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Is America Turning Into A 'Failed State’?

These past few months, it's grown ever harder to recognize life in America. Thanks to Covid-19, basic day-to-day existence has changed in complicated, often confusing ways. Just putting food on the table has become a challenge for many. Getting doctors' appointments and medical care can take months. Many schools are offering on-line only instruction and good luck trying to get a driver's license or a passport renewed in person or setting up an interview for Social Security benefits. The backlog of appointments is daunting.

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Why Accountability In America Is Gone — And How To Restore It

Reprinted with permission from TomDispatch

Whether you consider the appalling death toll or the equally unacceptable rising numbers of Covid-19 cases, the United States has one of the worst records worldwide when it comes to the pandemic. Nevertheless, the president has continued to behave just as he promised he would in March when there had been only 40 deaths from the virus here and he said, "I don't take responsibility at all."

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Now It's America That Needs To Be Saved

Reprinted with permission from TomDispatch

Remember the song "Over There"?
"Over there, over there
Send the word, send the word over there
That the Yanks are coming,
The Yanks are coming,
The drums rum-tumming everywhere..."

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How Coronavirus Advances Trump’s Goals

Reprinted with permission from TomDispatch.

Last month, Donald Trump retweeted a doctored photo of himself playing the fiddle that was labeled "My next piece is called: nothing can stop what's coming." It was clearly an homage to the Emperor Nero who so infamously made music while Rome burned. To it, the president added this comment: "Who knows what this means, but it sounds good to me!"

Whether Trump is fiddling these days or not, one thing is certain: in a Nero-like fashion, he continues to be irresponsibly unresponsive to the crisis caused by Covid-19. One reason may be that, however inadvertently, the arrival of the pandemic has helped green-light plans and projects he's held dear to his heart and that had, before the crisis, repeatedly encountered opposition.

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Contemplating An Unfounding Father

Reprinted with permission from TomDispatch.

In this fast-paced century, rife with technological innovation, we've grown accustomed to the impermanence of things. Whatever is here now will likely someday vanish, possibly sooner than we imagine. Movies and music that once played on our VCRs and stereos have given way to infinite choices in the cloud. Cash currency is fast becoming a thing of the past. Cars will soon enough be self-driving. Stores where you could touch and feel your purchases now lie empty as online shopping sucks up our retail attention.

The ever-more-fleeting nature of our physical world has been propelled in the name of efficiency, access to ever more information, and improvement in the quality of life. Lately, however, a new form of impermanence has entered our American world, this time in the political realm, and it has arrived not gift-wrapped as progress but unpackaged as a profound setback for all to see. Longstanding democratic institutions, processes, and ideals are falling by the wayside at a daunting rate and what's happening is often barely noticed or disparaged as nothing but a set of passing problems. Viewed as a whole, however, such changes suggest that we're watching democracy disappear, bit by bit.

Plenty of Checks But No Balances

A recent sign of our eroding democratic world was on display earlier this month with the eradication of trust in the impeachment process. Impeachment, of course, was the Constitution's protection against the misuse of power by a president. When all was said and done and the Senate had let Donald Trump off the hook, it was clear enough that the power, the threat, of impeachment had itself been thoroughly hollowed out and made ineffectual.

On both sides of the aisle, senators agreed that the president had erred. Republican Lamar Alexander, for example, thought his actions were "wrong" and "inappropriate"; Republican Joni Ernst believed that he had "mishandled" things; while Rob Portman and Susan Collins, echoing Alexander's sentiments, also labeled his actions "wrong." It made no difference. The four of them like all the other Republican senators except Utah's Mitt Romney had, to say the least, no appetite for removing their party's president from office.

But the real lesson the country should have taken home was this: in the future, it would be foolish to place the slightest hope for protecting democracy in the process that Founding Father James Monroe once described as "the main spring of the great machine of government." Today, no matter the facts, impeachment is dead in the partisan waters, an historical anomaly that's long outlived its time.

The failure of impeachment also brought to light the weakness of the constitutional principle of checks and balances. In theory, when it comes to presidential behavior, Congress and the courts have the power to rein in the chief executive. But in this century, both congressional and judicial restraints have proven anemic. One of the many obvious things highlighted by the recent impeachment acquittal in the Senate is Congress's ultimate ineffectuality when it comes to presidential power.

Donald Trump's unabashed willingness to use his veto power in a fulsome, even autocratic, fashion only underscores this presidential reality. Recently, for instance, he confirmed that he will veto any bill passed by Congress requiring that he consult that body before launching military attacks on Iran. If recent history holds any lesson for us, it's that Trump will do no such consulting, especially given the historic weakness of the War Powers Resolution of 1973. Congress passed it to emphasize the necessity of getting its consent for war, but ever since its inception Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama have all found ways around it.

Meanwhile, when it comes to the courts, Attorney General William Barr has boldly stated his belief that the president's power dwarfs that of the other branches of government. "In recent years," he claimed late in 2019, "both the legislative and judicial branches have been responsible for encroaching on the presidency's constitutional authority." True to his word, Barr has worked to ensure that the Justice Department has barely a scintilla of independence from the president, even as he lamented Trump's public display via tweet of controlling the attorney general and that very department.

Of course, Barr's modest protest about that tweeting rang hollow, given his actions. He played the central role in taking the sting out of the Mueller Report by publicly misrepresenting its conclusions before it was released. His Justice Department endeavored to give blanket immunity from testifying to Congress to individuals close to the president, decreeing that they were not compelled to appear, even when subpoenaed to do so — an assertion overruled by a federal judge but left unresolved in the courts to date.

Barr has also publicly rewritten history to contest, as he put it, the "grammar school civics class version of our Revolution… [as] a rebellion against monarchial tyranny." Instead, he claimed, in making their new system, what the founders really feared was the tyranny of the "prime antagonist," the British legislative body or parliament. And within days of the Senate's acquittal of the president, Barr was once again on the march against obstacles to any presidential assertion of power. He even overruled his own prosecutors in the wake of a tweet by the president, and called for a reduction in the seven-to-nine year sentencing recommendations they were planning to make for presidential pal Roger Stone.

Like the impeachment process, the theory and practice of checks and balances now lies in ruin in a country whose billionaire president has written plenty of checks without balances of any sort. Think of him, in fact, as our very own unfounding father.

Questioning the Legitimacy of the American Election System

Tellingly, the failure of the impeachment process and the collapse of the system of checks and balances have coincided with the onset of the primary season for election 2020. And the anti-democratic virus is visibly spreading in that direction as well. Some Senate Republicans, especially Maine's Susan Collins, tried to hide behind the notion that, thanks to his impeachment, if not conviction, President Trump had "learned" a salutary lesson "from this case." Within 24 hours, however, it was clear that the president had "learned" nothing, except that he could do what he pleased. It was, it turned out, the democratic system that had learned a lesson — and not a good one either.

In the case of the caucuses and primaries, those building blocks of presidential elections, our institutions seem as frail and ineffectual as the impeachment process itself. Failing to produce a discernible result in a timely manner, the future not only of the Iowa caucus but of caucuses in general is now being reconsidered. That caucus has, since 1972, been the first moment in the electoral process. It has also long been questioned, given the way that state ill-represents the diversity of the country. But the catastrophic collapse of this year's version of the Iowa caucus process had nothing to do with issues of diversity and everything to do with interference, incompetence, and finally a disastrous "coding error" in an app.

