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On the vital question of the public’s right to know what its government is doing, the Obama administration has a mixed record at best. The Justice Department has disclosed the legal memos drafted in Bush’s second term that reined in some of the president’s extraordinary powers. Over objections from the CIA, the White House ordered the release of a Justice Department inspector general’s report on the enhanced interrogation program.
Yet although the Obama White House has not said so explicitly, its policy to date has been to protect any secret that could theoretically implicate allied intelligence services, thereby keeping dark one of the murkiest corners of counterterrorism. The Justice Department, for example, has urged the U.S. Court of Appeals for the 9th Circuit to throw out a civil suit brought on behalf of Binyam Mohamed, an Ethiopian national. Mohamed was first arrested in Pakistan, and likely tortured there, then sent to Morocco, Afghanistan, and finally the prison at Guantanamo Bay. Last February, he was released from Guantanamo with no charges filed against him. To keep details of the case from coming out, the Obama administration went so far as to threaten the British Foreign Office, saying the U.S. might withhold future intelligence cooperation if a British court released to the public a U.S. document confirming some of Mohamed’s poor treatment. In February the court ignored the pleadings of both Washington and London, releasing the seven-paragraph summary at the center of the controversy.
When it comes to overseeing the intelligence community’s surveillance of Americans, the Obama administration has failed to appoint members to the Privacy and Civil Liberties Oversight Board, a panel formed in 2004 and modified in 2007 to prevent the government from spying on U.S. citizens. As former New Jersey Gov. Thomas H. Kean, co-chairman of the 9/11 Commission, said in January, “We have now a massive capacity in this country to develop data on individuals, and the board should be the champion of seeing that collection capabilities do not intrude into privacy and civil liberties.”
The Forever War
In an April 2009 speech at the National Archives announcing his policy on detainees and transparency, the president talked about the open-ended ambiguities of the current national security conflict. “Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end,” he said. “Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and—in all probability—10 years from now.”
The man who wrote most of that speech, Deputy National Security Adviser Ben Rhodes, says Obama has deliberately narrowed the focus of the war on terror to Al Qaeda. He adds that the president is trying to leave a more sustainable legal framework for the war to his successor, pointing to the administration’s bipartisan work to make military commissions comply with the Supreme Court’s 2006 ruling rejecting Bush’s approach.
“We would never claim we are doing everything different,” Rhodes says. “There were good steps taken in the previous administration that we are building upon, but there are also other areas [where] we are providing a different focus.” He also says, however, that there are no current plans for revising or supplementing the open-ended September 14 authorization of force.
Changing terminology and acknowledging the problems with open-ended powers are not the same as resolving the ambiguities and hard questions inherent in fighting against disparate groups intent on waging asymmetric warfare against civilians all over the globe. Doug Feith, undersecretary of defense for policy in the first Bush term, argues that both the “war” and “law enforcement” approaches to fighting terrorist organizations were imperfect concepts. Law enforcement is inadequate, he says, because it focuses on building evidence to try people for crimes that have already been committed, as opposed to preventing a deadly attack in the first place. But the war concept is problematic too.
“The nature of the enemy is that it is spread out all over the world,” Feith says. “It is an ideological movement rooted in religion, and it is a network and decentralized. For all of those reasons the construct or concept of war did not fit perfectly either. The principle strategic challenge in this war is how do you fight an enemy located in numerous countries with whom you are not at war.”
It would be easy to embrace the idea that all of Obama’s and Bush’s extraordinary powers are premised on a wildly exaggerated threat. Many more Americans died on our highways in 2001 than from terrorism, but the threat of driving has not mobilized the federal government to create a massive secret bureaucracy to protect us from car accidents.
But small networks of nonuniformed n’er-do-wells are indeed actively plotting to inflict maximum civilian deaths in the U.S. and elsewhere, with weapons as potent as they can get their hands on. Only a day before reasserting the president’s power to kill American citizens, Dennis Blair had told the Senate Intelligence Committee he was certain Al Qaeda would attempt an attack on the continental United States by July. After Christmas bomber Abdulmutallab began cooperating with the FBI at the end of January, he told the bureau there were other English-speaking terrorists being trained at camps he had visited in Yemen. The Senate Foreign Relations Committee released a report in January detailing how American ex-felons who converted to Islam in prison had traveled to Yemen for possible terrorist training.
Even if there were no jihadist threat, the march of technology has reached a point where small networks of individuals can launch the same kind of mass-casualty attacks that a generation ago were the province only of nation-states. If one of those terrorists blows up a plane or poisons a reservoir, even if the operation isn’t as deadly as 9/11, there will almost certainly be a public demand for more draconian measures to keep us safe.
Before that happens, we should demand, first, that the extraordinary powers granted on September 14, 2001, be made temporary. The resolution should be sunsetted at regular intervals. At the very least this would make sure that a long war does not become a permanent one. As Yale law professor Bruce Ackerman has pointed out, there is an important distinction between war powers, which he says are inappropriate in the context of counterterrorism, and a state of emergency, which implies limited abridgements of civil liberties aimed at assuring the public that the government can protect them and deal with an immediate threat.
Second, the administration must strengthen the oversight of the intelligence community by appointing the Privacy and Civil Liberties Oversight Board, an idea that has been recommended by both chairmen of the bipartisan 9/11 commission. Such independent watchdogs are an important part of curbing abuses, and they provide a place besides Congress where whistleblowers can register concerns.
Finally, Congress must demand more public accountability. News stories about the NSA surveillance program, extraordinary rendition, and secret prisons have produced a fair amount of congressional outrage. But Congress has not demanded a regular public accounting from the intelligence community. Indeed, the budget for all current intelligence operations remains a state secret, the details of which only a handful of congressional committees are permitted to know. There are some cases in which secrecy is necessary for successful statecraft, but Congress can enforce a strict sunset on these secrets as well. If the details of U.S.-Pakistan cooperation must be kept in the dark for now, they should not remain that way for a generation.
Above all, we must be honest with ourselves. Obama, like Bush, is committed to a long war against an amorphous network of terrorists. In at least the constitutional sense, he is no harder or softer than his predecessor. And like his predecessor, he has not come up with a plan for relinquishing these extraordinary powers once the long war ends, if it ever does. If change is going to come to U.S. policy on terrorism, it will have to come from a bipartisan recognition that Americans cannot trust their government to tell them when they are safe again.
Eli Lake (email@example.com) is a national security reporter for the Washington Times.