quite clear: Obama, who as an Illinois state senator declared himself “opposed to dumb wars,” has settled on long-distance killings as the paradigm of a smart war.

Defenders of drone warfare say it produces less “collateral damage” than using ground troops, and the official policy of the Obama administration is that drones are used only in cases in which dangerous terrorists cannot be dealt with in other ways. But even if we take these assurances at face value—the only alternative being to conjecture, given the degree to which the executive branch shields drone attacks from public scrutiny—there is no legal limit on how a future administration might use the same power.

Greenberg repeatedly shows that the Obama administration has much more respect than the Bush White House did for the forms of legality. Nonetheless, Obama officials have not embraced any lasting constraints that will bind future presidents. Indeed, Greenberg notes, by abandoning some of the Bush administration’s extralegal cowboy tactics, the Obama administration has normalized extraordinary executive power as part of the rule of law. By tracing its targeted-killing capabilities to that same September 14, 2001, congressional authorization, the Obama administration has clung to the legal fiction that holds that the 9/11 attacks bequeathed the president unchecked power to confront terrorism on an ever-shifting battlefield, a power limited only by the White House’s own views on what respect for the rule of law requires.

A guard monitoring a detainee eating lunch at the Guantánamo Bay prison camp, 2011.
A guard monitoring a detainee eating lunch at the Guantánamo Bay prison camp, 2011. JTF Guantánamo/US Navy Mass Communication Specialist 2nd Class Kilho Park

Widespread surveillance may be the most momentous development of the post-9/11 period, although it lacks the vivid imagery of the hooded prisoners at Abu Ghraib, “rectal feeding” at Guantánamo, or a Hellfire missile descending from an invisible height to explode in a Yemeni village. Before the former security contractor Edward Snowden revealed the government’s all-encompassing data dragnet, officials had shown themselves willing to mislead Congress and the public about its existence. The thin legal reed on which the program dangled was a portion of the USA PATRIOT Act, the sweeping expansion of law-enforcement powers passed after 9/11. That landmark legislation greatly expanded the government’s power to monitor “foreign” communication, but it made no mention of the sort of comprehensive surveillance system that the White House subsequently built in secret. The administration’s response to the Snowden revelations amounted to a generic profession of grave concern capped by a standard, rushed “trust us” disclaimer. The program is supposed to have stopped as of the latest reauthorization of the PATRIOT Act last year—the first serious brake Congress has put on post-9/11 presidential overreach.

One major deficit of Rogue Justice is that it shows us nothing of the world Snowden came out of—the vast shadow land of high-dollar security contractors who constitute a new and insidious form of governmental power. Greenberg subtitles her book The Making of the Security State, but really she narrates the legal history of the security state. Much of this history has unfolded in fights around the edges of post-9/11 policies, in which litigators—including the government lawyers defending the policies—and judges often have only a dim picture of what’s really happening. Greenberg notes that many critics of the security state are troubled by its penchant for “secret law,” which leaves the public and elected officials in a state of fundamental ignorance about their own government’s policies, rules, and rationales, and therefore unable to pose pointed critiques, apt challenges, or even cogent questions, in or out of court.

But in its true compass, the security state’s making is really a story about new institutions—some secret, some private, some both—that have insinuated themselves into governance and begun replacing law as it is traditionally understood as a transparent system of checks on official power. A more accurate subtitle for Greenberg’s book would have been What the Security State Is Doing to (the Very Idea of) the Law.

Greenberg also fails to take readers inside the deliberations of the policy makers at the heart of her narrative. One of the most striking facts about the Obama administration, briefly referenced but not explored here, is that lawyers who were sharply critical of Bush-era policies have continued to develop and often expand the security state after taking office. A cynic might say that once people have power, they find all sorts of uses for it, but that view doesn’t square with the facts: From the president on down, many of them are deeply intelligent, reflective people who have spent their careers at the intersection of power and principle. Although Obama officials moved quickly to repudiate the Bush administration’s atrocities, something about how the world looked from their new vantage seems to have changed their minds about the relevant trade-offs in play. Greenberg talked to lawyers and litigants while preparing her book, but probing conversations with Obama-era officials would also have been illuminating. (Perhaps she tried to have them; if so, she doesn’t indicate as much here.)

