Rogue Justice: The Making of the Security State - Couverture rigide

Greenberg, Karen

Couverture rigide

ISBN 10 : 0804138214 ISBN 13 : 9780804138215

Editeur : Crown Archetype, 2016

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Greenberg / ROGUE JUSTICE

Chapter 1

Justice at War

Attorney General John Ashcroft spent the morning of September 11, 2001, on a Gulfstream jet, heading to Milwaukee to celebrate Library Day with schoolchildren. He never made it to the event. As soon as the jet landed, a black-­clad SWAT team surrounded it and hovered, weapons at the ready, as the plane was refueled and prepared for the return journey to Washington, DC. He made it out just in time—­air travel in the United States would soon be suspended—­and joined other top government officials at the White House early the next morning to meet with President George W. Bush, who had returned from his own Library Day event in Florida.

Ashcroft was seated between CIA director George Tenet and Secretary of Defense Donald Rumsfeld. He could feel the president’s eyes on him. “Don’t ever let this happen again,” Bush said.

“I took it personally,” Ashcroft later wrote. “From that moment forward, I devoted myself to an intense, sometimes secret war with a mission many people thought was impossible: stopping terrorists from striking again on American soil.”

Although the president had been looking directly at him when he gave this command, Ashcroft wasn’t entirely sure that it was intended for him. But regardless of whom Bush was holding accountable for the previous day’s events, everyone in the room probably felt some version of Ashcroft’s sense of responsibility and mission. The attack had caught them all off guard. They had failed in their duty to protect the country. Each of them now had to figure out what had gone wrong under his or her watch, how to correct it, and, above all, how to prevent a catastrophe like 9/11 from ever happening again.

Ashcroft’s Justice Department, especially its storied law enforcement and investigative wing, the Federal Bureau of Investigation, had a unique role in this reckoning. The FBI and the lawyers under Ashcroft’s command would not only have to ferret out and round up those responsible for the attacks; they would also have to stop those who might be planning something similar. This was not a task for which Ashcroft was directly prepared, either by experience or by temperament. As a governor and a senator, he’d focused on domestic issues, carving out a place for himself as a Christian conservative opposed to abortion, desegregation, and big government. As he had told Larry King in February 2001 during a discussion of gun control, “We’ve got enough laws on the books. I think what we need is tougher enforcement.” It was enough for lawyers and investigators to step in after people had committed crimes, at which point, he said, “we should nail them.” Seven months after he talked to King, it was clear that this approach would not suffice when it came to terrorism.

When he returned to his office after the White House meeting, Ashcroft assembled his top deputies. They were being deployed in the war on terror, he told them. They would have to peer into the future and beyond the nation’s borders in order to do their new job: keeping the country safe.
Robert Mueller’s first full day on the job as FBI director was September 10, 2001. He hadn’t even found the bathrooms in his new headquarters when the planes hit the buildings in New York and Washington. But he was plenty oriented to the job of combating terrorism—­certainly more so than his boss. Princeton-­educated, worldly, a decorated Vietnam Marine veteran, and a prominent prosecutor, Mueller had told the Senate committee vetting his nomination to the FBI post in the summer of 2001 that “the major threat that we have, and the threat that the Bureau needs to worry about the most, is terrorism.”

Yet as Mueller recalled for a 2012 gathering of Harvard Business School students, one of his very first meetings with President Bush after 9/11 didn’t go very well. He was in the Oval Office describing to Bush and Cheney his agents’ efforts to piece together an account of who the conspirators were, how they had carried out their attacks, and what their connection was to Al Qaeda and Osama bin Laden, when Bush interrupted him: “Stop it! What you’re telling me the bureau is doing is what you’ve been doing for a hundred years; my question for you today is what is the bureau doing today to prevent the next terrorist attack.” The president, Mueller said, asked him that same question every day for the next four years.

What the bureau had been doing for a hundred years, or at least for the previous decade or so, clearly hadn’t worked. As Ashcroft told Congress on September 25, the attacks revealed “a total breakdown in our intelligence, one that cannot be excused and must never be forgotten.” Mueller, Ashcroft, and others had immediately begun to investigate how the bureau had missed the signs that a terrorist attack was imminent. This wasn’t the first time the FBI had had to investigate itself. Less than a year earlier, in February 2001, it had arrested one of its own agents, Robert Hanssen. Hanssen had been spying for the Russians for years without being caught. High-­profile failures like these had led investigators to ugly conclusions about the health of America’s premier law enforcement agency. Internal communications were, as one report put it, rife with “human error, compounded by antiquated and cumbersome information technology systems and procedures.” There was no networked computer system for research and information sharing; field agents were reduced to consulting public libraries to obtain information. Relationships among the various sections of the agency were “dysfunctional” and “broken,” which led to repeated failures to communicate. The bureau was cripplingly short on able translators.

