A few years ago, working as a top counter-terrorism adviser at the U.S. Department of Justice, I. Michael Greenberger spent months studying the potential impact of a major terrorist attack on America, its government and its laws.
Now, from the University of Maryland law school in Baltimore, he is watching the effects of the real thing reverberate through the U.S. legal system. And he doesn't like what he is seeing.
"There's no doubt that these are dangerous times that call for going right up to the border of what the Constitution allows," he says. "But what I'm starting to see is that border being moved in a way that strikes me as very ominous."
A veteran Washington lawyer who served four years in the Clinton administration, Greenberger, 56, is emerging as a prominent critic of the government's performance in balancing security and liberty in the edgy aftermath of Sept. 11. He has been widely quoted in the media on everything from the military tribunals proposed for the trials of suspected terrorists to the virtual martial law powers that the government can assume in a bioterrorism emergency, topics also covered in a piece he just wrote for The Maryland Bar Journal.
"From many perspectives, the terrorist threat has dramatically altered the law - in financial regulation, transportation, environmental disclosure, intellectual property," Greenberger says. "But from the civil liberties and constitutional perspective, it's a tsunami."
At the law school, Greenberger is teaching a pioneering class, "Homeland Security and the Law of Counterterrorism," whose syllabus shifts with every new court ruling. He and his students have watched a new field of law being forged, a period of rapid legal change with few precedents.
His class has analyzed such cases as that of Yasser Esam Hamdi, a U.S. citizen who was captured on the battlefield in Afghanistan and has been held incommunicado since April in a Navy jail in Virginia. As an "enemy combatant," the government says, Hamdi - who was born in Louisiana to Saudi parents 22 years ago - can be held indefinitely without charges and without access to a lawyer.
"If I had outlined such a scenario before Sept. 11 - even said it would be seriously discussed - people would have questioned my sanity," Greenberger says.
He says the Bush administration has performed poorly in basic police work - failing to find the anthrax mailer, for example. To distract from such failures, he says, it has made splashy announcements about the arrest of marginal figures and introduced "sweeping public relations gestures" that threaten civil liberties more than they threaten terrorists.
"Military tribunals aren't going to win this war," Greenberger says. "Enemy combatant theories aren't going to win this war. What's going to win this war is dogged, traditional law enforcement."
In class, Greenberger uses a Socratic teaching style that does not reveal much about his personal views. Sitting on a table at the end of the classroom, he lobs questions at the two dozen students and then coaxes them toward answers. In style, he is more a rumpled, friendly uncle than the swaggering intimidator of The Paper Chase.
On this day, Greenberger's syllabus has once again been overtaken by news. The class was supposed to discuss the war on terror's impact on freedom of the press.
But now there is a new appeals court ruling - one that makes it easier for the government to eavesdrop on terrorists, one that worries civil libertarians. He introduces the landmark ruling from the U.S. Foreign Intelligence Surveillance Court of Review, a body so obscure that it has never issued an opinion in 24 years of existence.
"What's the historic significance of this opinion?" he asks. "What thesis has been turned on its head? ... What's the one bone that the ruling throws to the civil liberties side of things?"
Such last-minute revisions have become standard fare in Greenberger's course. Every month sees major rulings from appellate courts on the Bush administration's aggressive pursuit of suspected terrorists. Every day serves up new applications of such legal juggernauts as last year's USA Patriot Act and this year's Homeland Security Act.
Besides his law school duties, Greenberger serves as director of the Center for Health and Homeland Security, created last year to coordinate terrrorism-related programs at the University of Maryland, Baltimore. He describes his job as "organizer and spark plug," promoting and linking such disparate operations as the Center for Vaccine Development's research on the smallpox vaccine, the dental school's forensic identification of terrorism victims and the Maryland Poison Center's expertise on toxins.
Recently, he has been sounding off about the failure of all the money going into terrorism preparedness to trickle down to local emergency personnel and public health workers, the front line in any future attack. "If there's a soft underbelly to counter-terrorism, it's public health," he says.
His current job is his first return to law school since his years as a student at the University of Pennsylvania, where he was editor of the law review. After graduation, Greenberger clerked for a D.C. judge, served as a congressional staffer and worked on the staff of Attorney General Elliot L. Richardson - until losing that job in the Saturday Night Massacre of Watergate fame.
He then practiced for 24 years with the Washington firm of Shea & Gardner, handling litigation and appellate cases and doing much pro bono work. But he wanted to return to public service, and got his chance in 1997 when a friend joined the Clinton administration and hired him as director of trading and markets at the Commodity Futures Trading Commission.
At the CFTC, Greenberger took an interest in the regulation of derivatives, the risky investment vehicles that have played a role in many recent financial meltdowns, including that of Enron. He is still frequently consulted on the topic.
After meeting then-Attorney General Janet Reno, he was invited to apply for a job in the Justice Department, landing first as "counselor" to Reno and then becoming principal deputy associate attorney general. In 2000, Reno asked him to help organize a major terrorism exercise called TOPOFF, in which thousands of federal, state and local officials grappled with hypothetical attacks, including a chemical assault on Denver and a biological release in New Hampshire.
After Clinton left office, Greenberger spotted an opening at the law school in Baltimore, created by an unexpected increase in enrollment. He welcomed the chance to try teaching, commuting from the Washington home he shares with his wife, Marcia D. Greenberger, co-president of the National Women's Law Center.
Three months later came the Sept. 11 attacks, and Greenberger scrambled to put together a quick one-credit course on the legal impact. He invited as guest speakers his Justice colleagues and former CIA Director R. James Woolsey, who had been his law partner at Shea & Gardner.
Woolsey does not share his former colleague's skeptical view of the Bush administration's legal conduct, saying he thinks the government went further in curbing civil liberties during World War II and other conflicts.
But he praises Greenberger for his passion for the law at this critical time, calling him "a brilliant lawyer and a terrific individual. ... The university's lucky to have him."
This year, Greenberger has expanded the course to three credits to more fully cover the epochal impact of terror on the law. The class is generating some interesting debates, enlivened by several students who are military officers or have intelligence backgrounds.
"There's nothing else quite like it in the curriculum," says Christopher Elmore, 25, a second-year law student in Greenberger's class and an Army second lieutenant who plans to become a military lawyer. "It's extremely relevant and topical. He's one of the best professors I've had."
For Elmore, as for some of his classmates, the class may provide more than an introduction to abstract principles.
"Some day I may actually end up as a member of a military tribunal," he says.