As the New York Times reported, "the irregularities in the results are likely to do little to restore public confidence in the Iowa caucuses." As a result, its days as first in the nation may indeed be over. In fact, caucuses in general may be headed for the graveyard. As former presidential candidate Julian Castro recently tweeted, the lessons learned in Iowa surpassed that of a single state, revealing instead "that our democracy has been mis-served by a broken system." Even Tom Perez, the head of the Democratic National Committee, has weighed in, supporting a conversation about moving from caucuses to primaries in the remaining caucus states.

Once again, an established democratic institution is poised to be tossed into the trash bin of history.

Not surprisingly, an increasingly errant political process is being reflected in the culture at large. To take but one example: the newspaper candidate endorsement. This year, bizarrely enough, for the first time in its history, the New York Times chose to endorse not one candidate but two (Amy Klobuchar and Elizabeth Warren), a gesture that was tantamount to endorsing no one at all.

The paper's editorial board simply punted, stating that they didn't want to choose between two visions: "Both the radical and the realist models warrant serious consideration. If there were ever a time to be open to new ideas, it is now. If there were ever a time to seek stability, now is it." In fact, their endorsement of "the most effective advocates for each approach" suggested that they were really endorsing a category rather than a specific candidate; namely, a woman. As the last sentence of the piece revealingly stated: "May the best woman win."

The Boston Globe promptly followed suit, rejecting the very idea of a candidate endorsement, despite a 200-year history of providing them. The Globe's editorial board argued instead that the first two states in the primary season — Iowa and New Hampshire — were insufficiently diverse to justify their position in the order of primary states. It was time, they explained, "to call for the end of an antiquated system that gives outsized influence in choosing presidents to two states that, demographically, more resemble 19th-century America than they do the America of today." Essentially, they did what the New York Times had done. They chose to take a stand on an issue rather than on a candidate. Are endorsements, too, no longer a piece of the disintegrating American political process? (A week later, The Las Vegas Sun likewise hedged its bet and endorsed two candidates rather than one; in its case, Joe Biden and Amy Klobuchar.)

The truth is that the very legitimacy of the American electoral system is now in question. Given Russian interference in the 2016 election (verified by a Senate Intelligence Committee report), not to mention reports on the same in the 2020 campaign, the increasing successes of aggressive voter suppression campaigns and lawsuits, and oft-repeated mantras from Donald Trump and his followers about potentially "rigged" elections, doubts aplenty are already afloat about the legitimacy of next November's election results, no matter what happens on the ground.

The Great Unraveling

As 2020 dawns, this erosion of our democratic institutions hardly comes out of the blue. Democratic principles have been visibly eroding since the beginning of this century. As I described in my book Rogue Justice: The Making of the Security State, the build-up in presidential powers began with George W. Bush who, after the 9/11 attacks, claimed that a "unitary" presidency was a more viable form of government than that prescribed by any separation-of-powers doctrine and its promise of checks and balances. Citing a national emergency that September, he would launch his "global war on terror" through a series of secret programs, including an offshore system of torture and injustice that left Congress, the courts, and the American public largely out of the conversation.

In the process, he removed the need for true accountability from the imperial presidency and the administration that went with it. Whether intentionally premising the decision to invade and occupy Saddam Hussein's Iraq on a lie, staunchly refusing to prosecute those who implemented a policy of torture for suspects in the war on terror hatched in the White House and the Justice Department, or allowing a vast, warrantless, secret surveillance program against Americans as well as foreigners after 9/11, the Bush presidency shredded the concept of executive restraint. In the process, it left its unchecked acts on the table for any future president.

Barack Obama chose to "look forward" not back when it came to the CIA's global torture program and continued to run the war on terror under the expansive Authorization for the Use of Military Force passed by Congress in September 2001.In the process, by avoiding accountability for the new version of an imperial presidency, he left the door open for Donald Trump to begin to create what could, in essence, prove to be a system of executive autocracy in this country.

Given the precedents created in the post-9/11 years, it really should be no surprise that President Trump ignores legalities and precedent, while refusing to observe restraints under the guise of security concerns, and expects not to face accountability. In the process, there is no question that the Trump presidency has already taken the template of the untethered executive and its anti-democratic excesses to a new level, simultaneously defying restraints while brazenly purging anyone who might disagree with him.

As Peter Bergen pointed out in discussing his new book, Trump and His Generals: The Cost of Chaos, with the resignations or firings of generals once in top cabinet positions, Trump has succeeded in surrounding himself with "a group of yes-men, a small amount of yes-women, and family members." Indeed, week by week, executive departments are rearranged and re-staffed to fill the administration with those willing to say yes, and only yes, to whatever the president wants.

Thirty-four years ago, Arthur Schlesinger, Jr., described American history as moving in 30-year cycles, alternating between liberal and conservative eras that, over the long haul, kept the Constitution and the country in balance. And indeed, there have been a few glimmers of light on the horizon recently, including a willingness of the courts, for instance, to halt an executive order allowing state and local officials to reject the resettlement of refugees in their communities.

But examples like that are too few and far between to qualify even as serious indicators of a cyclical return to normalcy, while, strand by strand, our democratic fabric is unravelling before our eyes. Unfortunately, Americans have all too often looked the other way as disappearing customs, principles, and institutions threaten to turn fundamental pillars of American democracy into relics from the past, as obsolete as the black-and-white television sets of my childhood.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law, as well as the editor-in-chief of the CNS Soufan Group Morning Brief. She is the author and editor of many books, including Rogue Justice: The Making of the Security State and The Least Worst Place: Guantánamo's First 100 Days. Julia Tedesco contributed research to this article.

Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer's new dystopian novel (the second in the Splinterlands series) Frostlands, Beverly Gologorsky's novel Every Body Has a Story, and Tom Engelhardt's A Nation Unmade by War, as well as Alfred McCoy's In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower's The Violent American Century: War and Terror Since World War II.

Copyright Karen J. Greenberg

What Child Detentions At The Border Are Telling Us

Lately, I’ve been thinking about the Grimms’ fairy tale Hansel and Gretel. Terrified by cruel conditions at home, the brother and sister flee, winding their way, hungry and scared, through unknown woods. There, they encounter an old woman who lures them in with promises of safety. Instead, she locks one of them in a cage and turns the other into a servant, as she prepares to devour them both.

Written in nineteenth-century Germany, it should resonate eerily in today’s America. In place of Hansel and Gretel, we would, of course, have to focus on girls and boys by the hundreds fleeing cruelty and hunger in Central America, believing that they will find a better life in the United States, only to be thrown into cages by forces far more powerful and agents much crueler than that wicked old woman. In the story, there are no politics; there is only good and bad, right and wrong.

Rather than, as in that fairy tale, register the suffering involved in the captivity and punishment of those children at the U.S.-Mexican border, the administration has chosen a full-bore defense of its policies and so has taken a giant step in a larger mission: redefining (or more precisely trying to abolish) the very idea of human rights as a part of this country’s identity.