Sometimes the consequences of the disarray were only minor, if embarrassing. Ashcroft, for instance, was forced to postpone Timothy McVeigh’s execution in the wake of a disclosure that the FBI had failed to provide evidence to McVeigh’s defense team, a lapse that turned out to be the result of disorganization. But sometimes they were devastating, as in the case of Wen Ho Lee, a Los Alamos scientist suspected of transmitting nuclear secrets to China—­“allegations of espionage as significant as any the United States Government is likely to face,” as the official report on the debacle put it. But, the report concluded, the “FBI’s . . . investigation of Wen Ho Lee, in virtually every material respect, was deeply and fundamentally flawed.” The agency failed to make the Lee case a priority. It assigned an overworked, underexperienced agent to it and then denied him resources. Information got tangled up in bureaucratic webs. Supervisors ignored the case. In the meantime Lee, who had indisputably downloaded nuclear secrets onto a flash drive and who had been caught on wiretap promising a captured spy that he would find out who had turned him in, languished in solitary confinement for nine months, becoming a civil liberties cause célèbre. In the end, he pleaded guilty to just one of the fifty-­nine counts on which he had been indicted, then went on to write a book called My Country Versus Me, in which he argued that he had been a victim of racial profiling.

If the FBI’s logistical and informational infrastructure was too dysfunctional to nail the bad guys, it certainly wasn’t up to the task of finding out in advance who they were and what they were up to and then preventing them from committing crimes. Running an effective intelligence operation required competent data collection, skilled analysis, and timely exchange of massive amounts of information, and the FBI, by its own reckoning, had failed miserably at all three.

Turning the FBI around was a daunting task, but at least Mueller and Ashcroft got along, which is more than you could say for their predecessors, Louis Freeh and Janet Reno, whose mutual dislike erupted into open hostility in the aftermath of the Waco siege and shootout. And in Mueller, Ashcroft had a man who was motivated not only by a sense of duty and patriotism but by the kind of institutional loyalty that can make a person even more dedicated. The FBI’s intelligence failures had initially led to proposals for a new agency dedicated to domestic intelligence, an idea that would gain steam in the years to come. In February 2003, for instance, Senator John Edwards (D-­NC) called for the creation of a Homeland Intelligence Agency to “replace FBI units that failed to uncover the September 11 terrorists and still cannot find suspected al Qaeda operatives in the United States.” A domestic intelligence agency was also on the 9/11 Commission’s radar, and White House officials were considering it throughout the early post-­9/11 years. None of these proposals gained much traction, but Mueller took the fact that the subject was under discussion as a cue to put in motion several programs designed to maintain the FBI’s hold on domestic intelligence. Mueller was successful, though the threat of domestic intelligence agencies would linger for several years. When the 9/11 Commission finally issued its report, it noted that its recommendation to keep domestic intelligence at the FBI was valid only if the bureau “can do the job.”

Mueller met these challenges by setting up new programs that would focus on intelligence collection both at home and abroad, with more resources, better technology, and an expansion of intelligence functions already in place. But some of the hurdles were not the result of internal disarray; nor could they be fixed directly by Mueller. They were the result of the suspicion of governmental power woven into the Constitution, and especially the Fourth Amendment’s guarantee against searches and seizures. The framers had prevented the state from forcibly entering people’s homes and sifting through their papers and effects—­precisely the kind of power that a law enforcement agency bent on ferreting out “evil­doers” and stopping them might like to have. But Congress could pass laws that pushed against the boundaries of the Constitution and let the courts sort out whether they were permissible. That was just what Mueller needed, and for this he was dependent on his boss, who would have to persuade legislators to give the FBI more power to expand its intelligence capabilities.

Within two weeks of 9/11, Ashcroft had done exactly that. On September 25 he appeared before the Senate Judiciary Committee with a sobering message: “I regret to inform you that we are today sending our troops into the modern field of battle with antique weapons.” But there was good news, too, he said. In the two weeks since the attacks, the DOJ had assembled a twenty-­one-­page proposal for a so-­called Anti-­Terrorism Plan that would provide “new tools to fight terrorism.” The bill was called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001—­a title whose first letters spelled out USA PATRIOT. The acronym was awkward, to say the least, but as Ashcroft explained, it described “the true nature of the battle”: stop terrorism before it could start. The name was also excellent public relations; it was impossible to imagine anyone but a traitor objecting to a patriot act.

