If you believe the president's Republican critics, Barack Obama takes a law enforcement approach to terrorism. His FBI came under fire for reading Umar Farouk Abdulmutallab, the Nigerian national who nearly blew up an airplane on Christmas, his constitutional rights. His attorney general was blasted for wanting to give 9/11 mastermind Khalid Shaikh Mohammed a criminal trial in lower Manhattan. Republican Sen. Scott Brown rode to his historic upset victory in Massachusetts in part due to this slogan: "In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them." Every sign suggests the GOP will make terrorism a wedge issue in the 2010 midterm elections. "As I've watched the events of the last few days," former vice president Dick Cheney said shortly after the Abdulmutallab attack, "it is clear once again that President Obama is trying to pretend we are not at war."
It's true that the president's speeches and some of his administration's policy rollouts have emphasized a break from the Bush era. In the Quadrennial Defense Review, the guiding strategy for defense spending released every four years, the administration excised any reference to the "long war," previously the go-to euphemism for the global war on terror. In a major speech last summer, the president's top adviser on terrorism and homeland security, John Brennan, said explicitly that Obama rejected the phrase "global war" because "it plays into the misleading and dangerous notion that the U.S. is somehow in conflict with the rest of the world." In a USA Today op-ed piece last February, Brennan argued that Republican critics were playing into Al Qaeda's hands by suggesting U.S. courts could not handle terrorism prosecutions.
But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president's war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably "20th hijacker" Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.
The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as "black sites," he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as "rendition." And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.
The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, "The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Just as President Bush said the 9/14 resolution gave him the wartime powers to detain, interrogate, capture, and kill terrorists all over the world, so too does President Obama. On March 13, 2009 Justice Department lawyers said in a Habeas brief before the D.C. Federal Court that this resolution, known as the AUMF, or authorization of the use of military force, granted the administration detention authority.
It's true that the Obama administration has rejected the early Bush administration's assertion of an almost supreme wartime executive, or that the president's wartime authorities can overrule laws passed by Congress. Also President Obama asserts that the powers granted by the 9/14 resolution must cohere to international laws of war. But these differences are less significant than one might imagine.
A speech last month from Harold Koh, the State Department's legal adviser, acknowledged that the international laws of war have not properly contemplated a war against a global terror network. "Those laws of war were designed primarily for traditional armed conflicts among states," Koh said. "Not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is 'necessary and appropriate' under the AUMF requires some 'translation,' or analogizing principles from the laws of war governing traditional international conflicts."
As long as the AUMF remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. While it's true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.
The Mirage of Accountability
Unlike other wars in American history, a global war on a terrorist network has no geographic boundaries and no clear endpoint. FDR interned Japanese Americans until the end of World War II, an extraordinary assault on civil liberties. But at least there was no doubt what the end of that war would look like.
"The danger of a war that takes place everywhere and lasts forever is that it gives the president almost limitless authority to detain or even kill U.S. citizens and civilians anywhere in the world," says Ben Wizner, an attorney with the American Civil Liberties Union. On February 3, Dennis Blair, director of national intelligence, confirmed that power in congressional testimony, telling lawmakers that the administration had the right to kill American citizens who joined Al Qaeda without court involvement or consultation with Congress. The only legal authority required, Blair said, was "special permission," which amounts to presidential approval on a case-by-case basis.
This position troubles Philip Alston, the United Nations special rapporteur for extrajudicial executions, whose requests for information on CIA drone strikes has been stonewalled by the Obama administration. "The U.S. under President Obama has apparently maintained the Bush administration's view that, because it is involved in a global armed conflict against Al Qaeda, it is permitted to target and kill relevant individuals anywhere in the world," Alston says.
The White House has repeatedly defended using the same powers that were frequent targets of Democratic criticism when Bush and Cheney were exercising them. In a December speech at West Point announcing a surge of 30,000 troops in Afghanistan, Obama underscored that the action was authorized by the September 14 resolution, which, he noted, passed by a vote of 98 to 0 in the Senate.
