The Illinois State Bar Association's Section on Human Rights Law has published a book review I have written. I reviewed Prof. Karen Greenberg's book, 'Rogue Justice: The Making of the Security State,’ which deals in part with the USA PATRIOT Act and related matters.

The citation is to The Illinois State Bar Association’s Human Rights Newsletter, Vol. 43 #2, October 2016.

It is reprinted below.

Book Review

‘Rogue Justice: The Making of the Security State’
Karen J. Greenberg
Crown Publishing, New York, 2016
$28 Hardcover

A Compelling Legal History of a Contemporary Civil Rights Catastrophe

Karen Greenberg’s ‘Rogue Justice’ is a Brief, but Encyclopedic Account of Modern Times 

by John Otrompke

It is a rude awakening to realize that, in the past 16 years, an entire generation in the U.S. has reached young adulthood, without ever knowing life before 9/11. They have lived only during the longest ‘war’ in American history, perhaps inured to a never-ending stream of public massacres. They have been told that Americans have lost our civil rights, but perhaps they can’t really know what that means.

Prof. Karen Greenberg, PhD, does an excellent job of providing a concise, compelling history of the legal aspects of this brutal, dystopian modern era. In ‘Rogue Justice: The Making of The Security State’ (Crown Publishing, New York, 2016), Greenberg, director of the Center on National Security at Fordham University School of Law, unwinds much of the entire narrative in 266 pages.

Every landmark event of this era finds its locus in the text: the 1998 African embassy bombings, the World Trade Center attacks, the passage of the PATRIOT Act, the invasion of Afghanistan, and the second invasion of Iraq . More recent phenomenon are also chronicled: Bin Laden’s killing, the Tsarnaev atrocities in April 2013, the release of the government’s report on torture, and the disclosures of Edward Snowden and Chelsea Manning.

To be sure, Greenberg is a historian, not a lawyer, although she teaches a course on national security issues and the law at Fordham Law School. She touches on almost each facet of the retrenchments in American civil liberties made in the past 15 years, with particular emphasis on the apparently universal secret surveillance, the torture policy, and, ultimately, the extra-judicial killing of American citizens by drones commanded by the president.

The work is unbiased, for the author is very unstinting in her criticism not only of the Bush, but of the Obama administration, too. This slim, well-researched volume also goes into the nitty-gritty of recent legal phenomenon such as indefinite detention without trial, growingly harsh punishments for whistle blowers, undisclosed use of surveillance evidence in criminal prosecutions, and even a body of secret law.

   An International Law Perspective Essential to Evaluating American Foreign Policy

In documenting these developments, Greenberg has given us an inside look at the official policy-shaping acts of influential lawyers inside the executive’s Office of Legal Counsel, and other branches of the federal government, new and old, through successive presidential administrations.  The author has developed this exhaustively-researched history through numerous interviews, personal observation of dozens of trials of jihadists, and even a personal visit to Guantanamo Bay.

Greenberg’s conclusion could be pithily summed up in her statement on p. 40 that the past era has constituted “an undeclared war being waged not on a particular enemy but on an idea, terrorism, which, like most ideas, is probably impossible to eradicate.”

While I admire Greenberg’s work, and respect her methodology, there are some changes I would like to see, should the book go to a second edition. First, while ‘Rogue Justice’ is a popular history rather than a legal text, she touches on enough matters of scholarly and practical interest that the book could use numbered footnotes and better citation to legal authority complying with Blue Book style. 

Additionally, there are several issues under international law, the inclusion of which could supplement Greenberg’s perspective. Shortly after 9/11, for example, some experts said that because Bin Laden was not alleged to be acting on behalf of a nation-state, but instead was international criminals, the U.S. was required to demand the trial or extradition of the perpetrators prior to invading Afghanistan (see, for example, “Legal Control of International Terrorism: A Policy-Oriented Assessment,” C. Bassiouni, 43 Harv. Int'l L.J. 83, (Winter 2002)).

Then, in 2003, there was the Bush administration’s violation of the U.N. Charter when France and other Security Council members disclosed their intent to veto the second Iraq war (“We don’t need a permission slip to defend our country.”) It seems that many of the world’s continuing problems stem from that oft-criticized invasion: ISIS, the deadly refugee catastrophe in Syria, perhaps even a fracture in the European Union.