The act amended 108 preexisting criminal justice statutes and created nine new ones, changes designed to equip the country’s law enforcement agencies with new weapons to fight the intelligence battles of the war on terror. Agents could now search telephone and email records, get access to individual and corporate financial data, and search homes and businesses—­all expanded powers that reduced the protections of the Fourth Amendment. Some activities, such as wiretapping, still required court orders, but the act made those orders much easier to obtain. It also allowed for the indefinite detention of immigrants suspected of having ties to terrorist groups—­not only to prevent them from committing violence but also to make them available for interrogation. In short, the Patriot Act privileged intelligence collection over constitutional protections.

In case members of Congress objected to this turnabout, Ashcroft was ready with some explanations. The new approach to search and detention was necessary, he told them, because “our fight against terrorism is not merely or primarily a criminal justice endeavor. It is a defense of our nation and its citizens.” In sum, Ashcroft explained, “We cannot wait for terrorists to strike to begin investigations and to take action. The death tolls are too high, the consequences too great.” This approach would not suffice when it came to terrorism, he continued: “We must prevent first, prosecute second.”

“Of course,” he assured lawmakers, the FBI and other law enforcement officials would exercise their new powers with “careful regard for the constitutional rights of Americans and respect for all human beings.” Ashcroft did not say exactly how he intended to square that restraint with warrantless searches of Americans and indefinite detention of foreigners held in custody without access to the federal courts. But then again, he didn’t really have to. The country was still in a state of panic, and questioning the need for strong action seemed naïve at best and dangerous at worst. Only one senator, Russ Feingold (D-­WI), and sixty-­six representatives voted against the bill, and on October 23 the Patriot Act, the most significant reshaping of Americans’ relationship to the power of their government at least since the Alien Act of 1918 (or perhaps ever), became the law of the land. Suspicion of governmental power—­a tendency of many conservatives—­had given way to a hope that a powerful government could keep the country safe by preventing future attacks.

Of all the provisions of the Patriot Act, a section that would make it easier for intelligence and law enforcement agents to talk to one another was of particular significance to the top officials of the Justice Department—­especially Michael Chertoff, the head of its Criminal Division. Chertoff, a former federal prosecutor under US Attorney Rudolph Giuliani, was the senior on-­duty official from Main Justice—­the Justice Department’s headquarters—­working at FBI headquarters on the morning of 9/11. He spent the following days poring over files, trying to figure out how such a large operation had escaped notice. He came across one file that was so disturbing that he sprang from his chair and rushed into Ashcroft’s office. “John,” he said, “you won’t believe this.”

Chertoff handed his boss a memo—­a report from an FBI agent who had written, “This is a guy who could fly an airplane into the World Trade Center.” The guy in question was Zacarias Mous­saoui, a thirty-­three-­year-­old French citizen of Moroccan descent. In early August 2001, Mous­saoui had shown up at the Pan Am International Flight Academy in a suburb of Minneapolis, seeking time on the school’s 747 simulator. Clarence Prevost, the flight instructor who first brought suspicions about Mous­saoui to the FBI’s attention, said that it wasn’t only the hundred-­dollar bills Moussaoui used to pay the $8,300 training fee that got his attention; it was also the fact that despite the fifty or so hours he’d spent on lessons in a single-­engine plane, Mous­saoui had failed to get a pilot’s license; that once seated at the simulator, he clearly had no idea what he was doing; and that when Prevost asked him if he was Muslim, the otherwise genial student flared up and yelled, “I am nothing!”

Prevost, a retired commercial pilot, alerted his bosses. “We don’t know anything about this guy,” he told them, “and we’re teaching him how to throw the switches on a 747.” At first, they dismissed Prevost’s concerns and reminded him that Mous­saoui was a paying customer. But the next...

Revue de presse

A KIRKUS REVIEWS BEST BOOK OF 2016

"Karen Greenberg’s new book, Rogue Justice, takes on a challenging task: adding new insight to our understanding of the long-running legal battles surrounding the post-9/11 fight against terrorism. Those who have followed U.S. detention and interrogation, surveillance and targeting policies for the past 15 years have been spoiled by a bounty of rich journalistic accounts of the legal debates inside the government and out... But Greenberg has a wider ambition. She aims to assess the damage these practices have done to law in the United States. As she frames it, the picture is grim... Given this stark framing, one might worry that what follows is a one-sided account. But Greenberg rightly tells a more nuanced story."
—WASHINGTON POST

"Clear and engaging... an important reminder of the Bush administration's excesses."
—FOREIGN AFFAIRS

"Detailed and meticulously researched... [an] excellent book... [and] an unflinching document."
—JUST SECURITY

