DISPATCHES FROM AMERICA
Unstoppable legacy of the
'war on terror' By Karen J
Greenberg
By now, you'd think we'd be
entering the end of the 9/11 era. One war over in
the Greater Middle East, another hurtling
disastrously to its end, and the threat of
al-Qaeda so diminished that it should hardly move
the needle on the national worry meter. You might
think, in fact, that the moment had arrived to
turn the American gaze back to first principles:
the constitution and its protections of rights and
liberties.
Yet warning signs abound that
2012 will be another year in which, in the name of
national security, those rights and liberties are
only further Guantanamo-ized and abridged. Most
notably, for example, despite the fact that
genuinely dangerous enemies
continue to exist abroad,
there is now a new enemy in our sights: namely,
American oppositional types and whistleblowers who
are charged as little short of traitors for
revealing the workings of our government to
journalists and others.
Here and
elsewhere, it looks like we can expect the Barack
Obama administration to continue to barrel down
the path that has already taken us far from the
country we used to be. And by next year, if a
different president is in the Oval Office, expect
him to lead us even further astray. With that in
mind, here are five categories in the sphere of
national security where 2012 is likely to prove
even grimmer than 2011.
1. Ever-more
punitive (ever-less fair-minded) Those who
imagine the era of overreach in the name of
national security coming to an end any time soon
would do well to remember that some spectacular
national security trials are on the horizon - and
that we may be entering a new age of governmental
vindictiveness.
Among the most newsworthy
of those trials: the military commissions at
Guantanamo that will bring to the docket Khalid
Sheikh Mohammed, the alleged mastermind of the
9/11 attack, and his co-conspirators, as well as
Abd al-Rahim al-Nashiri, the alleged point person
in the 2000 suicide attack on the USS Cole
in the port of Aden, Yemen. These will likely
include capital charges and be prosecuted in a
spirit of vengeance.
But that spirit won't
stop with al-Qaeda ringleaders and operatives. A
series of cases not involving attacks on or the
killing of Americans will also be argued in the
name of national security and in a similar spirit
of vengeance. To begin with, there is the upcoming
court martial of Bradley Manning, accused of
downloading classified US government documents and
leaking them to the website WikiLeaks. And then
there is the potential prosecution of WikiLeaks
founder Julian Assange in federal court - a
federal grand jury is now considering his
indictment - for his alleged collaboration with
Manning.
Both cases have been hailed with
a righteous anger that might strike an outsider as
akin to frothing at the mouth. Top officials have
insisted that the WikiLeaks materials threatened
American lives and left "blood" on the hands of
both Assange and Manning (though no one has yet
pointed to a single individual physically harmed
by the release of those documents).
At the
more bloodthirsty end of the American political
spectrum, former Arkansas governor and
presidential candidate Mike Huckabee and
Congressman Mike Rogers (Republican-Missouri),
among others, have called for Manning's execution.
As Rogers explained, "I argue the death penalty
clearly should be considered here. [Manning]
clearly aided the enemy to what may result in the
death of US soldiers or those cooperating. If that
is not a capital offense, I don't know what is."
A similar, if less lethal, desire for
punishment lies behind the Obama administration's
determination to aggressively pursue and crack
down on leaks to the media from inside the
government, even when they don't involve the
actual theft of government documents. Obama
entered the Oval Office proclaiming a "sunshine"
policy when it came to the workings of the
government, only to move beyond George W Bush in
attempts to clamp down on whistleblowers.
The pending trials of two former Central
Intelligence Agency (CIA) officers exemplify this
pattern. Jeffrey Sterling is charged with leaking
classified documents to the New York Times' James
Risen about plans to release flawed information to
Iran in a potentially counter-productive effort to
subvert its nuclear program; John Kiriakou just
pled not guilty to releasing information to the
media about Bush-era torture policies. All told,
the administration has gone after six suspected
leakers - more than all previous administrations
combined - using the draconian Espionage Act.
In the matter of leakers, the message
couldn't be clearer or more vengeful. The
government's position has been this: expose us and
we will turn on you with a fury you can't imagine.
As terrorists have been warned that new laws and
legal systems can be built to deal with them,
those accused of leaks to the press are being told
that even the full extent of the law may not be
the limit when it comes to punishment.
Witness the treatment of Manning in his
first year of punitive captivity before he was
charged with any crime: he was kept in a Marine
Corps brig in total isolation and forced to sleep
naked. Or consider the attempt not just to
prosecute but to destroy the life of former
National Security Agency official Thomas Drake. He
was accused of leaking classified information on
what he considered to be a wildly wasteful
National Security Agency program. In the end,
though charged under the Espionage Act, he pled
guilty to the misdemeanor of essentially borrowing
a government computer - but not before his life
had been turned upside down and his job lost.
2. Ever-more legal limbo (ever-less
confidence in the constitution) By now,
it's old hat to acknowledge that the indefinite
detention of those once deemed "enemy combatants",
now termed "unprivileged enemy belligerents", has
become as American as apple pie. Like the Bush
administration before it, the Obama administration
insists on its commitment to holding nearly 50
Guantanamo detainees in indefinite detention
without charge or trial.
