MANHATTAN (CN) — As time runs out for President Barack Obama to deliver on campaign promises, "Rogue Justice: The Making of the Security State" details how a thousand proverbial cuts slashed constitutional protections from the national-security apparatus.
In hardcover today, Karen Greenberg's new title with Crown opens at a moment of critical setback, as the nation approached the 10-year anniversary of Sept. 11 terrorist attacks.
Congress had just banned moving detainees from Guantanamo Bay onto U.S. soil, and then-Attorney General Eric Holder reluctantly shelved plans to prosecute five of the accused Sept. 11 perpetrators in a federal courthouse blocks away from the World Trade Center.
A military commissions process for Khalid Sheikh Mohammed began roughly eight years ago, but trial is still a long way off for the accused Sept. 11 mastermind and four alleged co-conspirators.
In her new book, Greenberg, who serves as director of Fordham University School of Law's Center on National Security, vividly describes the courtroom drama and legal maneuvering behind significant terrorism cases.
Dissecting the lumbering growth of what Greenberg describes as the security state, the 266-page tome examines the legacy of torture, indefinite detention and mass surveillance that it leaves behind it.
As she tackles the case of so-called "American Taliban" John Walker Lindh, Greenberg shows how prosecutors used the plea-bargaining progress to delay revelations about torture at Guantanamo Bay. These stories did not come to light for at least another decade, upon the release — in heavily redacted form — of Senate Select Committee on Intelligence report on the CIA's rendition, detention and interrogation program.
Greenberg also relates how predominantly Republican politicians spun the trial of U.S. embassy bomb plotter Ahmed Ghailani to paint federal courts as weak.
Though the case ended in surprising acquittals on all but one charge following efficient and public proceedings in New York, Ghailani still received a life sentence.
Like many other observers, Greenberg sees that case as dooming the Obama administration's aspirations for a 9/11 trial in New York, but she also highlights that more arcane legal battles that government lawyers waged behind closed doors.
One of the early chapters tells how John Yoo opened the door to warrantless searches by making a deceptively simple change to surveillance law that "pivoted on the smallest word in the English language."
The Foreign Intelligence Surveillance Act had previously mandated that "the purpose" of a proposed search be for foreign intelligence, but Yoo pushed to change it to "a" purpose.
In that single-letter, Greenberg finds the origins of policies that would not begin to come to light until the revelations of National Security Agency whistleblower Edward Snowden, whose seismic impact on national-security law earns him a chapter title in the book, "The Snowden Effect."
This attention to how seemingly minor changes can hobble longstanding constitutional protections recalls Michelle Alexander's "The New Jim Crow," a book revealing how the criminal-justice system cut millions of black and Latino prisoners off from employment, housing, education, public benefits and voting rights.
What Alexander's work illuminates for mass incarceration, "Rough Justice" does for the national-security state, detailing the subtle and unsubtle power grabs that eroded U.S. commitment to the rule of law.
In the book's preface, Greenberg questions whether the national security state created under the George W. Bush administration is capable of reform.
"As we near the end of the Obama years, the remaining distortions of law and excesses of power may slowly recede," she writes. "On the other hand, they may be woven so seamlessly into the way the nation is governed that we will forget there was ever a time when fear did not guide policy or weaken the principles upon which the nation was founded."
By the time she reaches her epilogue, Greenberg details the significant progress made. Noting the partial release of the Senate "torture" report and the passage of the USA Freedom Act, which bans the NSA from retaining telephone data, Greenberg pulls the book through to a place of optimism.
"Neither civil liberties nor the rule of law was consumed," she concludes. "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."
Enumerating some of the struggles still ahead, Greenberg highlights the ongoing battles over accountability for torture, protecting the privacy of U.S. citizens, and fulfilling Obama's vow from Day 1 of his administration to close Guantanamo.
The USA Freedom Act itself divided civil libertarians who celebrated it as a victory for privacy from those who argue that outsourced bulk data collection to private sector telecoms, the book notes.
Of the 780 captives ever held captive at Guantanamo Bay, 80 remain today inside its prisons, and the handful who face formal charges still do not know to what extent the U.S. Constitution applies on the military base in Cuba.
Recent headlines continue to show a grim outlook: The New York Times quoted a top Pentagon official last week opining that "the clock has run out" to close Guantanamo, and secret documents published by The Intercept last year said that nearly 90 percent of people killed in drone strikes were not the intended target.
Even for readers who subscribe to this murkier view of civil liberties toward the end of Obama's second term, Greenberg lays out a cogent argument for celebrating the progress that has been made, but she does not flinch from showing how the security state has immunized itself to attempts at reform.
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