“A terrifying history of American surveillance in the 21st century... The author fully explains the government's panicked motivation for permitting torture and secretly watching its own citizens. Yet the book's central question is timeless: once a government takes rights away, can they ever be restored? ... A sophisticated study of executive tyranny in the never-ending war on terror.”
—KIRKUS REVIEWS (starred)

"Rogue Justice is Karen Greenberg’s splendid new book about all the ways liberty was assaulted in America in the decade after the cataclysm of 11 September 2001...By connecting so many of the dots in the War on Terror, the author has made her own very important contribution."
—THE GUARDIAN
 
“[Greenberg’s] attention to how seemingly minor changes can hobble longstanding constitutional protections recalls Michelle Alexander's The New Jim Crow...What Alexander's work illuminates for mass incarceration, Rogue Justice does for the national-security state, detailing the subtle and unsubtle power grabs that eroded U.S. commitment to the rule of law.”
—COURTHOUSE NEWS SERVICE

“There is nobody I would rather read than Karen Greenberg on the collision of public fears, core legal values and the insatiable demands of the national security state. Rogue Justice is no political tract. It is a measured, richly informed and gorgeously written narrative of well-meaning presidents, lawmakers, judges and bureaucrats who lost their bearings after 9/11. Greenberg knows these people. They are not cartoons to her. Many of them have passed through her New York policy salon, where Greenberg holds court over a revolving cast of soldiers, spies, cops, geeks, public officials and some of their fiercest critics. She is immersed in their worlds, yet uncaptured. Rogue Justice offers a behind-the-scenes tour that blends fresh insights with stories that we have not heard before.”            
—BARTON GELLMAN, author of Angler: The Cheney Vice Presidency

“In her indispensable book, Karen Greenberg documents the death of American liberty by a thousand cuts. In these times of dangerous fearmongering, she reminds us of how fragile American democracy is and why it is vital that we confront fear with courage, and stay true to our best principles.”
—KATRINA VANDEN HEUVEL, editor and publisher, The Nation

“Rogue Justice is the definitive account of the legal machinations behind the 'war on terror.' 9/11 America's top lawyers argued for and defended torture, mass surveillance and indefinite detention. Karen Greenberg expertly guides us through the thicket of legal questions generated by the war on terror, laying out with great clarity the stakes involved and painting deft portraits of the key players who set the nation down a path we associate more with banana republics than with American ideals.”
—PETER BERGEN, author of United States of Jihad and Manhunt

“Rogue Justice vividly tells a decade long story of how the US justice system and those entrusted to ensure the rule of law facilitated the birth and expansion of the post 9/11 security state.”   
—RICHARD A. CLARKE, former National Coordinator for Security and Counter-terrorism; author of Cyber War

 "Rogue Justice is a blistering indictment of the way that America’s leaders, steered by fear in the wake of the 9/11 attacks, retreated from the very principles on which the nation was founded. In clear, sober prose, Greenberg gives us a vital overview of the way that the administrations of Bush and Obama pursued, in growing secrecy, increasingly unrestrained executive power and weakened the Bill of Rights in ways that led to torture, targeted killings and mass surveillance. Thankfully, she also offers us profiles in courage of those mostly unsung heroes who resisted.  It is a cautionary tale of the fragility of the rule of law, and a clarion call for all Americans to stand up to terror with the courage of our convictions.”           
—ALEX GIBNEY, director of Taxi to the Dark Side and Going Clear

“Rogue Justice reads like a well-honed argument delivered to a jury. Greenberg has wrestled complex questions of law and policy into a clear, compelling narrative that shows us how the United States abandoned its principles of justice and due process during the war on terror, and why we must fight to bring them back. A must-read for anyone who cares about the Constitution.”
—ANTHONY ROMERO, executive director, ACLU

“9/11 changed America. This invaluable book shows how close we came to losing many of the basic principles that underlie our system of justice – and how much we still have to do to protect the basic principles that make our country a beacon for human rights.”
—LAWRENCE WRIGHT, author of The Looming Tower and Thirteen Days in September

“Karen Greenberg is one of our leading national security experts, and her book combines sweeping narrative with deep analysis, yielding a powerful history of the legal aspects of counterterrorism policy since 9/11. Rogue Justice is an unprecedented achievement that will change the way we think about the rule of law in this country.”
—ALI SOUFAN, author of The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda

Détails de l'édition

• Éditeur: Crown Archetype
• Date d'édition: 2016
• Langue: anglais
• ISBN 10: 0804138214
• ISBN 13: 9780804138215
• Reliure: Relié
• Nombre de pages: 336
• Coordonnées du fabricant: non disponible
• Personne responsable: MUSIC STORE professional GmbH; 022188841282; Lars.Mueller@musicstore.de; ; Istanbulstr. 22-26; Köln; 51103; Allemagne