      Foreigners May Prefer POW Status to Criminal Trial in Federal Court

Additionally, I disagree with one of Greenberg’s primary themes: that the federal courts are preferable as a locus for the trial of enemy combatants or jihadis, compared to courts martial. As Greenberg has written elsewhere:

            “These vexing issues could be far more readily resolved in U.S. federal courts, where  

           handling classified material under the Classified Information Procedures Act is a time-honored 

           and effective mechanism — and where judges have  addressed the difficult issues involved in

           terrorism cases for three decades now. In fact, over 400 cases have been prosecuted in federal   

           courts since 9/11.”

“Those 28 pages on the Saudis, and these 5 trials of 9/11 plotters: Are we looking for closure in the wrong place?” K. Greenberg, New York Daily News, May 23, 2016 (editorial).

I doubt if a federal court would be more fair to certain jihadis than the military commissions she describes. As she describes it, the case of Ahmed Ghailani (p. 189) is a powerful illustration of this argument. 

Ghailani, indicted for a role in the pre-9/11 bombings of African embassies in 1998 in which 224 were killed, was tried not by a military commission, but before a federal court in the Southern District of New York. Although indicted on 285 charges, the jury convicted Ghailani of only one: conspiring to destroy property and buildings. He was not of any charges involving the deaths of human beings. Nonetheless, Ghailani was sentenced to life. But from a defense perspective, an act of war by a combatant arguably should not be prosecuted as a crime, unless it’s a war crime. Had Ghailani been treated as a prisoner-of-war, instead of a federal criminal defendant, arguably he could expect to go home some day.

Greenberg also describes another decision favoring a foreign combatant as retrogressive. The conviction of Salim Hamdan by a military commission for material support was  reversed by the D.C. district court after he had served his sentence and been released (p. 248). The federal court found that Hamdan could not be convicted of material support, because that was not a crime when the acts in question took place, long before 2006.  

Greenberg says that the 2012 decision “threatened to bring [progress] entirely to a standstill...The military commissions were not only failing to make forward progress; they appeared to be on the verge of moving backward.” 

The author tells us that today, these cases (when tried) are almost always brought in federal court. But I have grave misgivings about the expanding assertion of universal criminal jurisdiction by U.S. federal courts, especially when the U.S. has repeatedly refused to recognize the universal jurisdiction of other international bodies.  

       Americans Can Be POWs, but POWs Have Habeus Corpus Rights

Perhaps what Prof. Greenberg is concerned about is the prospect of American dissidents being tried by military commissions. After all, Greenberg describes several other recent manifestations of executive totalitarianism, such as surveillance, torture, and extrajudicial disappearances, as well as international aggression.

As a bit of backstory, perhaps one reason that fear has not come to pass (at least not yet) has to do with a series of decisions by the Supreme Court, which, when it has acted at all in recent years, has generally issued opinions supporting principles of humanism and fairness in this context.

As Prof. Greenberg notes, the Supreme Court first held that an American cannot be tried by a military court in the civil war-era case Ex parte Milligan (p. 89). But the High Court reached a different decision during World War II in Ex parte Quirin (p. 65), which was distinguished from Milligan because the Americans being tried by military commission in Quirin had actually been a formal part of the German army.

But a different issue is presented, as Greenberg says, by the important question of whether federal courts have any habeus corpus jurisdiction over POWs at all. Many years ago, the Supreme Court told us no, in the World War II-era case of Johnson v Eisentrager. The individuals in Eisentrager (who were not Americans) could not avail themselves of federal habeus corpus review, because jurisdiction only lay in courts in the jurisdiction in the which prisoners are located. 

So why do federal courts have jurisdiction over POWs today? The principle of Eisentrager was overruled, the Supreme Court told us in Rasul v Bush, by a rather esoteric Supreme Court case from 1973, called Braden v 30th Judicial Circuit Court of Kentucky, which did not involve prisoners-of-war. In Braden, the Supreme Court ruled that a habeus petition can be brought in any district court in which  the custodian can be served, regardless of the location of the prisoner.

That is how foreign combatants came to have access to the great writ: in an act of legal jiu-jitsu, the Supreme Court relied on an obscure 1973 opinion, authored by Justice Brennan, to protect human rights in the midst of the civil liberties catastrophe that followed in the wake of 9/11.

        An Unprecedented Expansion of Freedom in the 21st Century

So for young adults, how has life changed in the U.S. since the PATRIOT Act? Surprisingly, in many ways, Americans are far freer today than we were in 2001. 

