Saturday, September 02, 2006

Legislating the war on terror - my piece in the NYT Magazine

Shameless self-promotion, I'm afraid, but I do think the issue is an important one, especially in the run up to the November 2006 midterm elections. Where, oh where is Congress in legislating counterterrorism policy? Congress has to take responsibility for policy in the long term war on terror, the struggle against terror that outlasts this administration and likely the one after that.

We're a democracy; something this big and this important has to be established by the people's representatives - and that's true whether you believe, as I do, in an aggressive, forward, offensive-based war on terror and think the Bush administration's overall thrust of policy fundamentally right, or you think it's not a war at all, shouldn't be conceived as a war, and needs to be something else altogether.

That's the topic of my piece in the Sunday, September3, 2006 issue of the New York Times Magazine, It's Congress's War, Too." It's a short, op-ed length piece. If you want to make comments on the piece, feel free to do so here at this blog. Excerpts:

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Idea Lab
New York Times Magazine
Sunday, September 3, 2006

It’s Congress’s War, Too

By KENNETH ANDERSON

Two branches of our government are hard at work in the war on terror. Sometimes, to be sure, they work at cross-purposes. Executive agencies devise a warrantless surveillance program — and a federal judge declares it unconstitutional. Administration officials and federal bureaucrats devise rules for trying accused terrorists in military tribunals — and the Supreme Court, in its Hamdan decision, sends the tribunal drafters back to the drawing board. Yet for all their differences, the executive and judicial branches each have important roles to play in establishing U.S. counterterrorism policy.

But where are the people’s elected representatives in all this? After all, the Hamdan decision, despite leaving many momentous questions open, makes one thing reasonably clear: responsibility for democratically establishing policy in the war on terror falls to the legislative branch. So where is Congress? Irrespective of where you come down in the debate on the war on terror — including whether it should even be conceived of as a war — counterterrorism policy should be formed through Congressional legislation, the only legitimate mechanism for the long haul in a democracy. This ought to be a priority for both Congress and the Bush administration, because no matter who wins the 2008 election — or the 2006 midterms — there is not likely to be any coherent national counterterrorism policy at all past the end of the second Bush administration unless Congress takes steps to legislate it and go beyond merely executive discretion.

Some in the Bush administration have fixated on this question of executive discretion, insisting that the successful prosecution of the war on terror requires strong executive power — power they see as eroding since Watergate. But in considering its next move, the Bush administration should mark well that what lives by executive discretion also dies by executive discretion. If a comprehensive national counterterrorism policy — that is, a war on terror — is as important as the White House believes it is, then it merits the blessing of the legislature and ought not to exist merely at the discretionary whim of some future president.

What would comprehensive legislation to institutionalize national counterterrorism policy look like? Counterterrorism can be construed to cover almost anything you like — this is why it can so threaten civil liberties. But those policies that matter most are the ones that bring America’s basic values into the struggle against terror. Such policies have deeply divided the American people and deserve answers whose democratic legitimacy can only come from the people’s representatives.

Surveillance at home and abroad

Whatever you think of the legality of, for example, the National Security Agency’s surveillance programs, or Judge Anna Diggs Taylor’s ruling of unconstitutionality, Congress needs to decide plainly on the balance between national security and civil liberties that such programs represent. A deal is in the works that puts oversight into the hands of the Foreign Intelligence Surveillance Act court. But the bottom line is not so much who does the oversight as something more basic: if you are reasonably thought to be calling numbers reasonably thought to belong to terrorists abroad, the American people expect their government to try to listen in.

Detention and rendition

The Bush administration claims the right to hold detainees in the war on terror for the duration of the conflict. Its critics counter that the war in question is defined so loosely that you might as well say that detainees may be held until the global war against evil is won and it is banished from the world. Guantánamo has received much understandable criticism; the administration’s critics in turn can be questioned for imagining to themselves that the Bush administration’s detainees are luckless shepherds. Some are; some aren’t. Even Human Rights Watch acknowledges that some “really bad guys” are being held in secret C.I.A. centers abroad. These are serious jihadists, not people to just turn loose. Who should decide how to handle this? Under any administration, serious counterterrorism policy will recognize that people will, in fact, be detained, and we have to have a place and a manner for dealing with them. Only the very wishful can believe that the issue will go away or that it goes away merely by closing Guantánamo.

A domestic intelligence agency

Does the U.S. need a dedicated domestic intelligence agency, similar to Great Britain’s MI5, rather than relying on the F.B.I.? The F.B.I. excels at solving crimes that have already been committed. It is not good at, and not really interested in, finding needles in haystacks. Yet this is precisely what much intelligence work is about when it comes to preventing terrorist attacks rather than investigating them afterward. Establishing such an agency would be an unprecedented and potentially liberty-threatening step, never before seen in this country. Does the threat of catastrophic terrorist attacks — possible plots against the Sears Tower or New York City tunnels, to take two recent examples — warrant a whole new system of domestic intelligence?

Interrogation and the definition of torture

Of all the values issues in the war on terror, none have aroused such strong emotions as interrogation and what crosses the line into torture. The anguished discussion over the possibility that information crucial to preventing the London airline plot was obtained in Pakistan through harsh interrogation, perhaps torture, only raises the stakes. In order to go beyond the abstract phrases of existing laws and treaties, Congress must be willing to legislate what exact techniques are permissible, under what circumstances and with what oversight — not euphemisms, not ambiguous language, but plain, exact descriptions of techniques and when and how they may be used. Is waterboarding, for example, torture? If it is, then Congress should say so without reservation. If it is not and if it is merely “harsh” treatment, should harsh or physically coercive interrogation ever be permitted? If harsh or physically coercive interrogation is ever permitted, then Congress should say exactly and in precise detail when and how it may be performed by American authorities and upon whom. These activities are too morally fraught to permit anything other than the on-the-record vote of each legislator. Let our legislators tell us plainly what tough trade-offs they make between our security and our liberties — because indubitably there are trade-offs.

Reforming the classification system

The statutes for classifying information are inimical to the First Amendment in their vagueness and overreaching — and they have not been consistently enforced. The entire classification system needs to be revamped, first to cut down by whole orders of magnitude the amount of material marked as classified in the first place and second to create meaningful and enforced legal penalties for revealing what is left.

A special counterterrorism court system

Should terrorism cases be quarantined in a special court system? If not, there is a danger that terrorism could become the tail that wags the dog of justice, risking civil liberties across our whole legal system. If we insist on using a judicial system tailored to ordinary criminals to deal with those who are both criminals and enemies of our political order, then we risk dragging down the entire criminal justice system to the level necessary to contain the terrorist threat — or we risk not dealing with the threat at all. When it comes to those who deviate from the social order, we should not sacrifice the nobler aims of the criminal justice system — including rehabilitation — because we have no choice but harshness in dealing with terrorists. We do not owe those who declare themselves enemies of our constitutional political community, and then pursue their war with the most criminal means, the same moral or legal obligations we owe to ordinary criminals.

It is unlikely that the House and Senate will conceive of far-reaching counterterrorism legislation before the November elections, when many things may change. And even after November, it is unlikely that a deeply divided American people and its representatives will be able to achieve the kind of legislative “consensus” that nonpartisan pundits often call for. But perfect consensus should not stand in the way of democratic choice. This is a democracy — let legislative majorities, Republican or Democrat, make decisions. In any case, the Bush administration, as it says goodnight, ought to consider that the war on terror will over time amount to little if it is unwilling to go to Congress to ask that it be enacted as the policy not of the Bush administration or of any administration but of the United States.

Kenneth Anderson, a research fellow of the Hoover Institution and a law professor at American University, was legal editor of “Crimes of War” and is completing a book on global governance.

2 comments:

Marty Lederman said...

Very nice column, Ken. I agree with much of it, even though I'm not terribly sanguine about the legislation that we will see proposed in Congress in the next couple of weeks.

Two minor, but important, qualifications:

1. The general thrust of your piece is a sentiment that many folks share, which is that Congress has been AWOL. You claim that "two branches of our government are hard at work" -- the Executive and the Judiciary -- and ask "where are the people’s elected representatives in all this?"

This is an odd question to be asking , given that every single relevant Supreme Court case -- Rasul, Hamdi, Hamdan, etc. -- has turned on *construing statutory rules* -- and that there are a veritable slew of statutes (and Senate-ratified treaties) already dealing with most or all of these issues in extensive detail. See, e.g., FISA (including several post-9/11 amendments), the Torture statute, the Geneva conventions, the UCMJ, the War Crimes Act, the PATRIOT Act, the assault statute, the DTA, the McCain Amendment, etc.

The problem is not that Congress has been silent -- the U.S. Code is teeming with laws regulating all of the areas you identify, including as applied to the conduct of war -- but instead that the Administration has refused to follow the rules laid down by duly enacted statutes, has tried its damnedest to keep its conduct secret from Congress, and, to the extent it believes pre-existing statutes are ill-suited to the new war(s), has failed to ask Congress for amendments. (Whenever the Administration has asked for statutory developments, e.g., the PATRIOT Act, Congress has been quick to respond.) All of which is to say that the accusatory finger is pointing at the wrong branch.

2. Second, in the interrogation section, there's the suggestion that the key question is what constitutes "torture." But we are party to treaties that also prohibit all "cruel treatment" (Common Article 3) and "cruel, inhuman and degrading treatment" (the CAT, not to mention the McCain Amendment). Although the due-process-based standards for the latter are (unfortunately) vaguer than they ought to be, in light of the Administration's strained reading of the due process precedents, the CA3 ban on all "cruel treatment" (not to mention "outrages upon dignity") is a fairly good starting baseline prohibition, and my understanding is that there are fairly clear understandings under Geneva as to what constitutes "cruel treatment and torture."

In my view, no statute is needed to add to that prohibition. What the Administration wishes to do, of course, is to *authorize* the CIA to engage in "cruel treatment," i.e., to authorize violations of the Geneva Conventions. See http://balkin.blogspot.com/2006/08/cia-cruelty-authorization-act-of-2006.html. Personally, I think this would be a bad idea. This is one area in which the better course of action would simply be for Congress to embrace the post-Hamdan status quo, i.e., to affirm our commitment to abjuring the use of cruelty against those in our custody.

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