This story first appeared on the TomDispatch website.
By now, you'd think we'd be entering the end of the 9/11 era. One war over in the Greater Middle East, another hurtling disastrously to its end, and the threat of al-Qaeda so diminished that it should hardly move the needle on the national worry meter. You might think, in fact, that the moment had arrived to turn the American gaze back to first principles: the Constitution and its protections of rights and liberties.
Yet warning signs abound that 2012 will be another year in which, in the name of national security, those rights and liberties are only further Guantanamo-ized and abridged. Most notably, for example, despite the fact that genuinely dangerous enemies continue to exist abroad, there is now a new enemy in our sights: namely, American oppositional types and whistleblowers who are charged as little short of traitors for revealing the workings of our government to journalists and others.
Here and elsewhere, it looks like we can expect the Obama administration to continue to barrel down the path that has already taken us far from the country we used to be. And by next year, if a different president is in the Oval Office, expect him to lead us even further astray. With that in mind, here are five categories in the sphere of national security where 2012 is likely to prove even grimmer than 2011.
1. Ever More Punitive (Ever Less Fair-minded).
Those who imagine the era of overreach in the name of national security coming to an end any time soon would do well to remember that some spectacular national security trials are on the horizon—and that we may be entering a new age of governmental vindictiveness. Among the most newsworthy of those trials: the military commissions at Guantanamo that will bring to the docket Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attack, and his co-conspirators, as well as Abd al-Rahim al-Nashiri, the alleged point person in the 2000 suicide attack on the USS. Cole in the port of Aden. These will likely include capital charges and be prosecuted in a spirit of vengeance.
But that spirit won't stop with al-Qaeda ringleaders and operatives. A series of cases not involving attacks on or the killing of Americans will also be argued in the name of national security and in a similar spirit of vengeance. To begin with, there is the upcoming court martial of Pfc. Bradley Manning, accused of downloading classified US government documents and leaking them to the website WikiLeaks. And then, of course, there is the potential prosecution of WikiLeaks founder Julian Assange in federal court—a federal grand jury is now considering his indictment—for his alleged collaboration with Manning.
Both cases have been hailed with a righteous anger that might strike an outsider as akin to frothing at the mouth. Top officials have insisted that the WikiLeaks materials threatened American lives and left "blood" on the hands of both Assange and Manning (though no one has yet pointed to a single individual physically harmed by the release of those documents).
At the more bloodthirsty end of the American political spectrum, former Arkansas governor and presidential candidate Mike Huckabee and Congressman Mike Rogers (R-MI), among others, have called for Manning's execution. As Rogers explained, "I argue the death penalty clearly should be considered here… [Manning] clearly aided the enemy to what may result in the death of US soldiers or those cooperating. If that is not a capital offense, I don't know what is."
A similar, if less lethal, desire for punishment lies behind the Obama administration's determination to aggressively pursue and crack down on leaks to the media from inside the government, even when they don't involve the actual theft of government documents. Obama, of course, entered the Oval Office proclaiming a "sunshine" policy when it came to the workings of the government, only to move beyond George W. Bush in attempts to clamp down on whistleblowers.
The pending trials of two former CIA officers exemplify this pattern. Jeffrey Sterling is charged with leaking classified documents to the New York Times' James Risen about plans to release flawed information to Iran in a potentially counterproductive effort to subvert its nuclear program; John Kiriakou just pled not guilty to releasing information to the media about Bush-era torture policies. All told, the administration has gone after six suspected leakers—more than all previous administrations combined—using the draconian Espionage Act.
In the matter of leakers, the message couldn't be clearer or more vengeful. The government's position has been this: expose us and we will turn on you with a fury you can't imagine. As terrorists have been warned that new laws and legal systems can be built to deal with them, those accused of leaks to the press are being told that even the full extent of the law may not be the limit when it comes to punishment.
Witness the treatment of Bradley Manning in his first year of punitive captivity before he was charged with any crime: he was kept in a Marine brig in total isolation and forced to sleep naked. Or consider the attempt not just to prosecute but to destroy the life of former National Security Agency official Thomas Drake. He was accused of leaking classified information on what he considered to be a wildly wasteful NSA program. In the end, though charged under the Espionage Act, he pled guilty to the misdemeanor of essentially borrowing a government computer—but not before his life had been turned upside down and his job lost.
2. Ever More Legal Limbo (Ever Less Confidence in the Constitution).
By now, it's old hat to acknowledge that the indefinite detention of those once deemed "enemy combatants," now termed "unprivileged enemy belligerents," has become as American as apple pie. Like the Bush administration before it, the Obama administration insists on its commitment to holding nearly 50 Guantanamo detainees in indefinite detention without charge or trial.
In May 2009, in a speech at the National Archives, the president couldn't have been clearer: indefinite detention, he stated, would remain an option in the national security toolbox under his administration. In this way, he guaranteed that an American version of offshore (in)justice and the essential character of Guantanamo, which he once claimed he would shut down, would continue intact.
In 2012, however, there is a worrisome new indefinite detainee category to worry about: US citizens. Previously, Americans were exempt from incarceration at Guantanamo and so from its policy of detention without trial. In 2002, Yaser Hamdi, a Saudi-American citizen, when discovered at Guantanamo Bay, was hurried to a plane in the wee hours of the morning and whisked away, a sign of the rights still accorded American citizens. Similarly, the "American Taliban," John Walker Lindh, apprehended on the Afghanistan battlefield, was brought into the federal court system.
Lately, however, Congress has shown less respect for the distinction between rights accorded to citizens and non-citizens. Last month, Congress passed the 2012 National Defense Authorization Act (NDAA). The debates over its passage reflected a concerted effort to make American citizens as well as foreigners subject to indefinite military detention.
Ultimately, citizens supposedly remain exempt from the new law, but even so, it was a close call and a signal about where we may be headed. As a recent Congressional Research Service report on the NDAA explained, it is "not intended to affect any existing authorities relating to the detention of US citizens or lawful resident aliens, or any other persons captured or arrested in the United States."
Still, there remain many fears and much confusion about what protections are retained by US citizens under the Act. Nor did President Obama's signing statement, asserting that he would "not authorize the indefinite military detention without trial of American citizens," assuage those fears and confusions. If American citizens were indeed protected from indefinite detention under the new legislation, why was such a signing statement necessary?
There is yet another place where the law seems to have plunged into legal limbo without in any way abridging US actions: the high seas. Earlier this year, the Obama administration announced that it was detaining 15 pirates captured off the coast of Somalia—and that they were being held without reference to any legal status whatsoever. According to New York Times reporter C.J. Chivers, "where interdiction ends, an enduring problem begins: what to do with the pirates that foreign ships detain?"
According to the State Department, the pirates will be tried. But where? In the words of Vice-Admiral Mark I. Fox, "We lack a practical and reliable legal finish." In other words, the US has not yet found a country under whose law it can try them. In the meantime, according to the latest reports, the US Navy continues to confine them. Think of this, conceptually speaking, as a floating Guantanamo intended to hold for-profit enemies.