In May 2009, in a
speech at the National Archives, the president
couldn't have been clearer: indefinite detention,
he stated, would remain an option in the national
security toolbox under his administration. In this
way, he guaranteed that an American version of
offshore (in)justice and the essential character
of Guantanamo, which he once claimed he would shut
down, would continue intact.
In 2012,
however, there is a worrisome new indefinite
detainee category to worry about: US citizens.
Previously, Americans were exempt from
incarceration at Guantanamo and so from its policy
of detention without trial. In 2002, Yaser Hamdi,
a Saudi-American citizen, when discovered at
Guantanamo Bay, was hurried to a plane in the wee
hours of the morning and whisked away, a sign of
the rights still accorded American citizens.
Similarly, the "American Taliban", John Walker
Lindh, apprehended on the Afghanistan battlefield,
was brought into the federal court system.
Lately, however, congress has shown less
respect for the distinction between rights
accorded to citizens and non-citizens. Last month,
congress passed the 2012 National Defense
Authorization Act (NDAA). The debates over its
passage reflected a concerted effort to make
American citizens as well as foreigners subject to
indefinite military detention.
Ultimately,
citizens supposedly remain exempt from the new
law, but even so, it was a close call and a signal
about where we may be headed. As a recent
congressional research service report on the NDAA
explained, it is "not intended to affect any
existing authorities relating to the detention of
US citizens or lawful resident aliens, or any
other persons captured or arrested in the United
States".
Still, there remain many fears
and much confusion about what protections are
retained by US citizens under the act. Nor did
Obama's signing statement, asserting that he would
"not authorize the indefinite military detention
without trial of American citizens", assuage those
fears and confusions. If American citizens were
indeed protected from indefinite detention under
the new legislation, why was such a signing
statement necessary?
There is yet another
place where the law seems to have plunged into
legal limbo without in any way abridging US
actions: the high seas. Earlier this year, the
Obama administration announced that it was
detaining 15 pirates captured off the coast of
Somalia - and that they were being held without
reference to any legal status whatsoever.
According to New York Times reporter C J Chivers,
"where interdiction ends, an enduring problem
begins: what to do with the pirates that foreign
ships detain?"
According to the State
Department, the pirates will be tried. But where?
In the words of Vice Admiral Mark I Fox, "We lack
a practical and reliable legal finish." In other
words, the US has not yet found a country under
whose law it can try them. In the meantime,
according to the latest reports, the US Navy
continues to confine them. Think of this,
conceptually speaking, as a floating Guantanamo
intended to hold for-profit enemies.
3.
Ever-more secrecy (ever-less
transparency) "Necessary" secrecy has been
the fallback explanation for much of the
information that has been withheld from public
scrutiny since 9/11. The military commissions at
Guantanamo will proceed, for instance, in part on
the claim that, if the accused, many of whom have
already been held for a decade, were to be tried
in federal court, too much would be revealed that
could somehow compromise the country's security.
To counter civil libertarian claims that
secrecy is only an attempt to hide embarrassing or
wrongful behavior, the current administration has
promised "transparency" in the military
commissions scheduled to begin later this year.
Efforts at transparency, announced last fall,
included a website where documents - filled with
redactions (blacked-out sections) - could be
accessed by the public, and a closed-circuit
viewing, albeit with a 40-second delay, for the
media and members of the victims' families.
It has taken next to no time, though, for
the government to contradict those vows of
transparency, ensuring that, in the polite words
of Spencer Ackerman of Wired's Danger Room blog,
Guantanamo will remain "not a place of openness".
Meanwhile, all mail between the detainees and
their military defense counsels is being screened,
a practice that understandably has those lawyers
in an uproar.
In the category of
non-transparency and the growth of secrecy as a
first principle of government, there is the
administration's elaborate dance of non-disclosure
over a memo produced by the Justice Department's
Office of Legal Counsel (OLC). It was evidently
written to justify the assassination by drone in
Yemen last September of American citizen Anwar
al-Awlaki, alleged to have been the "bin Laden of
the Internet".
Until recently, the
administration has ducked questions about
al-Awlaki's killing and that of another American
citizen, Samir Khan, the editor of the al-Qaeda
magazine Inspire. In January, the government
announced that attorney General Eric Holder would
soon make public the OLC memo that legalized the
killing, but delayed the attorney-general's
explanation until early March.
Meanwhile,
the New York Times and the ACLU filed a Freedom of
Information Act (FOIA) request for its release. On
March 5, Holder finally gave a detailed
explanation of the tortured reasoning behind the
targeted killing of al-Awlaki, but still, no memo
seems to be forthcoming.
During the past
year, the imposition of secrecy on government
activities of all sorts has only become more
pronounced. To offer just one egregious example
among many, consider the government's behavior in
the case of former CIA agent Jeffrey Sterling. At
its request, a federal judge has now agreed to
allow it to invoke the "silent witness rule". In
other words, she will let government documents be
shown to the jury without being made public, on
the grounds, according to prosecutors, of
"national security".
