After the smoke from the attacks of Sept. 11, 2001, cleared, what remained was not just a scarred American public but also a new legal regime. An open-ended Authorization for the Use of Military Force paved the way for a "forever war" abroad as the Patriot Act gave law enforcement unprecedented powers at home.

Mass surveillance, extraordinary rendition, torture of terror suspects, extrajudicial killings via drone, and prosecutions of whistleblowers marked the era of what the U.S. government styled the War on Terror, according to national security scholar Karen Greenberg.

Greenberg, director of Fordham University School of Law's Center on National Security, said that the erosion in American democracy and rule of law in the two decades following 9/11 was enabled by four "subtle tools" of intentionally vague language, bureaucratic confusion, secrecy and the flouting legal norms. Stretching the meaning of words — using terms like "enhanced interrogation" to circumvent prohibitions on torture — classifying and hiding documentation of the government's activities, and judicial and congressional deference to the executive in contravention of the separation of powers are examples of the subtle tools.

In her forthcoming book, "Subtle Tools: The Dismantling of American Democracy from the War on Terror to Donald Trump," Greenberg lays out how the executive branch, particularly the White House, accrued more power to itself and to the newly created Department of Homeland Security as Congress and the judiciary deferred in the name of "national security." Successive presidents and the national security apparatus under them used the subtle tools to evade accountability for the wars in Afghanistan and Iraq that left millions of civilians dead and for the crises wrought by Hurricane Katrina and family separations at the U.S.-Mexico border, according to Greenberg.

"As the 20th anniversary of 9/11 comes, I think it's really important to begin to ask some of the individuals who were involved in creating and running these early agencies to reflect on what they didn't think or know would happen," she said.

Greenberg spoke to Law360 about the continuity in U.S. presidential administrations since 9/11 in undermining the rule of law and democratic accountability using these subtle tools.

What was the genesis of your book and the specific framing — the use of the "subtle tools" — through which you retell familiar episodes of the past 20 years?

Since 2003, I've been monitoring war-on-terror policies. These are things that have always bothered me. I had always noticed how imprecise the language was in these early laws and how imprecise the mission of the Department of Homeland Security was. But it wasn't until I saw how long they lasted that I thought how pernicious they could be. These powers were used for things very far away from what they had originally been created for. It dawned on me that it wasn't the policies themselves; it was the way the policies were put in place.

The reason it's so important to pay attention to this is that getting rid of all the policies is one thing, but without getting rid of the tools that put these policies into place, it's not going to matter.

Congress just sunsetted the 2002 authorization for the use of military force. They're talking about repealing and replacing it, but they have to do what they didn't do the first time round. They have to include specific language. They have to name an enemy and the geographical scope of the battlefield. It can't just be carte blanche for whoever we think might have brought about or harbored those who brought about 9/11. It's not okay for that to keep happening going forward.


What do you see as the link between autocratic and arbitrary policies of the U.S. government abroad and domestically?

This is where the subtle tool of secrecy really becomes important. The deviations that took place in terms of foreign policy, a lot of it was just secret. For example, the lies about the war in Iraq. But also the way we conducted the war on terror abroad in terms of secret interrogation and the use of torture, as well as secret surveillance policies at home — this broad warrantless surveillance of Americans. These were things that were not just kept secret but were authorized to be able to go forward in secret. It's happened writ large at home and abroad. [George W.] Bush said, in substance, "I'm going to keep the war away from us. We're going to take the war over there." And yet there was a lot going on at home in terms of war-on-terror policy.

The Department of Homeland Security is a throughline in a lot of the episodes you recount. How does DHS' handling of Katrina prefigure later episodes, and what does it say about whose homeland and whose security are valued?

The use of DHS in unfathomable ways at the border didn't come out of the blue. They knew what they were doing when they put all these different agencies together. There was no chance when it came up on the floor of the Congress that they didn't realize how messy this was going to be. It was a template for this using power because the chain of command was unclear. During Katrina, it faltered, and as a result people died. It harmed the city in unfathomable ways. But did they reshape, rethink Homeland Security? Not enough. And the reason is that there is something comforting, apparently, about knowing that there is some wiggle room. And what I'm trying to suggest is that wiggle room is too much of a chance for abuse, as we've seen with immigration policies at the border. We also saw it when DHS agents who had been working at the border were sent to Portland [in 2020 during the George Floyd protests]. This is a law enforcement agency without a defined portfolio. And that is a prescription for danger.


If all the checks and balances and independence of institutions are protected only by norms, must they be at the mercy of anyone brazen enough to not play ball?

This is something I struggle with all the time. Is our whole structure of government such that, if we have a president who doesn't want to respect the laws and the norms, it falls apart? Or do we have institutions that can protect them? That really haunts me.

I'm trying to be the optimist here, and I do think there are ways in which accountability and oversight can be put in place. Our abandonment of accountability is outrageous since 9/11. Going to war in Iraq based on lies is considered by many across the political spectrum to be one of the worst decisions in American history. But that's only one case of a very big mosaic of things that were derailed. Building Guantanamo as an indefinite detention system separate from the international laws of war — if that's not breaking norms, what is? What about deciding that we're going to use enhanced interrogation techniques, which were torture, on individuals around the world? These are not minor violations. And no one was held accountable on any official level. And so we've been living in this age of impunity for a long time, and we're still living in it.

How did the U.S. get to a point where clear and obvious violations of due process can happen unchecked? What would accountability look like?

One way is fear. There are people who wanted to do this for a long time.

When we talk about accountability, it's not about being punitive to individuals, other than maybe they shouldn't hold office. It's about looking at where the vulnerabilities were and fortifying the laws that we want to live by so that torture can't happen again. So that we don't get another Guantanamo. So that we don't go to war based on lies. So that we're not run by secret policies that when they get out of hand are not reversible.

What about the fact that our inspectors general under Trump were fired? What has to be fortified? How are our whistleblowers protected? How can the press be protected? All of these things are important for accountability. But you know, what's even more important for accountability? Not just finding fault. What would be really good for accountability was not doing these things in the first place. And not just because you're afraid of accountability, [but] because that's not who we are as a country, right? That's the thing. It doesn't always have to be that you behave that way because there are laws against it. What about behaving that way because that's the country we're supposed to be?

Your book details previous attempts at reforming the post-9/11 national security state, but those reforms often maintained extrajudicial, arbitrary measures and just expanded or narrowed who was targeted. Do you see true reforms that go beyond just tinkering with how many people are deprived of their civil rights?

The goal should not really be just a restoration or reset to where we think we were. This is a little frightening, given what happened last time we tried to create new structures, and we're going to have to think about this incredibly carefully. Can we use this as a moment of opportunity to be smart, forward-looking and not terrified, and really build a country that is fair and just? We're not there yet. And with the rise of the domestic terrorism, we see more ripples of fear. It's a tough moment to do it, but it has to be done.

From 2003 on, I spent a lot of time in court watching terrorism trials play out. I realized the weaknesses of the trials in terms of what evidence could be presented. How somehow the accused was treated as guilty from beginning to end. How the word "terrorist" being applied to the defendant colored the crime, the ways in which the prosecutor spoke to the jury, and how this all played out. I was so focused on terrorism that I didn't see that this was really fundamental to many of the injustices in our criminal justice system writ large.

There's a conversation going on here that we really need to have as a country. We need to be rethinking some of the inequities in our criminal justice system, making it viable for the 21st century.

All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.

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