In the February 1 issue of The New Republic, Jack Goldsmith, a Justice Department lawyer during the Bush administration, argued that Obama has assumed his predecessor's war powers in part because the early overreach of Bush prompted safeguards that make the executive branch more accountable. Goldsmith, who had been a sharp critic of Dick Cheney's views on executive power, pointed to "armies of lawyers" in the current administration whose sole job is to make sure highly classified programs adhere to congressional restrictions. "The enhanced powers of the presidency after September 11 have become part of the national fabric, in short, because they have received the consent of our national institutions, and thus of the people themselves," he concluded.
It's true that elements of Bush policy have been reined in by other branches of government. The Supreme Court rejected the military commissions that were first developed for detainees sent to Guantanamo. Obama has remade the commissions, with help from Republicans in Congress, to comply with the high court's ruling. Congress, which the Bush administration largely ignored when it developed its post-9/11 National Security Agency (NSA) surveillance program, has now reauthorized the Federal Intelligence Surveillance Act (FISA) to allow for much of what was decried as warrantless surveillance of Americans' phone calls and email. And Congress has asserted at least limited oversight of the war: The top Republican and Democratic leaders of Congress, along with the chairmen and vice chairmen of the intelligence committees—the so-called Gang of Eight—are consulted on major intelligence programs and counterterrorism operations, as they were prior to 9/11.
But this kind of accountability is fundamentally handicapped by the fact that it has no public component. It is far too easy for the consulted members of Congress to conveniently forget their briefings when shadowy counterterrorism practices are disclosed in the media. Nancy Pelosi famously said she was never told about the CIA's waterboarding and other "enhanced interrogations" after they came to light, even after the CIA produced an official record of a September 2002 briefing on interrogation techniques that said she attended.
These layers of accountability have not prevented abuses in the past. "The creation of the FISA Court in 1978 did not stop the Bush administration from circumventing it in 2001," says Steven Aftergood, the head of the project on government secrecy for the Federation of American Scientists. "And neither Congress nor the courts have found a way to provide a remedy to people like Maher Arar, who was 'rendered' to Syria for abusive interrogation by the U.S. government though he was innocent of any role in terrorism. And the government has now normalized torture by redefining it in a convenient if unpersuasive way. The armies of lawyers that Goldsmith sees working on accountability are not going to hold anyone accountable for any of these developments. Nor will they compensate the victims."
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. On the transparency side, 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 while 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 Mohammed, an Ethiopian national. Mohammed 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 Mohammed'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.
As for 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 Republican 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 White House has also opposed a section of the 2011 intelligence authorization bill that would give the General Accounting Office greater authority to audit the intelligence community.
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 for Strategic Communications 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, 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 non-uniformed terrorists 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, there are some steps that can be taken to make sure the extraordinary powers granted on September 14, 2001 do not become permanent. Some legal scholars have suggested that the extraordinary powers be sunsetted and re-debated by Congress every few years, as elements of the Patriot Act on occasion expire. The fundamental anti-terrorism powers granted British authorities for most of the 20th century known at first as the Prevention of Violence Act and then later as the Prevention of Terrorism Act, expired every few years requiring new authorizations—even as the U.K. fought a counter-insurgency campaign at home against the IRA.
This kind of approach is in keeping with recommendations of Yale law professor Bruce Ackerman. Soon after 9/11 he argued that there is an important distinction between war powers, which he says are inappropriate in the context of counterterrorism, and a state of emergency, which would require limited abridgements of civil liberties that are time limited. The British laws first developed to combat the IRA and today used against radical Muslim groups are still described in the law as "temporary powers."
Second, Republicans and Democrats have pressed the administration to strengthen the oversight of the intelligence community by appointing the Privacy and Civil Liberties Oversight Board, an idea that has been championed by both chairmen of the bipartisan 9/11 commission. Such independent watchdogs are an important part of curbing abuses and provide a place, besides Congress, where whistleblowers can register concerns.
Finally, lawmakers in Congress have at times demanded 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 asked for 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 indefinitely. A model for declassification can be found in the Clinton Administration, which in 2000 released much of the secret U.S. history of aiding Augusto Pinochet in Chile due to an executive order to release most secret documents more than 25 years old.
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 is national security correspondent for the Washington Times.
Editor's Note: This article originally misstated Philip Alston's title at the U.N.