By Karen J Greenberg
By now, you'd think we'd be entering the end of the horrific inside job 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.