This week, Secretary of State Mike Pompeo left no doubt: The reality of those children locked in cages, deprived of the most basic needs, and brazenly abused by the administration he works for has been an essential part of the Trump team’s determination to abandon human rights more generally. That willingness to leave children unprotected is part of a far larger message, not merely an unfortunate byproduct of ill-thought out and clumsy actions by an overwhelmed border police force.

Children in Detention Camps

The story of the children at the border is indeed gruesome. The United States has long had migrants pushing at its southern border, often in larger numbers than at present. In fact, since the 1980s, the numbers crossing that border exceeded one million in 19 different years. While U.S. Customs and Border Protection (CBP) continues to estimate that current immigration rates are on track to exceed one million by September, many other experts don’t think it will even happen this year.

What’s genuinely new with the current border crossings is the number of children among the migrants. According to Acting Secretary of Homeland Security Kevin McAleenan’s sobering recent testimony before the Senate Judiciary Committee, 72 percent of all border enforcement actions in May were associated with unaccompanied children and family units. And while last month the government officially stopped its cruel policy of separating families, leaving many of those children (even toddlers and babies) alone in custody, Vox reports that “at any given time, for the past several weeks, more than 2,000 children have been held in the custody of U.S. Border Patrol without their parents.”

The conditions in the camps, strewn along the U.S. borderlands from Arizona to Texas, are shameful and fall most harshly on those very children. A recent Department of Homeland Security Inspector General report, issued in redacted form just days before the July 4th holiday celebrating the birth of this country as a beacon of “life, liberty and the pursuit of happiness,” described the staggering squalor and danger at such confinement facilities. There, children were often deprived of changes of clothes, beds, hot meals, toothbrushes, soap, showers, even adequate medical attention. Other eyewitness accounts have provided graphic details on the nature and scale of the deprivation, showing us children in soiled diapers, living with the stench of urine, sleeping on concrete floors, many weeping. On the somewhat more civilized floor of the Senate, members were told of children sleeping outside, exposed to the elements, and of the spoiled food at the camps.

Add to this the emotional toll that family separations have wrought on thousands of young people, as a new report issued by the House of Representatives Oversight Committee reveals and as others have documented. An El Paso immigration lawyer visiting one facility, for instance, described seeing a young boy who had scratched his own face until it bled. There are first-hand accounts by visitors to the camps of children trying to choke themselves with the lanyards from their own identification cards and others who dreamed about escaping by jumping out of windows high above the ground.

No wonder at least seven children have died while in such circumstances and many more are suffering from lice, scabies, chickenpox, and other afflictions. Yet when doctors from the American Association of Pediatricians traveled to the camps to offer their help, their services were refused. Michelle Bachelet, the U.N. Commissioner for Human Rights, herself a pediatrician, has labeled the situation of the migrants “appalling” and noted that “several U.N. human rights bodies have found that the detention of migrant children may constitute cruel, inhuman, or degrading treatment that is prohibited by international law.” Others have been less circumspect, explicitly comparing the treatment of the children to torture.

It’s hard not to assume that, however overwhelmed CBP may be, at least some of this treatment is intentional. Why else turn away doctors offering help or refuse supplies of donated aid sent by worried citizens? Why arrest a humanitarian aid volunteer who gave food and water to two ill and desperate undocumented Central American migrants and tried to get them medical help? The administration acknowledges that the overall situation is dire, but its officials on the spot have basically thrown up their hands, complaining that they have been “overwhelmed” by the situation they created, are “not trained to separate children,” and are powerless to address the problem of scarce resources.

While those on the ground have claimed helplessness in the face of the challenge, the rest of the administration refuses even to admit to the appalling conditions. (“They are run beautifully,” said President Trump of the border facilities, blaming the Democrats for any problems there.) Instead, top officials have repeatedly called the disgracefully unacceptable acceptable. Former Department of Homeland Security Secretary Kirstjen Nielsen, who bore responsibility for creating much of the mess, assured Congress that the children were “well taken care of,” claiming that “we have the highest standards.” Former Attorney General Jeff Sessions echoed her words. “The children,” he insisted, “are well cared for. In fact, they get better care than a lot of American kids do.”

In court, Department of Justice lawyer Sarah Fabian refused to admit that the absence of soap, a toothbrush, a bed, and sleep constituted unsafe and unsanitary conditions, the legal standards applying to the detention of migrant children. The U.S. Border Patrol chief for the El Paso region callously remarked, “Twenty years ago, we were lucky if we had juice and crackers for those in custody. Now, our stations are looking more like Walmarts, with diapers and baby formula and all kinds of things, like food and snacks.” Vice President Mike Pence highlighted the refusal to acknowledge reality recently by calling the two camps he visited, neither solely for children, but one housing families, examples of “compassionate care… care that every American would be proud of.”

Really? In whose world are filth, disease, and persistent emotional cruelty acceptable? In what America is the brutal incarceration of children not a violation of founding principles? In what America is rejecting the advances in protections that have been a hallmark of U.S. and international policy since the Second World War standard operating procedure? Since when do American officials just throw up their hands and declare defeat (as a kind of victory of cruelty) rather than muster their best talents, energies, and resources to confront such a problem? The answer, of course, is in Donald Trump’s America. And don’t for a moment think that this is just a matter of the piling up of unintended consequences. It’s not.

A Declaration of Inhuman Rights

Recently, Secretary of State Mike Pompeo offered some insights into the mindset of such an administration when it comes to the country’s longstanding embrace of the very idea of human rights. Soon after July 4th, he announced the creation of a new Commission on Unalienable Rights at the State Department. Its purpose, he claimed, was to rethink the spread of human rights protections as a part of American foreign policy. The very idea of rights, Pompeo insisted, had spun out of control. “Human-rights advocacy has lost its bearings and become more of an industry than a moral compass,” he said, wagging his finger at 70 years of history. “‘Rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.”

Rather than expand rights further, he explained, the country would do well to return to (his idea of) the context of the founding fathers and explore just what they really meant in their classic writings. Essential to his goal, experts suggested, was rolling back abortion rights. A remarkable number of the commission members were, in fact, known for their anti-abortion positions and this should have surprised no one, since the State Department had already withdrawn all health assistance from international organizations that offer abortion counseling and care. In doing so, it expanded what, in administrations, were more modest restrictions on abortion-related care. Striking as such a global anti-abortion-rights position might be, however, Pompeo’s urge seems far grander. His goal is evidently to unilaterally reject the evolution of human rights that has prominently defined the country since the post-World War Two era, and that has been an essential piece of American democratic rhetoric since its founding.

To begin the process, Pompeo promptly misappropriated the very language of the Declaration of Independence to promote an agenda explicitly calling for the removal of rights. “My hope,” he announced, “is that the Commission on Unalienable Rights will ground our understanding of human rights in a manner that will both inform and better protect essential freedoms — and underscore how central these ideas are not only to Americans, but to all of humanity.” As the rest of his comments showed, he was invoking the freedom to deprive others, exclude others, and cause hardship for others. Placed alongside the border realities, it was a testament to the administration’s determination to erase rights from the nation’s identity. Putting a fine point on his goals, Pompeo added that, in his view, human rights and democracy were distinctly in opposition to each other. As he pungently put it, “Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.”

