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General News    H3'ed 10/3/16

Tomgram: Karen Greenberg, What Actually Keeps Americans Safe

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Since 9/11, untold sums of money have gone into building up the national security state. That includes new billion-dollar-plus headquarters for some of its agencies, hiring outside contractors by the bushelful, and creating a system of global surveillance the likes of which would once have been inconceivable even for the rulers of totalitarian states. It includes the National Security Agency constructing in Georgia "the world's largest listening post" focused only on the Middle East. James Bamford describes it as a "$286 million, 604,000-square-foot facility [that] has more than 2,500 workstations and 47 conference rooms, and... employs more than 4,000 eavesdroppers and other personnel." And don't forget the facility it constructed in Bluffdale, Utah, a "$2 billion, 1-million-square-foot complex... to function as the centerpiece of the NSA's global eavesdropping operations" into which "would flow streams of emails, text messages, tweets, Google searches, financial records, Facebook posts, YouTube videos, metadata, and telephone chatter picked up by the constellation of" America's satellites, cable taps, and listening posts. The national security state now houses 16 major intelligence outfits, not including the office of the director of national intelligence, and boasts an intelligence black budget of close to $70 billion a year. And that's just to begin what would be an endless list.

And all of this has essentially been built and expanded on the basis of a single "threat" to the American way of life: terrorism, which means, of course, the terrorism of Islamic extremists, which in the U.S. means the terrorism of unhinged or disturbed individuals who feel deeply aggrieved by and at odds with this society and come, however briefly, to identify with ISIS and its brutal mission, and -- to add yet another element to this mix -- have remarkably easy access to military-style weaponry and ammo galore.

In other words, without Islamic terrorism, which has been responsible for the deaths of a surprisingly modest number of American civilians in these years, the national security state, now the fourth branch of government, would be a far less impressive, less well-funded structure, and its various experiments in governmental overreach, whether in the realms of torture, detention, kidnapping, assassination, the militarization of the police, or surveillance, would have been far less possible. Put another way, that state within a state is joined at the hip to terrorism. And yet here's the strange thing: given the nature of the terrorist threat, no matter how many people it surveils or what kinds of communications it listens in on, no matter the drones in the air or the cameras on the streets, it remains remarkably helpless when it comes to finding the Syed Rizwan Farooks, Dahir Adans, and Ahmad Khan Rahamis of our world. It is incapable of picking those unexpected needles out of the vast haystack of us. In its own strange way, it is, then, remarkably overbuilt, overfunded, and useless in its present muscled-up form. TomDispatchregular Karen Greenberg, director of the Center on National Security at Fordham Law School and author of Rogue Justice: The Making of the Security State, illustrates this point vividly today, offering a clear-eyed view of what such a security state is actually capable of -- and what we abandon needlessly when we bow down before it. Tom

Liberty Is Security
The Lesson Not Drawn From Post-9/11 Government Overreach
By Karen J. Greenberg

One vivid image of the historical relationship between government power and individual liberties in America has long been the swing of the pendulum. It catches the nature of the perpetually changing balance between the two. When it comes to terrorism and civil liberties after 9/11, that pendulum swung strongly toward the power side of the equation and it has been slow indeed to swing back. Still, in several areas in recent years -- torture, detention, and surveillance -- there has been at least some movement in the other direction and from this delayed and modest backswing, there is a distinct lesson to be drawn about liberty and security in twenty-first-century America. The only problem is that no one has bothered to draw it.

Put in a nutshell: the liberties designed almost a quarter-millennium ago by the Founding Fathers still turn out to be curiously well-aligned with the security of this country and the safety of Americans, while the government overreach of this era has proved to be anything but. As it turned out, those heavy-handed government policies meant to pry our lives open in an invasive and expansive way, torture information from suspects, and lock away people forever, it seems, without charges or trial, were remarkably counterproductive and ineffective -- and that reality, rather than the concerns of civil libertarians, was essential to whatever backswing of the pendulum we've seen in recent years.