In the past era, there were no LGBTQ rights under the U.S. Constitution. Cannabis was universally criminalized here, and the Second Amendment was not thought to protect an individual right to own a firearm. While massacres in the U.S. have become a phenomenon of appalling recurrence and regularity, they have been most often committed by Americans. 

In short, as a matter of visible law, many Americans have been seeing an unprecedented expansion, not a contraction, of our civil rights. This contrasts with the experience of many generations in the Middle East, going back to the period after World War I, for whom American foreign policy was often anything but a boon.

Developments since 2001 make it clear that radical change can be effectuated in the federal courts. When it has acted at all, the Roberts Court has often acted to promote human freedom, sometimes in surprising ways. But a foreign combatant might prefer prisoner-of-war status to a trial in a federal court.

‘Rogue Justice’ is a gripping account of a true history which moves through the history of the past 15 years with the energy of a whirlwind. While I may disagree with one of her themes, Greenberg’s diligent research has made a significant contribution to the legal history of current events.

(c) 2016 John J. Otrompke, JD

News from the American Academy of Child and Adolescent Psychiatry

Suicides Among Very Young Children on the Rise

in Black Children and White Girls

Research in this Area Hindered by Statistical Difficulties and IRB Requirements

by John Otrompke

     Suicides among very young children in the U.S. have been on the increase in certain subgroups since 1993, according to new data from the Centers for Disease Control discussed at the AACAP meeting last week.

    Among children in the U.S. between the ages of five and 11 years old, 657 committed suicide between 93 to 2012, and 87 did so in 2013 and 2014.

While the suicide rate among children has remained stable over the past 20 years, the rate has increased among black children and white girls, according to a poster presented last week at the annual meeting of AACAP in New York (poster 1.55, ‘Suicide Trends Among Young Children in the United States from 1993 to 2014’ [Logan, et al]).

The poster presented the first subgroup analyses of suicides among children in the given age range, according to Kseniya Yershova, PhD, deputy scientific director at the Center for Suicide Risk Assessment at the New York State Psychiatric Institute, who is a co-author.

A Significant Increase in Child Suicides Since 1993

  The rate of suicides among black children increased from 1.37 per million in the first five-year period between 1993 and the end of 1997, to 2.96 per million in the final two-year period from 2013 to 2014, for a incidence rate of 1.24, according to Vladislav Mandzhiyev, a biomedical engineering student and a co-author who co-presented the poster on Wednesday, Oct. 26. The increase was found to be statistically significant (p<.05)

  The suicide rate among white girls also increased to a degree which was statistically significant, going from 0.24 per million in the first five-year period, to 0.75 per million in the two-year period (incidence rate ratio 1.63).

   However, the increase among white girls in the U.S. was masked when the data were analyzed by the moving average method of statistical analysis; instead, the change was only notable when analyzed by period trend analysis.

  Studies of suicides in young children have been complicated by low incidence and high fluctuation, according to the abstract. “Prior authors couldn’t analyze the suicide rate among young girls because there were not enough cases. But when we added two additional years of data compiled by the Centers for Disease Control to the data from 1993 to 2012, we found we could do the analysis,” Yershova explained.

  For white children as a whole, the rate went from 1.14 suicides per million to 0.99 per million, indicating a decrease, according to Mandzhiyev. Historically, the rate of suicides was higher among the white population, the poster said.

Early Identification and Treatment Important

  “Suicide is an expression of extreme suffering. The children are learning to regulate their emotions, so you cannot skip the youngest group. If they go to the emergency room for a toothache, the provider needs to ask about thoughts or feelings about death, even in the little guys. Doctors need to ask about possible risk factors for suicide in the pediatrician’s office,” said Yershova.

  “The children need the support of their parents in learning to regulate their emotions, so providers need to work with their caregivers,” she added.

  Guns, suffocation, and poison are the three most common methods of suicide in the age range, according to Yershova. “In older groups, the availability of prescription drugs, especially pain medication, may also be behind the increase, inasmuch as girls do use poison as a method much more frequently than boys,” she said, noting that poison is much more likely as a suicide method if the poison is not locked up.  

  “It would be nice to know the reasons for the increase, and there is a methodology called the psychological autopsy, in which providers interview the family,” said Yershova.

  However, the practice of psychological autopsy can’t be undertaken universally, as ethics approval is required, she added.