After a decade in
which the customary practice in matters of
"security" has been to sweep all too many
government documents of significance into the
shadows under that rubric of national security,
this should hardly be surprising. Americans now
know ever-less about what the government they
elected does.
If it were not for the FOIA
lawsuits of the ACLU and others, very little of
what we do know about torture, warrantless
surveillance, and other instances of government
malfeasance would ever have seen the light of day.
Consider the increasing number of whistleblower
prosecutions as one more way to try to shut
government activities off from the eyes of the
citizenry.
4. Ever-more distrust
(ever-less privacy) For years, the prospect
of warrantless wiretapping in the name of national
security has had a chilling effect on Americans
who have opposed government policies in the war on
terror. In 2008, Bush signed a new FISA Amendments
Act (FAA), which authorized the government to
snoop on citizens with minimal oversight from the
already secretive Foreign Intelligence
Surveillance Courts. (They were set up in 1978 to
oversee the granting of surveillance warrants
against potential foreign intelligence agents.)
The Obama administration has continually
opted to uphold this power and the government's
freedom to warrantlessly tap electronic
communications between people outside the United
States and people inside the country in the name
of national security.
Meanwhile, the
latest revelations in the ever-more-distrust,
ever-less-privacy sweepstakes are led by news that
the New York City Police Department (NYPD) has
implemented surveillance programs that violate the
civil liberties of that city's Muslim-American
citizens. The NYPD infiltrated mosques and
universities, collecting information on
individuals suspected of no crimes, in conjunction
with a CIA officer (now withdrawn) using methods
traditionally reserved for that agency.
This surely represents, however
informally, an abrogation of the CIA's mandate to
conduct its surveillance only abroad, and it's
likely that no one involved will pay a penalty for
it. In addition, in a striking combination of
security overreach and police profiling, the NYPD
has been investigating and surveilling
Muslim-American citizens well outside the city
limits - from New Haven, Connecticut, to Newark,
New Jersey.
To make matters worse, the
government just approved the use of surveillance
drones as part of a growing law enforcement
arsenal for gathering information in the United
States. On February 14, Obama signed a bill
allowing for the use of such drones in a broad
array of arenas, ranging from business activities
to law enforcement.
The message is clear
enough: this year (next year and the year after)
will be the year of more snooping. For law
enforcement, your life is apparently an open book.
5. Ever-more killing (ever-less
peace) Scarcely a day goes by without news
of the use of Predator and Reaper drones to kill
individuals in foreign countries, including in
recent years Afghanistan, Pakistan, Iraq, Yemen,
Somalia, Libya and the Philippines. It's as if the
CIA and the military have been handed a new toy
that they just can't refrain from using, or
teaching others to use. According to the Atlantic,
"Conservative estimates suggest hundreds of
noncombatant civilians have been killed in
Pakistan alone."
Meanwhile, the drumbeat
for war with Iran continues to build. Faced with
the prospect of an Israeli attack on the Islamic
Republic, the Obama administration has refused to
definitively back away from the prospect of
becoming part of that war.
"Iran's leaders
should understand that I do not have a policy of
containment," the president said. "I have a policy
to prevent Iran from obtaining a nuclear weapon.
And as I have made clear time and again during the
course of my presidency, I will not hesitate to
use force when it is necessary to defend the
United States and its interests."
In fact,
the urge to stop a potentially disastrous
confrontation, which could seriously affect the
price of oil and the global economy, has sent high
military and civilian officials winging from
Washington to Israel with warnings against an
attack on Iran. Still, war continues to be treated
by diplomats and others almost as a fait
accompli.
The news then is certainly
grim, and moving in one clear direction - the use
of the law, or at least the Justice Department's
version of the law, to justify whatever acts the
government feels are necessary against whomever
they deem to be the enemy. Attorney General Holder
summed the situation up tellingly in his defense
of the al-Awlaki killing.
In significant
detail, he explained that the killing of an
American citizen (and terror suspect) was lawful,
despite the fact that it brought into question the
guarantee of due process under the Fifth
Amendment, and despite the guarantees offered by
the laws of war. "Due process," he declared, "is
not judicial process." It was a startlingly honest
admission of something new under the American sun:
due process is now what the president and his
closes advisors decide it is, a constitutional
rethinking of the first order to justify the
"targeted killing" of an American citizen.
To sum up, the legal gray zone Washington
has, over the course of a decade, plunged us into
- and everything that goes with it, including
punitive measures, attempts to bypass
constitutional guarantees, the spread of secrecy
and surveillance, a growing distrust of American
citizens, and straightforward killing - isn't
something we will soon put behind us. The move
away from the rights and liberties enshrined in
the constitution and the law is very clearly the
way of the American future in our new age of
enemies.
Karen Greenberg is the
director of the Center on National Security at
Fordham Law School, a TomDispatch regular, and the
author of
The Least Worst Place: Guantanamo's First One
Hundred Days, as well as the editor of The
Torture Debate in America. Adam Brody, Rebecca
Kagan, and Sasha Segall contributed research to
this article. To listen to Timothy MacBain's
latest Tomcast audio interview in which Greenberg
discusses a new American state of "legal limbo,"
click here,
or download it to your iPod here.
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