Pompeo’s attempt to recast the founders’ intent in the context of today’s cruelty may be the most full-throated articulation to date of what this administration has been up to. The ongoing mistreatment of children at the border, a story that has lasted for well over a year, suggests that the spirit of Pompeo’s Declaration of Inhuman Rights has long been on the agenda. He had one thing right, however: Those border camps do seem to belong to another place and time, one that preceded the U.N.’s 1948 Universal Declaration of Human Rights, another document he invoked, intending to reshape American adherence to it.

The New Status Quo

This is hardly the first time the Trump administration has revealed its cynicism over democracy. Redefining the very purpose of “liberal democracy,” as I wrote more than a year ago, had been part of its mission since the beginning. In its first 18 months, the administration removed the language of democracy from the mission statements of many of its departments, including the phrase “nation of immigrants” from that of the U.S. Citizenship and Immigration Services. Still, after two and a half years of reorienting the executive branch of government away from equal protection under the law, the equal right to vote, and a respect for the very idea of welcoming immigrants, Pompeo’s “commission” may be the most brazen conceptual act yet when it comes to erasing the language of human rights from the country’s identity.

It’s in this still-developing context that the migrant children crisis should be understood. It should be seen as a graphic version of the insistence of this administration on changing the very meaning of “life, liberty and the pursuit of happiness” in the modern age. For Pompeo (as for his president), the evolution of the country towards more rights for more people is nothing but a mark of shame. How far back would he take us? To before the Civil War?

No wonder, on learning each day’s news from the border, it’s easy to feel we’ve entered a dismal fairy tale from an age of ogres and witches, where the forces of evil and ill will have taken charge and the prospect of saving helpless children seems as irretrievably long gone as those crumbs eaten by the birds following Hansel and Gretel on their grim journey into the witch’s lair. Attacking the most vulnerable among us — infants, toddlers, young children, teens — leaves little room for doubt. This administration is determined to undo the country’s commitment to human rights and so change its identity in a way that should concern us all.

Redacting Democracy: What You Can’t See Can Hurt You

Reprinted with permission from TomDispatch.

The Nobel Prize-winning Czech author Milan Kundera began his 1979 novel, The Book of Laughter and Forgetting, by describing two photographs. In the first, two men are standing side by side, a Czech nationalist later executed for his views and the country’s Communist ruler. In the second, the dissenter is gone, airbrushed out. Just the dictator remains. Today, if Kundera hadn’t written that opening to his book, only someone with a long memory or a penchant for research would know that the two men had ever shared a podium or that, on that long-gone day, the dissident had placed his fur hat on the dictator’s cold head. Today, in the world of Donald Trump and Robert Mueller, we might say that the dissident was redacted from the photo. For Kundera, embarking on a novel about memory and forgetting, that erasure in the historical record was tantamount to a crime against both the country and time itself.

In the Soviet Union, such photographic airbrushing became a political art form. Today, however, when it comes to repeated acts meant to erase reality’s record and memory, it wouldn’t be Eastern Europe or Russia that came to mind but the United States. With the release of the Mueller report, the word “redaction” is once again in the news, though for those of us who follow such things, it seems but an echo of so many other redactions, airbrushings, and disappearances from history that have become a way of life in Washington since the onset of the Global War on Terror.

In the 448 pages of the Mueller Report, there are nearly 1,000 redactions. They appear on 40% of its pages, some adding up to only a few words (or possibly names), others blacking out whole pages. Attorney General William Barr warned House Judiciary Committee Chairman Jerry Nadler (D-NY) about the need to classify parts of the report and when Barr released it, the Wall Street Journal suggested that the thousand unreadable passages included “few major redactions.” On the other hand, House Appropriations Committee Chairwoman Nita Lowey was typical of congressional Democrats in suggesting that the speed — less than 48 hours — of Barr’s initial review of the document was “more suspicious than impressive.” Still, on the whole, while there was some fierce criticism of the redacted nature of the report, it proved less than might have been anticipated, perhaps because in this century Americans have grown used to living in an age of redactions.

Such complacency should be cause for concern. For while redactions can be necessary and classification is undoubtedly a part of modern government life, the aura of secrecy that invariably accompanies such acts inevitably redacts democracy as well.

Redaction, like its sibling deletion, is anything but an unprecedented phenomenon when it comes to making U.S. government documents public. My generation, after all, received the Warren Commission Report on the assassination of President John F. Kennedy with significant redactions in the very records on which it was based. And who among us could forget that infamous 18-and-a-half minute gap in the tapes President Richard Nixon secretly used to record Oval Office conversations? That particular deletionwould prove crucial when later testimony revealed that it had undoubtedly been done to hide evidence connecting the White House to the Watergate

Still, even given such examples, the post-9/11 period stands out in American history for its relentless reliance on redacting material in government reports. Consider, for instance, the 28 pages about Saudi Arabia that were totally blacked out of the December 2002 report of the Joint Congressional Inquiry into the failure to prevent al-Qaeda’s attacks that fateful day. Similarly, the 2005 Robb-Silberman Report on Weapons of Mass Destruction, classified — and therefore redacted — entire chapters, as well as parts of its chief takeaway, its 74 recommendations, six of which were completely excised.

Infamously enough, the numerous military reports on the well-photographed abuses that American military personnel committed at Abu Ghraib, the Iraqi prison, came out with substantial redactions. So, too, have the reports and books on the CIA’s use of enhanced interrogation techniques on war on terror detainees held at its “black sites.” In FBI agent Ali Soufan’s book, The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda, for example, large portions of a chapter on Abu Zubaydah, an al-Qaeda figure who was brutally waterboarded 83 times, were redacted by the CIA. It mattered not at all that Soufan had already testified in a public hearing before Congress about his success in eliciting information from Zubaydah by building rapport with him and registered his protest over the CIA’s use of brutal techniques as well. And the nearly 400-page executive summary of the extensive Senate Select Intelligence Committee’s Torture Report was partially redacted, too, even though it was already a carefully chosen version of a more than 6,700-page report that was not given a public airing.

It’s worth noting that such acts of redaction have taken place in an era in which information has been removed from the public domain and classified at unprecedented levels — and unacceptable ones for a democracy. In the first 19 years of this century, the number of government documents being classified has expanded exponentially, initially accelerating in the immediate aftermath of 9/11. Between 2001 and 2005, for instance, the number of government documents classified per year doubled. Even former New Jersey Governor Tom Kean, chairman of the 9/11 Commission, pushed back against the growing urge of the national security state to excessively classify — that is, after a fashion, redact — almost any kind of information. “You’d just be amazed at the kind of information that’s classified — everyday information, things we all know from the newspaper,” he said. “We’re better off with openness. The best ally we have in protecting ourselves against terrorism is an informed public.”

Along the same lines, well-known judges in national security cases have repeatedly commented on the way in which information that, to their minds, did not constitute sensitive material was classified. For example, Judge T.S. Ellis III, who has overseen numerous high-profile national security cases, admitted his “firm suspicion that the executive branch over-classifies a great deal of material that does not warrant classification.” Ellis’s colleague, Judge Leonie Brinkema, underscored the obstacles classification imposed in the trial of now-convicted terrorism defendant Zacarias Moussaoui, expressing her frustration at the “shroud of secrecy that had hampered the prosecution of the defendant.” Other judges have echoed their sentiments.

In the first days of his presidency, Barack Obama declared his intention to reverse the trend towards over-classification. His administration then issued a memo, “Transparency and Open Government,” that promised “an unprecedented level of openness in government.” In April 2009, he also ordered the release of the 2002-2005 memos from the Office of Legal Counsel that had been written to justify the “enhanced interrogation techniques” that President George W. Bush’s top officials had put in place for use in the Global War on Terror. In 2010, Obama also signed into law the Reducing Over-Classification Act aimed at decreasing “over-classification and promot[ing] information sharing across the federal government and with state, local, tribal, and private sector entities.” And for a time, the rate of classification of new documents did indeed drop.

In the end, though, it proved impossible to stanch, no less reverse the urge to keep information from the public. As Obama explained, “While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security.”

Another government tactic that, as with former FBI agent Soufan’s book, has given redaction a place of pride in Washington is the ongoing strict pre-publication review process now in place. Former public servants who worked in intelligence and other positions requiring security clearances (including former contractors) and then wrote books about their time in office must undergo it. In April, the Knight First Amendment Institute and the ACLU focused on this very issue, jointly filing suit over the pre-publication review of such books, citing, among other things, the First Amendment issue of suppressing speech. In the words of Harvard law professor Jack Goldsmith and Yale law professor Oona Hathaway:

“Clearly, the government has a legitimate interest in preventing disclosure of classified information. But the current prepublication review process is too expansive, slow, and susceptible to abuse… In an era characterized by endless war and a bloated secrecy bureaucracy, the restrictions on commentary and criticism about government policies and practices pose an intolerable cost to our democracy.”

And bad as the urge to redact has been, in recent times the Trump administration and the national security state have taken its spirit one step further by trying to prevent the actual reporting of information. In March, for instance, President Trump issued an executive order revoking the need for the Pentagon to make public its drone strikes in the war on terror or the civilian casualties they cause. In a similar fashion, the American military command in Afghanistan announced its decision to no longer report on the amount of territory under Taliban control, a metric that the previous U.S. commander there had called the “most telling in a counterinsurgency.” Similarly, President Trump has repeatedly displayed his aversion to any kind of basic note taking or record-keeping during White House meetings with aides and lawyers (as the Mueller Report pointed out).

In this century, the American public has learned to live in an increasingly redacted world. Whether protest over the level of redactions in the Mueller report will in any way change that remains doubtful, at best.

Certainly, Nadler has been insistent that the Judiciary Committee should see the entire unredacted report. At the recent Judiciary Committee hearing that Attorney General Barr refused to attend, the Judiciary chair acknowledged the dangers to democracy that lie in an increasing lack of transparency and accountability. “I am certain,” he said, “there is no way forward for this country that does not include a reckoning of this clear and present danger to our constitutional order… History will judge us for how we face this challenge. We will all be held accountable in one way or another.”

As he suggested, democracy itself can, in the end, be redacted if the culture of blacking-out key information becomes Washington’s accepted paradigm. And with such redactions goes, of course, the redaction of the very idea of an informed citizenry, which lies at the heart of the democratic way of life. Under the circumstances, perhaps it’s not surprising that polls show trust in government in steady decline for decades (with a brief reversal right after 9/11).

In the end, blacking out the record of the grimmest aspects of our own recent history will leave American citizens unable to understand the country in which they live. Informed or not, we all share responsibility for the American future. As with that photograph in the Kundera novel, our children may one day see the consequences of our past acts without truly recognizing them, just as many Czechs who saw that photo Kundera described undoubtedly thought it represented reality.

The record of how democracy is being redacted — sentence by sentence, passage by passage, fact by fact, event by event — would surely have rung a bell with Milan Kundera. He summed his own time’s version of the process this way: “The struggle of man against power is the struggle of memory against forgetting.” Today, Americans are forgetting.

Karen J. Greenberg is the director of the Center on National Security at Fordham Law and editor-in-chief of the CNS Soufan Group Morning Brief. She is the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Julia Tedesco helped with research for this article.

Defining Down Citizenship In The Age Of Trump

Reprinted with permission from TomDispatch.

It turns out that walls can’t always be seen. Donald Trump may never build his “great, great wall,” but that doesn’t mean he isn’t working to wall Americans in. It’s a story that needs to be told.

This past month, for instance, claims of ISIS’s near total defeat in Syria have continued to mount. As a result, numerous foreigners who had traveled there to fight for, or support, the caliphate have appealed to their home countries to take them back, presumably to stand trial for their support of terrorism. GermanyGreat BritainNew Zealand, and other nations have crafted responses that vary from lukewarm acceptance to outright denial of their citizenship status.

On that score, Donald Trump’s White House hasn’t just led the way, but has used the occasion to put yet more concrete and steel into the great wall his administration has been constructing around the very idea of what it is to be an American. Here in the United States, where the Statue of Liberty has been a welcoming beacon for more than a century, the Trump administration’s response has not just been a fierce aversion to the return of such people, but the use of one of them to help redefine ever more narrowly the very idea of citizenship, of who belongs to this country. In the rejection of the citizenship of a former ISIS bride with child, the president and his advisors have, in an unprecedented way, refused to uphold the rights of U.S.-born citizens, let alone naturalized ones.

Get Out and/or Stay Out

Donald Trump arrived in the Oval Office with an expressed desire to take an axe to the lawful notion of citizenship as either a right or a promise. In the first days of his presidency, he promptly began reducing the number of individuals who might someday be eligible for U.S. citizenship with a Muslim ban against the arrival of anyone from seven largely Muslim countries. During those first days in power, the president also issued an executive order aimed at specifically reducing the number of refugees from Syria who could enter the country, even as he actively advocated for the building of his great wall on our southern border to keep out Mexicans and Central Americans.

But walling Americans in and keeping others out proved only to be a starting point for the most xenophobic president the country had elected in at least a century. On becoming president, Trump made it crystal clear that he meant to reduce the number of non-citizens already living here as well. Yet another of his early executive orders was aimed at rounding up and deporting illegal immigrants who had been in this country, often for decades.

His promise and initial plan, never implemented, was to eliminate the prospect of future citizenship not just for undocumented immigrants already here, but for their children born here who, under the law, were certainly U.S. citizens. And he was true to his word. Over 2017 and 2018, he deported nearly half a million individuals who had come here illegally, many of whom had, until then, lived productive lives in this country for years, if not decades. So, too, he continued to threaten DACA, or “dreamers” program, designed to provide undocumented immigrants who arrived as children with protection against deportation. When it comes to that program, his intent is crystal clear, even if the courts and Congress have slowed him down so far.