Greenberg’s research does, however, underline one crucial point: Institutions and their cultures matter enormously. Throughout Rogue Justice, we catch glimpses of FBI agents, judges, and government lawyers whose identities are stitched into the elusive idea of “the rule of law.” For them, this means that official power must be held accountable through regular and transparent procedures; that the rights of individuals are of paramount importance; and that no one—and especially not the president—can change the meaning of the law and assume new powers because he or she deems it convenient or even urgent to do so. The elaborate official subterfuges of state secrecy, the claim that the president has inherent constitutional power to violate legal rights in defending the country, the seemingly boundless expansion of the Authorization for Use of Military Force and the PATRIOT Act—all these are antimatter to the conviction that the security state must transact its business within the bounds of the rule of law. And this, in turn, is where the culture of institutions comes in: For officials and whistle-blowers to stand up to appeals to fear, patriotism, and expediency in defense of their rather tedious rule-of-law principles, they must have colleagues, superiors, and training that will support them, win or lose. The new institutions of the semiprivate, intensely secret security state might as well be designed to prevent the development of such a professional culture. We cannot count on the wondrous anomaly of Edward Snowden to repeat itself.

The late justice Antonin Scalia earned many enemies, on the left and among the vulnerable populations whose legal arguments he seldom heeded. In his own idiosyncratic way, however, he was an institutionalist. His belief in the courts and the Constitution meant that prosecutors and other executive officials were sometimes among the petitioners he disappointed. In Hamdi v. Rumsfeld, a 2004 ruling on the rights of an American citizen and “enemy combatant,” he argued for rejecting the government’s minimal and unbalanced procedures in favor of a simple choice: Either Congress could suspend the writ of habeas corpus, allowing indefinite detention of a citizen—or the government could take Yaser Hamdi to trial in federal court.

Scalia’s prescription, which did not prevail in Hamdi, was roughly the same policy that Obama’s first attorney general, Eric Holder, later tried to advance—for noncitizen prisoners as well. But Congress, perhaps sensing that he was venturing down a slippery slope that could shut down Guantánamo and all the attendant rationales for torture and state impunity, pressed Holder back into the status quo on detainment and interrogation.

If Republicans succeed in controlling the selection of Scalia’s replacement, that justice will almost certainly be less of an institutionalist and more of a reliable servant of a conservative vision of executive power. There’s likewise good reason to fear that Obama, working under intense ideological pressure from the GOP Congress and following his own comfort with presidential authority, will select a nominee unduly deferential to executive power—someone all too willing to put the expediency of governing above the principle of limiting government power.

When Greenberg steps back from her story, it is usually to remind readers of the importance of the rule of law and the gravity of the threat to it. But, of course, the past fifteen years have seen many more events than the so-called war on terror. One reason these times have been so hard on the ideal of the rule of law is that the country has received brutal and indispensable reminders, via videos of police violence, that the rule of law has always been a myth for many Americans. At the same time that the mandarins of executive power have striven to make the rule of law seem obsolete in foreign affairs, it’s been shown to be an often fraudulent ideal on the domestic front. There is no use playing hero to defend a myth.

If American law is to be a safeguard for the dignity of all people, it will need activist movements like Black Lives Matter and civil-libertarian critics like Greenberg to call out the law’s hypocrisy and violence. It will also need the institutionalist defenders of law who are frequently the heroes of Greenberg’s story—people who see in the law something worth preserving in order to improve it.

Jedediah Purdy teaches at Duke University and is the author, most recently, of After Nature: A Politics for the Anthropocene (Harvard University Press, 2015).