Rights and the ‘war on terror’

Congress and President Obama have been buffeted by criticism for the way they handled, or mishandled, legislation designed to prevent the economy from going over the so-called fiscal cliff. Comparatively, little attention has been paid to another recent failure of statesmanship by both of those branches of government: the perpetuation of laws and policies that undermine civil liberties and government transparency in the name of the “war on terror.”

On Wednesday, Obama signed the 2013 National Defense Authorization Act, a $633-billion blueprint for Pentagon spending that is objectionable for both what it contains and what it omits. Like last year’s version, the act prohibits the use of Defense Department funds to transfer inmates at Guantanamo Bay, Cuba, to the United States, effectively making it impossible for Obama to fulfill his long-deferred promise to close the facility or to try some of the detainees in civilian courts. And the act lacks language making it clear that the military’s authority to detain suspected terrorists does not extend to U.S. citizens.

The White House had hinted that Obama might veto the bill, as he should have done given its infringement of his authority. Instead, he signed it and issued a convoluted signing statement in which he deplored not only the ban on moving Guantanamo inmates to the United States but other provisions making it difficult to send them to other countries or to transfer detainees now held in Afghanistan to other facilities. Obama rightly said that these provisions encroached on his constitutional powers to conduct foreign policy and bring terrorists to justice, and he warned that he would implement those provisions “in a manner that avoids the constitutional conflict.” But given the administration’s past acquiescence to Congress’ obstructionism on closing Guantanamo, that seems a hollow threat.

Guantanamo isn’t the stain on America’s reputation that it was during the George W. Bush administration, when its population approached 800 and the administration’s refusal to extend meaningful due process to the inmates turned the facility into a legal black hole. (The population since then has dwindled to 166.) Still, as Obama pointed out in his signing statement, “operating the facility weakens our national security by wasting resources, damaging our relationships with key allies, and strengthening our enemies” by serving as a recruiting tool for terrorists. The same can be said of Congress’ sabotage of civilian trials for suspected terrorists, including the architects of the Sept. 11 attacks who are now on trial before a military commission at Guantanamo.

Another objectionable feature of the defense authorization bill — one that Obama didn’t complain about — is its failure to resolve an ambiguity in the law about whether U.S. citizens arrested in this country and accused of terrorism can be held indefinitely in military custody. The Senate version of the bill included an amendment by Sen. Dianne Feinstein (D-Calif.) declaring: “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an act of Congress expressly authorizes such detention.” But the provision was stripped from the bill in a House-Senate conference committee. In signing last year’s defense authorization, Obama promised that “my administration will not authorize the indefinite military detention without trial of American citizens.” Even if that remains the president’s intention, he should have insisted that it be codified in law.

The defense authorization bill isn’t the only example of congressional and presidential indifference to civil-liberties concerns raised by the “war on terror.” Obama also has signed a five-year extension of amendments to the Foreign Intelligence Surveillance Act that allows the government, with minimal judicial oversight, to monitor the electronic communications of suspected foreign terrorists even when an American is at one end of the conversation. Although the law prohibits U.S. citizens from being “targeted” for electronic surveillance without an individualized court order, civil libertarians worry that vast quantities of email and phone calls involving Americans are being scooped up and data-mined. But Congress refused to approve an amendment that would have required the intelligence community to provide estimates of how many such conversations were being monitored. Feinstein, chair of the Intelligence Committee, insists that the law as is contains “strong privacy protections,” but enactment of the rejected amendment would have made such assurances more credible.

In fairness, Congress and the administration have acted to ameliorate some of the worst excesses of the Bush administration’s anti-terror policies. Congress passed the Detainee Treatment Act outlawing “cruel, inhuman or degrading treatment or punishment” of prisoners, including inmates at Guantanamo, and Obama went a step further by requiring the CIA to abide by the Army Field Manual’s limits on abusive interrogation. The Bush administration’s warrantless wiretapping program was brought under some congressional and judicial oversight, and Congress replaced the military commissions established by the Bush administration to try accused terrorists with tribunals that afforded more due process (while still falling short of the protections of civilian trials).

Still, more than a decade after Sept. 11, the government has yet to reestablish the proper balance between security and liberty. The blame for that failure of leadership belongs at both ends of Pennsylvania Avenue.