Meanwhile, he also turned to naturalized citizens. On them, the Fourteenth Amendment is clear. It grants citizenship to all persons “born or naturalized in the United States andsubject to the jurisdiction thereof.” Under U.S. law, denaturalization can occur only in certain situations, such as if an individual lies on his or her application for citizenship or due to bad conduct — such as membership in a terrorist organization or an other-than-honorable discharge from the armed forces — in the first five years of citizenship.

During Trump’s presidency, there has been an all-out effort to find and prosecute such cases. Between 1990 and 2017, according to the National Immigration Forum, the Department of Justice filed an average of 11 cases of this sort a year. In 2017, that number more than doubled, and 2,500 new investigations were reportedly opened. In June 2018, the DHS even announced plans to create a new office in southern California, whose focus would be uncovering cases ripe for denaturalization.

From undocumented immigrants and asylum seekers to refugees, DACA kids, and naturalized citizens, the pattern has been evident and the message the same: “Get out and/or stay out.” Despite a powerful xenophobic period early in the twentieth century, this attitude has hardly been the essence of a country that, for most of its history, has welcomed strangers and given hope to those in search of safety, security, and the rights and liberties of America’s promise.

No longer. In September 2017, using an American foreign fighter designated as John Doe, the administration went after the concept of dual citizenship, too. Doe had been captured by Kurdish militia in Syria and was then handed over to U.S. forces in Iraq. A dual U.S.-Saudi citizen, he was not brought to this country to be investigated and possibly tried, but secretly held in military detention in Iraq, while being denied access to a lawyer. When the news of his detention was leaked to the media, lawyers at the ACLU filed a habeas corpus petition challenging it.  The courts then put limitations on the government’s plan to transfer this citizen to a third country. Finally, he was reportedly released to Bahrain to join his wife and daughter.

The Ultimate Slippery Slope

Recently, a providential ISIS case has allowed the Trump administration to turn more directly to the denial of citizenship for those born in this country.

Two weeks ago, lawyers representing a young U.S.-born woman, Hoda Muthana, filed papers in the District of Columbia on behalf of her father, challenging the administration on her fate. She had traveled to Syria in 2014, had become an ISIS bride, had borne a child, and now is asking to return to the United States with her son. The Trump administration has barred her from doing so, denying that she is even a citizen, despite the fact that she was issued U.S. passports in 2005 and again in 2014 and is the citizen of no other country. The government’s decision is based on the false claim that, though she was born in New Jersey, her father was then still a Yemeni diplomat serving in the U.S. on a diplomatic visa. Muthana, her family, and her lawyers dispute this claim, correctly insisting that she was born after his visa had ended. At that time, her mother, they also point out, was a legal permanent resident.

At the age of 20, Hoda Muthana, brought up in Alabama, was reportedly radicalized by ISIS online. She then took the money her parents had provided for tuition at the University of Alabama and absconded to Syria. Her goal: to become an ISIS bride.  She married an ISIS fighter and bore him a son. When her husband was killed, she married another fighter, and yet another after his death. Online, she promoted violent acts in the U.S. and elsewhere on behalf of ISIS. “Go on drive bys, and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriots, Memorial, etc. day… Kill them,” she tweeted.

Muthana is now living in a Kurdish displaced-persons camp in Syria where, she claims, she has seen the error of her ways and, on return, is willing to take her chances in a court of law. Thirteen other foreign fighters from the U.S. have already returned home to face trial. In denying her citizenship, however, the Trump administration is obviously using a distinctly unpopular figure, a willing former Islamist terrorist, to strike at the very heart of the idea of citizenship. Depending on how her case is decided in courts that are increasingly filled with judges chosen by President Trump, it could change the way the government handles citizenship for the U.S.-born; and as citizens are at the top of the pyramid, it could strike yet a stronger blow against those with lesser guarantees under the law who are now distinctly in Donald Trump’s sights.

Muthana does not hold dual nationality, which means that any withdrawal of her citizenship would actually violate international law as the Geneva Conventions specify that no person can be rendered stateless by the revocation of his or her citizenship.

In other words, the attempt to block Hoda Muthana’s return represents a potentially giant step by the Trump administration, setting a precedent that could weaken the formerly sacrosanct idea of citizenship in the United States. Consider this the ultimate slippery slope, one that could, over time, transform both the image, and the reality, of what it means to be an American.

Will the Statue of Liberty Be Denied Citizenship?

Halfway through Trump’s presidency, his administration has also moved to use citizenship as an exclusionary factor in other ways, continuing to craft a new, ever more restrictive vision of what it means to be an American. His team has proposed, for example, adding a “citizenship” question to the U.S. Census, taken every 10 years, in hopes of depressing the count of immigrants who are not yet citizens. That, in turn, could change the way political power and federal funding are distributed, reducing voting rights and potentially the number of congressional representatives in a handful of key states, including Arizona, California, Florida, Illinois, New York, and Texas, where the majority of undocumented immigrants reside.

Sued for this proposal on constitutional and procedural grounds, the government lost at the district level in federal court. As U.S. District Court Judge Jesse Furman stated, the attempt to add the citizenship question was “arbitrary and capricious,” as well as “unlawful for a multitude of independent reasons.” Moreover, Furman said, Commerce Secretary Wilbur Ross and his aides “tried to avoid disclosure of, if not conceal, the real timing and the real reasons for the decision to add the citizenship question.” (The Supreme Court is scheduled to hear the case during its spring 2019 term.)

The United States is hardly alone in reconsidering the nature of citizenship in a world where the populist right is obviously on the rise, at least not when it comes to those foreign fighters for ISIS. The German government recently decided that such fighters with dual citizenship will, in the future, lose their German citizenship. New Zealand has agreed to take back an ISIS fighter, recognizing that rendering a person stateless is a violation of the Geneva Conventions. Great Britain has stripped citizenship from several individualsaccused of terrorism or ISIS affiliations, something at least theoretically permissible under the law there (as it is not in the U.S.). And Belgium just decided to revoke the citizenship of two women who joined the Islamic State, while accepting the citizenship of their six children.

In several countries, the conversation is not limited to foreign fighters. A report by the Center for Migration Studies, for instance, concludes that recent actions taken by the Australian, Canadian, and British governments illustrate a troubling expansion of a trend in which the revocation of citizenship is a response to transnational terror threats.

In its urge to build walls of every sort, seen and unseen, however, the Trump administration has taken the global lead in creating a world in which citizenship will be ever more narrowly defined. The Statue of Liberty has stood in New York harbor for well over a century. If President Trump succeeds in his assault on citizenship as an inclusive, irremovable right, then Lady Liberty will find herself, like Ellis Island, a mere reminder of another world, of a lost America, a country that once was a beacon of hope for those fleeing oppression. Perhaps it will even be sent back to France.

Karen J. Greenberg, a TomDispatch regular, is the director of the Center on National Security at Fordham Law and editor-in-chief of the CNS Soufan Group Morning Brief. She is the author of Rogue Justice: The Making of the Security State. She also wrote The Least Worst Place: Guantánamo’s First 100 Days. Julia Tedesco helped with research for this article.

