In Government We Trust?

Security is
not about whether we build a wall; it’s about controlling our impulse to build
it too high or let the government decide on our behalf.  The size of the
American national security infrastructure has grown rapidly since the attacks
on the World Trade Center on September 11, 2001. Since then, we have
established the Department of Homeland Security and expanded the authority of
the National Security Agency (NSA), Federal Bureau of Intelligence (FBI), and
the Foreign Intelligence Surveillance (FISA) Court.

In her new
book, Rogue Justice: The Making of the Security State, Dr. Karen Greenberg,
Director of the Center on National Security at Fordham University, turns her
attention to these new tools for ensuring our national security. The book,
which she discussed with Peter Bergen, Vice President and Director of the
International Security Program at a recent New America event, traces the growth
and development of these organizations’ power following September 11, 2001.

The result of
this growth, in Greenberg’s view, is a fundamental affront to civil liberty and
justice. Greenberg described how, in order to fight the war on terror, these
organizations have routinely minimized the role of “staples of American
democracy” like transparency and due process. “Politicians, lawyers, and
bureaucrats had been working hard to counter the terrorist threat by going
right to the edge of the law,” she wrote. “And, when the law proved too
restrictive, by massaging its boundaries to include the measures they wanted to
take.” These new methods of counterterrorism, willingly accepted and employed
by several government agencies, have gone beyond what we would once have
considered unthinkable.

According to
Greenberg, this is a sign that our legal system has given into rogue justice—an
acceptance and endorsement of policies antithetical to the aforementioned
staples of democracy that, once adapted, make us unable to question our methods
for keeping ourselves safe as robustly as is necessary in a free society.

At the event
itself, Greenberg pointed to the Guantanamo Bay detention camp as an
illustration of the ills of rogue justice. “Guantanamo has been a mistake on so
many levels,” Greenberg said. A large part of this is due to the fact that many
of the people currently there have already been cleared for release, as Bergen
pointed out. But beyond this, Greenberg estimates that between 20 to 30
prisoners at Guantanamo have been deemed “too dangerous to transfer, but not
feasible for prosecution,” in the words of Daniel Freid, President Obama’s
former special envoy on closing Guantanamo. According to reporting by The
Guardian, these prisoners include those who have been tortured to such an
extent that they cannot be prosecuted under fair legal process.

Greenberg believes
that closing Guantanamo is a top priority for ending rogue justice. This is not
just because she believes it’s bad policy to keep the world’s most dangerous
terrorist in one place. And it’s not because closing Guantanamo would actually
end the suspension of legal values ingrained in American democracy. In fact,
even if Guantanamo is closed, because of the countless human rights violations
perpetrated against them in the confines of the prison, these 20 to 30
prisoners are unlikely to receive due process, and would probably remain in a
state of indefinite detention. It seems that rogue justice, at least in this
instance, necessitates more rogue justice. Though closing Guantanamo is not a
singularly significant enough action to end all rogue justice policies, it is
an important step to curbing their perpetuating cycle.

And so, too,
might closing Guantanamo force the issue of rogue justice—and a discussion on
it—onto American shores. According to Greenberg, a big obstacle to addressing
these kinds of problems is public awareness. The justification and
implementation of rogue justice policies is shrouded in secrecy. Government
agencies have amassed huge amounts of power without the knowledge of the
American people. Using the FISA Courts, for instance, government agencies like
the Federal Bureau of Intelligence (FBI) and the NSA can “essentially have a
general warrant, rather than a specific warrant, for foreign intelligence
surveillance,” Greenberg said. The court grants these agencies the authority to
collect bulk data from all individuals within a certain category, say people
who have placed several calls to any given country, all in secret. The terms of
individual cases are classified, which prevents public engagement in the
dialogue surrounding personal privacy.  For this reason alone, Greenberg
counts the actions of Edward Snowden as heroic. If nothing else, he renewed the
conversation about the connection between privacy and national security and
when, why, and with what we should trust our government.

National
security officials in the American government generally responded to these
revelations by highlighting their good intentions. Greenberg spoke about the
many members of the Bush administration she interviewed, each of whom was
convinced that these encroaches on privacy, due process, and transparency were
necessary to ensure our national security.

In doing
this, these administrators have implemented what Greenberg refers to as a
“trust me” state. In this kind of system, officials in the government can exert
its power freely. And when their actions come under any kind of scrutiny, they
can simply say something to the effect of, “if you knew what I knew, you would
do the same thing.”

That premise
may indeed be true. It might be that if we knew all the reasons behind each
drone strike the government has used against its own citizens and foreign
nations in countries in the Middle East, we might agree that they were
justified. But that does not immediately mean that the tactics by which the
information was gathered is justified. Furthermore, it’s not clear whether
these rogue justice policies are actually making us, as a nation, any safer.
Since last December, 63 people have died in two instances of domestic terrorism
committed by people who had been radicalized on the internet. And further
still, the reality is that we cannot not all agree that the policies are
justified, because we do not have all of the information. We haven’t been given
it.

The ultimate conclusion that Greenberg makes is that at a certain
point, a system of policies that both infringes on democratic values and is
ineffective must be scrutinized and potentially abandoned.  Reforming and
replacing rogue justice policies would create a government worthy of our trust,
not one that simply says “trust me.”