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

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

Rogue Justice Karen Greenberg

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.



  1. Kurt CPI May 22, 2016

    The judicial system can be manipulated as easily as the congress. These are people who’s lives have been influenced only by the limits of what they find in their niche. The manipulators easily provide them with bits and pieces of evidence – exactly what lawyers are trained to do – and insure the verdict. They can’t afford to air out their arguments so it must be done in secret. If they did so those with a broader view would quickly spot the selective, redacted information being presented. In this way, separation of powers is nullified and the power mongers become more powerful. We the people must be vigilant in identifying and thwarting these schemes.

    1. Dohk May 22, 2016

      Taking only the fact that these courts are held in secret, which on its face is legal unless the results are not made public within a reasonable amount of time, says that the DOJ does not either trust the public or care about it. And while the separation of powers is being maintained, the foundation of our democracy, checks and balances, is completely undermined. Anyone with a modicum of insight saw this coming with the Patriot Act. Bottom line – by allowing those in power to take advantage of our fears, the terrorists are winning at least on one front.

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  2. Dominick Vila May 23, 2016

    Denying the fact that our judicial, law enforcement, and political systems have been moving to the far right is denying the obvious. Fear bordering on paranoia, hatred of anything foreign (except all the foreign gadgets and cheap products we love), nationalist tendencies, insecurity, and a tendency to use violence to solve domestic and foreign threats, all contribute to a dramatic shift to the right.
    Quite frankly, I doubt the shift to the right by our Courts, the militarization of the police, and the popular preferences and choices of the last several elections, make it perfectly clear that the trend is going to continue for years to come.
    A cursory look at our political map would reveal a larger number of red and “purple” states. There is simply nothing to suggest any of these states will change their ideological leanings any time soon, and demand a shift back to the center. Secrecy and last minute surprises are just tools used to distract and fool what remains of the days when progressive policies were promoted and accepted.

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