A few days after September 11, President Bush tasked Attorney General John Ashcroft--not the Director of the CIA, not the Secretary of Defense--with preventing another terrorist attack on the United States. Ashcroft and his successors took the mandate seriously; it was up to the DOJ to protect the nation. To do this, DOJ lawyers reformed the laws on intelligence gathering, rethought terrorism prosecutions as preventive rather than forensic and punitive, and curtailed the rights of individuals suspected of national security-related crimes. Meanwhile, much more quietly, the Office of Legal Counsel, led by Assistant Attorney General John Yoo, secretly gave its imprimatur to activities that had previously been unthinkable--from the NSA's wide-ranging collection of the telephone and Internet records of US citizens to indefinite detention at Guantanamo and even to torture. A number of these activities have come to light, or been confirmed, only recently, due to whistleblowers like Edward Snowden. When President Obama came into office, many observers expected these changes to be rolled back and the resulting injustices remedied. Obama openly decried the way the law had been abused in the name of security and sought both greater transparency and greater adherence to the Constitution. But the entering administration found the new policies to be deeply entrenched. Even as Congress ends some of the NSA's most controversial spying programs, others continue unabated. Guantanamo remains open. American citizens continue to die in drone strikes. And as terrrorism prosecutions stumble, it remains to be seen whether the damage caused after 9/11 can ever be overcome, or whether the identity and character of the American justice system has been fundamentally weakened.
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