Copyright 2019 Karen J. Greenberg

IMAGE: A plane is seen during take off in New Jersey behind the Statue of Liberty in New York’s Harbor as seen from the Brooklyn borough of New York February 20, 2016. REUTERS/Brendan McDermid/File Photo

Excerpt: ‘Rogue Justice: The Making Of The Security State’

The War on Terror has transformed the Department of Justice into an arm of the intelligence community— hijacking an institution charged with upholding the Constitution and the rule of law and using it as legal cover for mass surveillance and torture. No one has detailed that monumental shift in policy like Karen Greenberg, Director of the Center on National Security at Fordham’s School of Law. Greenberg’s Rogue Justice is a deeply-reported expose of the architects of the War on Terror at every level of government. What follows is an exclusive excerpt from the book:

The most unusual thing about the case argued in federal court in Providence, Rhode Island, on June 19, 2008, was not that the court convening it, the FISA Court of Review, had met only once be­fore in its thirty-year history. It wasn’t the way technicians had swept the room for bugs and cut it off from the Internet, turning Court­room 3 temporarily into a Sensitive Compartmented Information Facility (SCIF). It wasn’t the briefcases full of classified informa­tion that the three Justice Department lawyers had physically held on to for the hours-long trip from Washington, or even the intrigue surrounding their journey, which had led at least one of them to lie to his wife about his destination that day. And it certainly wasn’t the argument itself, in which a government lawyer once again asserted that the war on terror could not be fought without restricting Fourth Amendment rights, while his opponent countered that to take away civil liberties in the name of national security was to compromise the very principles for which the war on terror was being waged.

No, the strangest thing was that the lawyer worrying over constitutional rights, Marc Zwillinger, was not from the ACLU or the Center for Constitutional Rights; nor was he representing de­tainees or tortured prisoners. Instead, he represented a large Ameri­can corporation: the Internet company Yahoo! The issue at hand was a government order forcing Yahoo! to “assist in warrantless surveillance of certain customers” by turning over records of their communications. Yahoo! had so far failed to comply with this order, a defiance that was about to cost the company $250,000 a day in fines. But Zwillinger’s argument in court that day wasn’t about the cost or difficulty of supplying the government information about the private communications that passed through its servers in Califor­nia. And it was only a little bit about the consequences to its bot­tom line should its customers discover the breach. Mostly Yahoo!’s objection rose above petty corporate interests and invoked the basic principles of American jurisprudence. The government, Zwillinger told the three-judge panel, was compelling his company “to partici­pate in surveillance that we believe violates the Constitution of the United States.” It was refusing to supply the data on principle. It was evidently one thing for a corporation to amass huge amounts of data on its customers to sell to other corporations—which was, after all, Yahoo!’s business model—and another for that company to be required to provide its information to intelligence agencies. But while the court at least listened to the constitutional argu­ment, it wasn’t buying it. In August, it upheld Walton’s decision. The bar for domestic surveillance might once have been high, but that was before 9/11, the Patriot Act, and the Protect America Act, and, wrote Judge Selya, “that dog will not hunt” any longer. “The inter­est in national security is of the highest order of magnitude,” he ex­plained. So long as the “purpose involves some legitimate objective beyond ordinary crime control,” he continued, there is a “foreign intelligence exception to the Fourth Amendment’s warrant require­ment.” Under this reasoning, the president’s authorization “at least approaches a classic warrant” and thus preserves enough of the in­tent of the Fourth Amendment to be considered constitutional. It would be another five years before Americans—including, pre­sumably, Judge Selya and Solicitor General Garre—were alerted by Edward Snowden to how misplaced their trust was.

Adapted from ROGUE JUSTICE: THE MAKING OF THE SECURITY STATE Copyright © 2016 by Karen Greenberg. Published by Crown Publishers, an imprint of Penguin Random House LLC.

How Brennan’s CIA Nomination Could Become An Opportunity For Accountability

President Obama must have known that choosing John Brennan to direct the CIA would be highly controversial because of his alleged tolerance of torture as a top official at the agency during the Bush administration. Among those who have spoken out over the past several days is Senator John McCain — himself a victim of torture as a war prisoner in North Vietnam — who responded to Brennan’s nomination with a clear warning:

I appreciate John Brennan’s long record of service to our nation, but I have many questions and concerns about his nomination to be Director of the Central Intelligence Agency, especially what role he played in the so-called enhanced interrogation programs while serving at the CIA during the last administration, as well as his public defense of those programs. I plan to examine this aspect of Mr. Brennan’s record very closely as I consider his nomination.

In coming weeks, this line of criticism will become central when Brennan faces his confirmation hearing in the Senate. But maybe we shouldn’t rush to condemn this nomination — an appointment which makes sense from the point of view of the Obama administration trying to unify its national security policy across agencies. Rather than seeing Brennan’s appointment as a surrender to post-9/11 abuses, perhaps we should ask whether it is in fact an opportunity. The nomination process for John Brennan just might help us through the national impasse on matters of transparency and accountability, which continue to prevent Congress, and the nation, from moving forward on the issue of torture — as the raging debate over Kathryn Bigelow’s controversial film Zero Dark Thirty has illustrated.

Right now, the Senate Select Committee on Intelligence is sitting on what is widely considered to be the most definitive report to date on the CIA’s use of enhanced interrogation techniques. On March 5, 2009, Democratic chairman Dianne Feinstein and Republican vice chairman Kit Bond announced that the committee would review the CIA detention and interrogation program. Last December, the completed report was adopted by the committee, though not yet publicly released. Reportedly, it comprises an unprecedented and staggering amount of research, with over 6,000 pages and more than 35,000 footnotes resulting from the committee’s review of more than six million pages of CIA records and other documents.

So the real story of enhanced interrogation at American hands — Senate investigators claimed to have looked at the creation of the program, the assessment of information that came from the program, the sharing of knowledge of the program with other agencies and more — is now available, or should be. While the Senate Armed Services Committee report from 2008 made some headway in revealing the details of the creation and implementation of the policy, this recent report promises much greater depth, accuracy and access to CIA information. In Feinstein’s words, this new report, adopted on a bipartisan basis, “…will settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques such as those detailed in this report.”

Unfortunately, the Obama administration has continued to back away from accountability for torture. At the start of his first term, the president declared that “we need to look forward as opposed to looking backwards” on matters related to torture. This directive resonated throughout the work of the administration. And, not surprisingly, just over four months ago, the investigation into whether or not the Department of Justice would prosecute anyone for the deaths of two detainees being held in U.S. custody abroad was brought to a close without any criminal charges being filed, marking the end of any official probe of those responsible for the torture policy.

It is an irony that the investigations leading to decisions not to prosecute concluded as the Senate Select Committee’s comprehensive report was finished. Added to this is the even bigger irony that Senators Feinstein and McCain have condemned  Zero Dark Thirty for inaccuracies in portraying the torture program, while the Intelligence Committee, headed by Feinstein, could be providing the true facts to the public. Doesn’t it make sense for the American people to have full understanding and knowledge concerning an issue of such national importance?

What can certainly be said for John Brennan is that he has been a consistent advocate of transparency in government. While acknowledging the need for balancing openness with government secrecy, he has made it a mantra of his service as White House Counterterrorism Advisor, stating repeatedly that “staying true to our values as a nation also includes upholding the transparency upon which our democracy depends.” The president, too, has repeatedly stated his preference for transparency. This should be a moment for transparency in the matter of torture.

The transition to a new national security team is the perfect time to push for release of the Senate’s comprehensive report. As the dialogue surrounding Zero Dark Thirty makes clear, unless the country now reaches a long overdue moment of accountability, Washington and the American public will continue an endless and fruitless debate over the policies of the past, and we will not be able to truly move forward.

Karen Greenberg is Director of the Center on National Security at Fordham University’s School of Law.

Photo by CSIS: Center for Strategic & International Studies/Flickr

Can An American Jury Acquit A Terror Suspect?

This past Tuesday, a federal jury decided a terrorism case. And once again, the verdict is guilty. High profile terrorism cases, like the case of Tarek Mehanna, a 29-year-old American pharmacy school graduate who was on trial for providing material support to Al Qaeda operations and other terrorism charges because of his Internet writings and a trip to Yemen in 2004 (even though he never picked up a weapon or received any training), always end with a conviction.

In Mehanna’s case, the jury in Boston took more than a day to decide. His lawyers won some small victories – Mehanna’s parents stood by him with somber grace, a terrorism expert witness for the prosecution was shown to have received nearly $1 million in payments and nearly half his salary from government agencies in the past five years, and numerous specialists in counterterrorism (including former CIA case officer and NYPD advisor Marc Sagemen) testified for the defense – but none of it mattered. When a federal judge asks a jury to make a decision in a terrorism case, there is rarely an acquittal.

There have been over 300 individuals indicted for jihadist terrorism since 9/11, and 80 have gone to trial. The conviction rate for those that go to trial and those that reach a plea is nearly 90%, and when it comes to trials, there have been no acquittals since 2008 — even in cases like the 2009 “Newburgh Four” trial, when it was revealed that the government investigators had overreached by taking the lead in coming up with several elements of the plot including the ideological motive, the need for co-conspirators, and the choice and provision of weapons.

Up until now, convictions like that of Mahenna’s have been met with a sigh of relief. In particular, those who oppose military commissions for terrorists, myself included, rally around these verdicts with the gleeful coda that conviction proves that the criminal justice system can work for terrorism suspects. Meanwhile, conservatives misrepresent the strength of the courts when they foment worry about the theoretical prospect of terrorism acquittals.

But, like it or not, there is a deep and unsettling irony in the embrace of terrorism convictions as proof of a robust system. We have no doubt that a jury of twelve American citizens is capable of convicting, but can they entertain the possibility of an acquittal in a terrorism prosecution, especially when the case revolves around instances of free speech that contains content that many of us find objectionable?

This is not just splitting hairs. Those of us who advocate for the use of the federal court system (or “Article III courts,”), instead of military commissions or indefinite imprisonment for terrorists have trapped ourselves in a philosophically uncomfortable corner in which the only way to declare success for the court system is to point to its record of convictions. It is but one more example of showing how tough America can be, one more sign that national security is best handled without nuance, one more admission that there is zero tolerance for unpredictability in constitutional processes when it comes to terrorism cases.

By equating guilt and success, those of us who have championed the courts may have compromised more than was necessary – or ultimately useful.

The conviction of Tarek Mehanna may be proof that the courts can administer tough justice, especially when given broadly applicable material support laws that can prosecute aspirational behavior. But it is also proof that terrorism cases follow a different standard than the criminal justice system in general. This might be a politically viable approach for now, but the need to stack the deck may ultimately weaken the rule of law and the presumption of innocence that makes our justice system work.

In 2005, the Bush Administration listed the justice system as a weak counterterrorism tool in their official National Defense Strategy. The document claimed that “our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”

But six years later, it seems that the belief that the system was fair has not served defenders of the courts well. Few could have imagined that the reach of the law would become so vast and inescapable. The message is clear: Anyone who spouts the language of Islamic fundamentalism and pan-Islamist grievances – whether or not he commits or plans an act of violence – is an enemy of the state who should spend his life in jail.

Earlier this month, Congress passed and the President refused to veto the National Defense Authorization Act, despite its provisions for military detention for American citizens suspected of terrorism and its allowance for the possibilities of military trials. One can only wonder: Just how far from that 2005 National Defense Strategy statement have we as a nation have really come?

Karen J. Greenberg is the Director of the Center for National Security at Fordham University Law School and the author of The Least Worst Place: Guantanamo’s First 100 Days.

Norway And The Fear Of Al Qaeda

It seemed obvious: An attack on a Western target in the wake of the constant pressure that the US and NATO forces have been applying to Al Qaeda. The group and its various offshoots have had a rough couple of months. They suffered the killing of bin Laden; the killing of Ilyas Kashmiri, Al Qaeda’s military boss in Central Asia; the attempts on the life of the leader of the Afghan Taliban, Mullah Omar; and the constant use of predator drones for targeted attacks on leaders wherever Al Qaeda is training and recruiting, notably Afghanistan, Somalia, and Yemen. Then today, as if in response, there were two consecutive attacks in Norway, an explosion that caused major damage to government buildings and shootings at a youth camp run by the Labor Party where top government officials were apparently scheduled to speak.

Al Qaeda did not claim credit for the chaos — as of late Friday afternoon, a group calling itself “Helpers of the Global Jihad” had made, then revoked, a statement claiming responsibility — but the twin attacks seemed to bear the group’s signature. The bombing of public buildings resembles similar assaults of embassies and hotels around the world, while the shooting rampage looked like it was straight out of the playbook of Anwar al Awlaki, an American-born cleric who has become the new face of Al Qaeda in Yemen, and has urged his followers to use guns against Western targets.

Given all the evidence — and the chatter on Islamist message boards — one would expect that the source of today’s attacks were clear. But as of 5:30 Friday evening, the only suspect arrested was a Norwegian citizen, and his ties with Islamist militants, if they existed at all, were unclear. More than one western expert had warned that it was a message from Ayman Al-Zawahiri, bin Laden’s longtime number two and the new head of Al Qaeda.

And it wasn’t just Westerners who blamed the most available bogeyman.

Ayman Zawahiri, Osama bin Laden’s longtime lieutenant and now the titular head of al Qaeda, has been calling for an attack against Norwegians since 2003. The Norwegian army reportedly continues to provide special forces in and around Kabul and in 2006 the Norwegian press published Danish cartoons that ridiculed Islam and the prophet Mohammed, eliciting angry protests from Muslims around the globe. (Unlike the Danish government, however, the Norwegian government issued an apology.) And last week, Mullah Krekar, an Iraqi refugee in Norway who founded the Islamist group Ansar al Islam (predecessor of Al Qaeda in Iraq), was indicted in Oslo for making threats against Norwegian politicians.

As Abu Suleiman al-Nasser, a military leader of Al Qaeda in Iraq who has repeatedly threatened attacks against Scandinavian countries, bluntly explained on a jihadist message board earlier today: “Norway was targeted in order to become a lesson and example for the rest of the countries of Europe.” Al-Nasser demanded that European countries withdraw from Afghanistan. “Answer the demands of the Mujahideen,” he said, “as what you see is only the beginning and what’s coming is more.’”

Karen Greenberg is the director of NYU’s Center on Law and Security