Costs of war: Anti-terrorist ratchet

In the waning months of the Bush administration, a lot of policy is being made. News reports have highlighted regulatory flurries by agencies overseeing environmental and industrial matters - but a similar process is at work in the national security arena.

Earlier this year for instance, the Bush White House re-wrote Executive Order 12333 - the document that provides a legal framework for the activities of the sprawling collection of agencies that insiders call the US Intelligence Community.
The new framework cements some of the administration's priorities in intelligence reform - like information-sharing and the interdiction of terrorist WMD capabilities. Much of this has been relatively noncontroversial, although perhaps it should not be.

All constitutional issues aside, in practical terms, the inefficiency of government is an important safeguard of citizens' privacy rights. The kind of frictionless sharing and collation of data about individuals that the administration is promoting as a counterterror tool could have a profound effect on privacy.

The implications of this became clear in Maryland recently, when documents showed that dozens of members of nonviolent, legal protest organizations had been entered into a federal database designed to keep track of terrorists and drug smugglers.

Another area in which the administration has been making last-minute policy is cybersecurity. Proposed by the administration when it rolled out its budget in February, the secret Comprehensive National Cyber-security Initiative, or CNCI, was fast-tracked through a difficult interagency process and almost fully-funded by an often skeptical Congress.

"That's a miracle at this point in time, with the ongoing conflicts that we have in Afghanistan and Iraq," Principal Deputy Director of National Intelligence Donald Kerr was quoted as saying recently.

But what CNCI means in policy terms, what new authorities or responsibilities it gives the intelligence community for the protection of the .gov or .mil domains, will remain unknown as long as the document itself stays classified.

Again, much of the CNCI remains uncontroversial, at least within the universe of security professionals from which an Obama administration will likely staff its cybersecurity functions.

The problem is, absent controversy, this kind of policy tends to be a ratchet, turning in only one direction. How likely is it that any incoming administration will seek to unpick policy for which they will score no points with their supporters, and which might expose their security flank to second-guessing?

On the other hand, some of the Bush administration's counterterrorism programs are highly controversial - like the National Security Agency's warrantless surveillance of American's international telephone, e-mail and internet activity.
The ACLU remains locked in a struggle to win the release under the Freedom of Information Act (FOIA) of at least redacted versions of the Justice Department legal opinions that underlay the initial NSA program. After all, by some accounts, the NSA's own lawyers had questioned its legality.

US District Court Judge Henry Kennedy last week ordered that the government provide the legal memos on 17 November so he could determine for himself whether at least portions of the memos could be released to the public. It will be interesting to see whether the posture of the Justice Department on these changes under the new administration.

But the program itself is now legislated into permanence by a law that many regard as at least marginally unconstitutional. An Obama administration will face pressure to re-open this issue, and again it will be interesting to see where they come down on the question.

In July, Obama defended his decision to vote for compromise legislation legalizing the NSA program, despite the fact that it granted retroactive immunity to telecom companies who had participated in earlier, potentially illegal programs; and that the role it gave to the special foreign intelligence tribunal known as the FISA court was a review of the program as a whole, rather than of decisions about individual targets.

"The bill does not resolve all of the concerns that we have about President Bush's abuse of executive power," Obama wrote at the time.

But he added that, going forward, the law's new, tougher "exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court."

He lauded the role of the court as an "independent monitor [that] must watch the watchers to prevent abuses and [...] protect the civil liberties of the American people." And he said the reports the law required of the NSA and other intelligence inspector generals "provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues."

But the issue on which the rubber is really likely to meet the road in terms of rolling back the unconstitutional use of executive power, is one where the policy was decided many years ago.

"Following the terrorist attacks of Sept. 11, 2001, the United States abandoned many of its rights and privileges for the accused, both citizens and non-citizens," writes Louis Fisher, a specialist in separation of powers at the Law Library of Congress in a recent book.

A few days after the attacks, President Bush signed a secret intelligence document known as a finding, giving the CIA for the first time in its history the authority to detain and interrogate suspected terrorists. Rendition, already practiced by the CIA for terror suspects, was hugely expanded.

"With political power concentrated in the President, executive branch officials met in secret to draft policies that supported the arrest and detention of suspected terrorists. They saw no need to make specific charges, provide counsel, or allow the accused an opportunity to examine evidence," writes Fisher, a respected constitutional scholar who has become a trenchant and effective critic of administration policy.

Fisher adds, "Military commissions became a substitute for civil courts and courts-martial. Suspects were flown to foreign prisons for interrogation and torture. Some of the administration initiatives violated existing statutes and treaties."
And that's why the rubber will meet the road right here.

Democratic vice-presidential nominee Senator Joe Biden said that the Obama administration would be tested early from abroad. One of those tests is likely to come in the form of continuing legal challenges in US foreign courts - and efforts to win redress - by those detained and/or tortured by the US.

We shall have to wait to see how an Obama administration will respond.