After 9/11, of course, few could have missed which way that pendulum was swinging. Government overreach in the name of our "security" was quickly apparent from the passage of the Patriot Act, a grab bag of some of the more oppressive proposals for "security" floating around Washington at that time, to the setting up of CIA "black sites" beyond the reach of American law where brutal interrogations could be used. In a similar fashion, the Department of Justice secretly authorized novel readings of presidential power that justified, among other things, the warrantless, bulk surveillance of Americans and non-Americans alike; consigned individuals in U.S. custody to what was politely called "indefinite detention" at a newly constructed prison in Guanta'namo Bay, Cuba, and in military brigs at home; and opened the way for the torture (under the euphemism of "enhanced interrogation techniques") of terror suspects in U.S. custody, including people who turned out to be innocent of anything having to do with terror. All such acts, secret and open, were justified in the name of what was called the Global War on Terror and on the grounds of keeping the country "safe."

Reversing Government Overreach

For years, there seemed little prospect of a shift back from this period of overreach in the name of national security. True, by the end of George W. Bush's first term in office, a handful of Justice Department officials, including current FBI director James Comey, and Jack Goldsmith (now a Harvard professor), were trying to revoke, rewrite, or ameliorate some of the worst of those initial excesses, but with only modest success. By 2006, the CIA's overseas black-site program, in which terrorism detainees were brutally tortured, was ostensibly on its way out and, by the end of the Bush presidency, no more individuals were being sent to Guanta'namo. With the passage of time, and the persistence of lawyers at the American Civil Liberties Union, some headway at least looked possible on the restoration of a more normal sense of American justice and the rule of law.

When it came to interrogation and detention, however, the first significant changes -- and the promise of more to come -- arrived with the Obama presidency. He entered the Oval Office declaring torture once again illegal, withdrawing the memos that supported its use (though his Justice Department would never prosecute any of the torturers, no less the officials who had set them loose to do so), and promising to close Guanta'namo, the country's prison of choice when it came to indefinite detention. Meanwhile, a 2008 Supreme Court decision, Boumediene v. Bush, seemed to mark the beginning of a pendulum swing back in the direction of liberty. It granted habeas rights to Guanta'namo detainees, enabling them for the first time to challenge their detentions in the federal court system.

As it turned out, however, these initial signs of change proved deceptive. The only court authorized to hear such habeas challenges to detention -- the U.S. Court of Appeals in Washington D.C. -- has essentially ensured that there will be no legal relief or recourse for the Guanta'namo detainees. To date, nearly half of those who have sought habeas relief have had their claims rejected outright or on appeal.

While Obama's torture ban remains officially in place, the absence of any accountability for the torturers has opened a space for the future return of such techniques, particularly with a President Trump who, as a candidate, embraced torture "and worse." And when it came to indefinite detention, Obama, once an opponent of the practice, essentially accepted it in the late spring of 2009 by acknowledging that some Guanta'namo detainees could not be prosecuted, but were too dangerous to release. Today, were Guanta'namo to be closed (still possible but an increasingly unlikely prospect), indefinite detention without charges or trial would remain an option for the detainees, even if in a different prison.

On surveillance policy, there has more recently been some movement towards the liberty side of the pendulum. In 2015, two years after NSA whistleblower Edward Snowden revealed the existence of a massive program used to collect the telephone metadata of Americans in bulk, an appellate court declared the program -- established under section 215 of the Patriot Act -- illegal. It pointed out that the laws cited by the government to support it had never previously "been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here." A month later, section 215 was "sunsetted" when Congress did not move to renew the Patriot Act. Like torture, such bulk surveillance has now, however provisionally, been officially restored to its status outside the law.

This surely was cause for a sense of accomplishment among human rights activists and civil libertarians. They had, it seemed, had an impact. Though a distinctly limited victory (given the still expansive possibilities for governmental surveillance in post-9/11 America), it felt like a long sought-after triumph, and in many ways it was. But to grasp what's really been going on, it's necessary to look beyond the protests of constitutional scholars, rights activists, and others.

What Actually Keeps Americans Safe

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Tom Engelhardt, who runs the Nation Institute's ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and, most recently, the author of Mission Unaccomplished: Tomdispatch (more...)

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