Book Review by Sapphire Ng
Copyright May 2016
Rogue Justice, a book immensely laudable for its cohesiveness and lucidity, offers an exceedingly compelling rendition of the American judicial and political landscape under the Bush administration post 9/11. Though a little repetitive at times, Greenberg successfully composed solid arguments for the way “the institutions of justice, caught up in the war on terror, have done rogue.” She offered a rather captivating navigation through “the smoke of political posturing,” and exploration of “the White House's intransigence and its extravagant claims about wartime powers.”
Greenberg substantiated the phenomenon of “rogue justice” with an excellent survey of pertinent legislations. The author highlighted the USA PATRIOT Act, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the act which “privileged intelligence collection over constitutional protections,” and dramatically reduced the protections of the Fourth Amendment. The obliteration of the “FISA wall”—the Foreign Intelligence Surveillance Act—was said to have led to “legalized warrantless surveillance,” and which expunged barriers between national security investigations and criminal investigations.
The author keenly underscored a “particularly Orwellian twist” embedded in the FISA Amendments Act (FAA) which ominously authorized “spying even as it forbade it;” Section 702 of the FAA also notably established the Protect America Act's (PAA) alarmingly lowered bar in identifying surveillance targets. The “abrogation of rights” was even officially established as “the law of the land” with the passage of the Military Commissions Act (MCA). Signing into law the Authorization for Use of Military Force (AUMF) on September 18, 2001, President Bush went to the extent of granting himself relatively boundless power and right to use “all necessary force and appropriate force” against those responsible for the 9/11 attacks and against those who “harbored such organizations or persons.”
Fascinatingly, the book focused considerable limelight on Deputy Assistant Attorney General John Yoo; he who significantly fortified the practice of “rogue justice” as he repeatedly fabricated “constitutional cover for an abridgment of civil liberties unprecedented in American history.” In legally justifying Stellar Wind—the President's Surveillance Program by the National Security Agency (NSA)—Yoo argued in his memo that merely “the nature and extent of the emergency” post 9/11 indicates that any “attempts to limit presidential power” to be “an unconstitutional infringement on the President's Article II authorities.” Regarding torture, Yoo imprudently seized the “opportunity to extend his, and the rest of the War Council's, radical reinterpretation of American law,” no matter how inhumane.
An advocate of executive power, and probably fervidly so, Yoo's controversial arguments are shown to be consistently outrageous. Sweeping statements would be written, including “a warrant is not required for all government searches,” or unsubstantiated and dubious claims such as “a warrantless search can be constitutional.” Yoo was also involved in drafting a new policy “decreeing that detainees in the war on terror would be held in military custody and tried—if they were to be tried at all—by military courts.”
Responsible for the new legal designations of “enemy combatants,” and “unlawful combatants,” Yoo conspired for the United States to “avoid the strictures of the Geneva Conventions applicable to armed conflict” as he unsparingly disallowed detainees the entitlement to “international protections guaranteed to prisoners by the laws of war”—of “humane treatment, freedom from humiliating and degrading treatment,” and more.
Greenberg judiciously and shrewdly filled the book with commentary and analyses that reasonably and effectively reinforce her premise, whilst doubling as a helpful guide for readers. She observed the government's chilling attempts to turn its “rogue programs” into “officially sanctioned policy” with the publication of “polished” memos that “increased confidence that any attempt to prosecute interrogators or officials for war crimes would fail.” “The rogue elements within the White House, and especially within the Department of Justice” conveniently avoided a “full and public reckoning” with the settlement for a plea deal in the John Walker Lindh case; it strategically “prevented the systematic dismantling of constitutional protections from coming to light at trial,” whilst retaining “firsthand stories of prisoner abuse, coercive interrogation, and disregard for due process” out of the public record.
The author boldly accentuated the power-hungry White House as she fittingly drew attention to Paul Clement—the government's leading defender in 9/11-related litigation—who made preposterous claims such as the president's entitlement to “violate criminal law, the law of war, the Eight Amendment, and various international accords and treaties if he thought it was necessary.” The government's positions were laden with “deep antidemocratic undertones;” it repeatedly urged the court to defer to the executive branch, and “to knowingly relinquish its prerogative to judge whether the law demanded it to restrain the president,” and even claiming the “rule of law, restraints on sovereign power,” and “an independent judiciary” to be “now a liability.”
