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Domestic Counterterrorism

Hurry Up and Wait: The Torture Legislation and the November ‘06 Elections

By Aziz Huq – 10/06/06

*Cross-posted from The Huffington Post

Two weeks ago, the White House led a chorus baying for the blood of anyone who stood in the way of the President's Military Commission Act stood in the way of defending America. After five years' inaction on detainees and interrogation issues, the White House discovered a need for speedy action. But a week after the House and Senate voted on the bill, the enrolled bill is still sitting on President Bush's desk... No law has changed--yet. As thousands hit the streets to protest Congress's endorsement of cruel and inhumane interrogation techniques, and detention without end, it's worth asking: Why the delay? What does it tell us about the legislation, or the upcoming election campaign?

First and foremost, the delay illustrates a simple fact: There was no pressing need to act. The only pressing need driving enactment of the Military Commissions Act--with its frontal assault on rules against torture, indefinite detention, and fair trials--was the prospect of November elections.

The Administration pointed to two pressing needs in its campaign for the legislation: First, it wanted President Bush's "program" of coercive interrogations in secret CIA prisons around the world to go forward. Second, it wanted trials by new military commissions for those held at the Guantánamo Bay to begin again.

But were either of these needs in fact pressing? The Administration's own behavior suggests not.

A senior intelligence official quoted in the Washington Post explained that "there is no one in CIA custody today" who could be subject to the coercive techniques allowed by the Act. Setting aside the question whether torture works as a means of securing accurate intelligence--it doesn't--it thus appears that the CIA is not now holding anyone who might have information to prevent an incipient attack. Like many previous announcement about incipient terrorist threats, the timing of the White House's warnings had more to do with politics than threat predication.

The idea that there's a pressing need to begin military commissions is even more transparently false. According to Defense Department spokesman Bryan Whitman, no trials are imminent. It will take at least until next year to rewrite rules, assign judges, and make the necessary arrangements for trials.

This legislation, in other words, had nothing to do with an immediate need. Instead, we now have repeated confirmation that the Administration, when confronted by real evidence of threats to American civilians, has simply failed to act. From the aching minutes that President Bush first took to register and respond to the news of the 9/11 attacks to the painful and disastrously inadequate response to Katrina, this Administration's record speaks for itself.

Recent revelations confirm this. Bob Woodward's new book State of Denial thus exposed the fact that CIA chief George Tenet and Cofer Black (who faced off against bin Laden in Sudan) warned Condoleezza Rice in the starkest terms of the looming assault--in a meeting the Secretary of State cannot even recall. Woodward's revelation echoes Ron Suskind's account in The One-Percent Solution of the CIA's desperate effort to warn President Bush in August 2001 of the impending crisis--only to be completely blown off by the vacationing Chief Executive.

Repeatedly, we learn that our leaders failed to respond to the threats. Repeatedly, these same leaders are all too ready to conjure those same threats for narrow, partisan purposes untethered from the true security needs of the nation.

This year's election season will bring a slew of claims and counter-claims about who is "toughest" on national security. But there's little point in hanging tough if you are facing the wrong way. The Military Commissions Act that sits on President Bush's desk is the worst sort of political showmanship: For reasons I have explained earlier, it will do little to keep us safer in the face of any imminent threat. It is rather a naked attempt to distract us from the gamut of real problems that today go unaddressed by haphazard, heavy-handed, and ineffectual executive branch approaches to national security.

Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism

History’s Lesson about Domestic Surveillance

By Jonathan Hafetz – 05/23/06

*Cross-posted from ACSBlog

 The plot thickened in the domestic spying controversy with the recent disclosure that the National Security Agency has been collecting phone call records of tens of millions of Americans. This revelation, by individuals familiar with the program, follows the President's admission in December that the NSA has been eavesdropping without warrants on international calls and emails of individuals with suspected links to terrorism if one party is in the United States.

Whose telephone calls is the NSA listening to? Whose phone records is it subjecting to "data mining" to develop more comprehensive profiles? We do not know the precise targets of secret NSA surveillance since the administration has blocked any congressional investigation into the agency's operational details. To be sure, the President says the NSA investigates only those with "known links" to al Qaeda and other terrorist groups. But history cautions against accepting that explanation at face value.

Throughout the Cold War, presidents of both parties spied on American citizens, and did so with increasing frequency and audacity.

Created by secret presidential directive in 1952, the NSA soon grew into a vast intelligence-gathering machine which spread ever-deeper into Americans' private lives and communications. One NSA program, known as Operation Shamrock, intercepted millions of telegrams to and from the United States. The NSA placed the names of law-abiding American citizens on 'watch lists,' and then disseminated their private communications to other government agencies such as the FBI and CIA.

It's easy now to dismiss these Cold War-era abuses as the product of misguided communist hysteria. But that would obscure the dangers unchecked surveillance poses to free speech and privacy rights today.

The NSA will inevitably view wholly legitimate activity through the lens of national security if permitted to operate in secret and without external checks. The agency's definition of "terrorist threat" will become increasingly elastic, causing it to target an ever-expanding range of lawful activity.

During the 1950s and 60s, the NSA and other agencies looked at the struggle for racial equality in vague, Cold War terms like "subversive activity." National icons like Dr. King -- whom we now think of as American as apple pie -- were considered security threats. Dr. King and other civil rights and anti-war leaders were not only subjected to illegal surveillance, but the information gathered was used to undermine their work.

If history is any guide, today's surveillance dragnet will inescapably sweep in those at the forefront of this generation's civil and human rights struggles. Intelligence agencies, for example, may view legitimate advocacy on behalf of Arab and Muslims in the United States or against the war in Iraq in terms of the administration's amorphous and ubiquitous "war on terrorism." Similarly, journalists and others investigating politically sensitive topics such as abuse at Guant√°namo Bay or secret CIA-run prisons are prone to an ever-expanding net of government spying.

Constitutional freedoms have already been chilled by fears that the government is eavesdropping on private conversations. Civil rights organizations worry their outreach and advocacy efforts are being monitored; human rights lawyers avoid talking to clients and witnesses; and journalists and their sources are afraid to communicate with each other.

History not only highlights the dangers of unchecked surveillance; it also points to a solution. In the mid-1970s, the Church Committee conducted a far-reaching Senate investigation into U.S. intelligence agencies, including the NSA. The Committee's fourteen reports helped prompt significant legislative reforms, including the Foreign Intelligence Surveillance Act of 1978, which carefully regulates intelligence-gathering, including of suspected terrorists.

An investigation of this administration's intelligence activities is necessary to vindicate the principles of openness and accountability on which a democratic society depends. Thus far, however, the only people being investigated are the officials who helped make the existence of the secret spying program known to the American public.

In addition, any further surveillance must be conducted in accordance with the statutory framework established by Congress and the Fourth Amendment. The NSA, for example, must obtain a warrant from the Foreign Intelligence Surveillance Court before eavesdropping on telephone calls of American citizens and residents. If current procedures need to be fine-tuned, then any necessary changes must be made by the legislature, not by executive fiat.

Circumventing legal checks ultimately does not protect America's security. Instead, it jeopardizes the country's tradition of constitutional freedoms and commitment to the rule of law.

Tags: Justice, Liberty & National Security, Domestic Counterterrorism

The First (and Quite Bad) Legal Interpretation of the Military Comissions Act of 2006

By Aziz Huq – 04/06/06

Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism