Institutionalizing the war on terror through legislation (redux)

If it is time for the White House and Congress to get together and create a solid, institutional structure for US counter-terrorism policy, what are the most important questions for that policy? They are not the ones you might initially think of - questions of institutional design, how should Homeland Security be organized, etc. Those are important, yes, but the most important questions for the legislature to answer are, instead, questions of values. What values should our policy of counter-terrorism enact? What should the tradeoffs between liberty and security be? if you look at the heated, divisive debates in the US and abroad over the war on terror, the most incendiary, and most bitter, are not about institutions or institutional design - not the technocratic questions - but the questions about values.

What are some of those values questions? Generally, they fall into the following categories:

• Surveillance - whose phone calls can you listen to without a warrant, eg?
• Detention - who can you detain, for how long, and do you need legal charges, must it be done under court authority, or can it be done pursuant to commander in chief power?
• Interrogation, rendition, and the line of torture - what counts and what doesn't count as torture? Note the agonizing that Tom Bevan of RCP mentions in the UK Guardian over revelations that the UK airliner plot was likely revealed through torture of suspects in Pakistan, here.
• Classified information - what information should be classified, how much should be classified, and what should the penalties be for revealing it?
• Domestic intelligence - should the US have a domestic intelligence agency, such as the British MI5? Ostensibly an institutional design issue, in fact it raises far reaching questions of balancing values.
• A special counter-terrorism court system - for both trying US citizens accused of terror as well as for reviewing the status of non-US people held as illegal combatants - is it time to move in the direction of Western European countries with a special system of tribunals?
• Covert action - do we need new rules on covert action, such as assassination, destruction of terrorist bases, kidnapping of suspected terrorists - uses of force that do not necessarily involve "armed conflict" within the meaning of international humanitarian law?

These are all questions of values. The right place to decide these things is in laws passed by the Congress. The British airline plot points out that, no, terrorism is not simply something that goes away because Americans are bored with it and have decided to move on. You may not be interested in terrorism, but terrorism is interested in you.