In illustrating blatant instances of the abuse of power, “a new prosecutorial model in terrorism cases” was reported to be employed, at times successfully, especially in cases weakened by poor evidence or mistreatment; the prosecutors would simply “allege a conspiracy with Al Qaeda,” or “invoke the name of Osama bin Laden.” On a ludicrous note, the White House was even said to be “willing to make a mockery of the judicial branch of government” in an attempt “to protect its bid for executive power,” or even to “intentionally moot” a case in a manner that would turn the whole proceeding into a “farce.”
Greenberg dexterously delineated resistance toward the unchecked executive power by notably chronicling the setbacks and triumphs of certain parties, most prominently the ACLU. The author detailed the multiple lawsuits the ACLU filed—a Freedom of Information Act (FOIA) order demanding the release of documents relevant to domestic spying, and related struggles toward satisfying the standing doctrine; a complaint accusing the FAA to be in violation of the First and Fourth Amendments, and “the principle of separation of powers” in Amnesty v. Clapper; and a civil suit against Jeppesen Dataplan, an aviation and marine support company allegedly involved in flying detainees to black sites.
Jack Goldsmith was the man credited for the earliest attempts to rescind John Yoo's torture memos. He perceived Yoo's legal memos that guided counterterrorism policy to be “deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President,” and “designed to confer immunity for bad acts.”
Criticisms toward the executive were aplenty: “the President apparently believes his power to torture is plenary;” the Patriot Act's issuance of “blank warrants” posed a “threat to civil liberties;” Stellar Wind was referred to as a “dragnet surveillance;” the Combatant Status Review Tribunals (CSRTs) was accused by an ex-tribunal member to be “an irremediable sham;” the unavailability for one to access “the right to challenge one's detention” made the CSRTs grossly ineligible as “an adequate substitute” for a habeas court; and the Supreme Court ruling that in the absence of authorization by the Congress, the president had thus set up military commissions in an illegal manner.
The author finely traced the operation of “rogue justice” as the Bush administration gave way to the Obama Presidency. The notorious whistleblower Edward Snowden was depicted—one charged and accused of “theft of government property, unauthorized communication of national defense information, and giving classified information to an unauthorized person;” he who revealed classified documents which escalated public outcry over the “incontrovertible evidence of mass collection of both metadata and content.” Particularly enlightening was the outlining of efforts committed by the Obama administration toward greater alignment to the Constitution, increased transparency, and otherwise; the revoking of the government's metadata-collection program—Section 215 bulk telephone records program—, the public release of the Senate's torture report and the Report on the President's Surveillance Program, and more.
Discussion of the legal cases and trials in the book were especially interesting. The ruling of the Ghailani trial for example, as related to the bombings of the US embassies in Tanzania and Kenya in 1998, enraged the public tremendously. People were affronted by the jury which voted for an acquittal on 284 out of 285 counts, pronouncing Ghailani guilty solely on a single count for “conspiring to destroy US property and buildings.” The ruling was condemned as “a tragic wake-up call” to the Obama administration, the outcome a “close call” that demonstrated “the danger of a fair trial,” and the civilian courtroom deemed improper for a nation seeking “vengeance.”
Distinctly stimulating was an instance where the book expounded on the legal interpretation of “imminent” threat of violent attack, in the case posed by an Al Qaeda leader against the United States, and in discussion of the legitimacy of the drone strike launched by the Obama administration that killed Anwar al-Awlaki, an American citizen. On the other hand, the Latif and the Al-Adahi cases were presented in the book as a point of departure to illustrate an interesting common-law concept, the presumption of regularity, where “courts must presume that government officials have done their jobs properly unless there is evidence to the contrary.”
The Zacarias Moussaoui case effectively demonstrated the interplay of the Sixth Amendment's guarantee that a defendant be allowed to face his accuser in court, as Moussaoui was repeatedly denied the constitutional right by the prosecutors. His case was also testament to the complex dynamic where “the power of prevention-minded investigators would be weighed against the rights of defendants.” Jose Padilla, an American citizen and labeled an “enemy combatant,” he was but one of the many whisked away to “the Twilight Zone”—put into military custody, outside the reach of the courts, and kept indefinitely without being charged, given access to a lawyer, or presented with any evidence.
Greenberg is indisputably an extremely skillful writer. A singularly powerful and concise phrase went, “Adams's Alien and Sedition Acts, Lincoln's suspension of habeas corpus, Roosevelt's internment of Japanese Americans, Truman's attempt to shut down a steel strike during the Korean War, Nixon's use of surveillance against antiwar protestors—all are examples of actions taken by presidents who chafed at the limitations imposed on their power by the Constitution...”
Disclaimer: I received a complimentary copy of this book from Blogging for Books for this review.