September 6, 2021
Justice in America: The War on Terror’s Damaging Legacy
Director of the Center on National Security at Fordham Law
This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11.
From the very beginning of the war on terror, the United States confused the distinction between justice and war. “Justice will be done,” President George W. Bush promised Congress and the American people on September 20, 2001. "How will we fight and win this war?” he asked, answering, “We will direct every resource at our command” to the war effort. As it turned out, the institutions of justice were an integral part of the U.S. arsenal in the war and the response to the war on terror transformed justice in America in ways that persist to this day.
In the weeks following the 9/11 attacks, Attorney General John Ashcroft signaled his conviction that the Department of Justice could be a useful arm of the war on terror. He began with immigration policy. Under the auspices of the DOJ’s Immigration and Naturalization Service, the government detained an estimated 2,000 individuals, most held on immigration charges, relatively few on federal criminal charges and a handful on material witness charges. Most were Muslim or Arab, but the names and precise number of those detained- as well as their locations - were kept secret. Protections of law – including due process, speedy trial, habeas corpus, and more - were summarily tossed aside in order to keep the nation safe from the “enemy.”
More formally, the Patriot Act, submitted in its final version by Ashcroft, and passed by Congress in late October 2001, institutionalized the internalization of war by law enforcement. The new counterterrorism law codified a rights-reducing trend in the name of the war on terror. Riding on the coattails of the anger and fear that had been unleashed in the wake of 9/11, it embraced expanded powers for law enforcement. Ashcroft subsequently summed up its purpose, invoking war-laden terminology, “In order to fight and to defeat terrorism,” he announced, the department had shifted course. “[T]he Department of Justice,” he explained, “has added a new paradigm to that of prosecution—a paradigm of prevention.” The preventive paradigm created new authorities for investigation, including reduced thresholds for investigation, an unprecedented scope of surveillance, and broader application of terrorism statutes. Under the auspices of these new authorities, over 300 individuals were charged as terrorists in the course of the first decade of the war on terror, the vast majority of the cases resulting in findings of guilt.
Putting a fine point on the merger of war and the institutions of justice, the Patriot Act also cleared the way for the demolition of the FISA wall, a norm which had previously regulated the sharing of information collected in foreign intelligence investigations with law enforcement authorities. Without the wall in place, national security concerns were poised to triumph over Fourth Amendment concerns and those national security standards would be applied to ordinary cases and investigations.
But the insertion of the war paradigm into domestic laws and norms did not fully cover the changes that followed 9/11. In fact, one could argue, the most serious damage to ideals and institutions of justice took place outside both the courts and the law.
Two and a half weeks after the passage of the Patriot Act, President Bush, decided to separate the institutions of justice from the war effort. In a “Military Order” he laid out how the country would deal with individuals who were captured on the global battlefield of the war on terror and detained at the U.S. military prison at Guantanamo Bay, Cuba. The captured suspects would not be tried within the federal courts, as jihadist terrorism cases – including the successful prosecution of the 1998 Embassy Bombings that had concluded earlier in 2001 - had traditionally been handled, but via military commissions, a system that did not yet exist.
The military commissions, formally codified by Congress in 2006 and again in 2009, have failed miserably. After fifteen years, and eight convictions, three of which have been overturned, and three of which are pending appeal, the major cases involving lethal terrorist attacks remain to be tried. As a result, rather than create a distinction between war and justice, the commissions conveyed the message that, when pitted against one another, war annihilates justice. Notably, even now, the trial of those charged with involvement in the attacks of 9/11 has yet to begin.
But perhaps, the most concerning pivot of all when it came to the confounding of war and justice after 9/11, was the role that the Department of Justice’s Office of Legal Counsel (OLC) played in undermining the integrity of the justice system in the name of war. Starting in the weeks after 9/11, OLC lawyers drafted memoranda authorizing among other things, the practice of torture referred to as “enhanced interrogation techniques", the use of warrantless surveillance, the use of lethal force against Americans abroad as part of the “lawful conduct of war” and therefore exempt from constitutional protections, and less dramatically perhaps, the refusal to draw a distinction between peaceful protests and terrorist activity.
As the war on terror abroad has persisted for decades, so too has the legacy of these degradations of justice persisted. Admittedly, some steps have been taken towards reversing and reforming the changes that occurred post 9/11 which comingled war and justice. Notably, the Freedom Act, passed in 2015 and reauthorized in 2020, enacted several reforms. For example, under the new law, the government could no longer conduct bulk telephone metadata collection. The new law also allowed for challenges to nondisclosure orders pertaining to those under surveillance, and it curtailed the breadth in issuing National Security Letters. While much remains of concern, it took a step forward in disentangling the law from the strategies attached to war. And, notably, the military commissions have held their first hearings since the onset of COVID, but the start date for the signature trial – the 9/11 trial – is still likely several years away.
A July 31st memo issued by Attorney General Merrick Garland initiates reforms in one of the chief tactics used to confound war and justice – namely, the forfeiture of DOJ independence in deference to the White House. The memo responds most immediately to the Trump administration’s use of the Justice Department to defy laws and norms, although a more accurate analysis would date the DOJ’s capitulation to inappropriate White House prerogatives to the war on terror. Garland’s memo acknowledges, without specifically naming, the very aberrations that the war on terror initiated. He addresses national security pressures on the law, noting that when it comes to “matters relating to foreign relations and national security, including counterterrorism and counterespionage,” communications need to be more open than in other areas.
But Garland is not content to leave it at that. Instead, the memo calls for “further supervisory guidance” meant to ensure the DOJ’s independence. Moreover, the memo is noteworthy for pointing specifically to the role of the OLC, Attorney General and the Deputy Attorney General in preventing “improper attempts” to influence the OLC. The memo attests, essentially, to the lasting effects of the mingling of war and justice.
When historians look back on the institutional casualties of America’s war on terror, the toll taken on the justice system will doubtless rise to the top of their list. Efforts to disentangle war and justice from one another, however careful and constrained, are important. But even more important would be forward-looking measures to insulate the aims of war from overtaking the laws, principles and institutions of justice in the future.
Karen J. Greenberg is the Director of the Center on National Security at Fordham Law and the author of Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump (2021). Her book Rogue Justice: The Making of the Security State (2016) explores the transformations of Justice in the name of the war on terror.