Counterterrorism: Legalizing Illegality

By David K. Shipler

You may have noticed a pattern in counterterrorism since 9/11. First, the executive branch violates the law, provoking an uproar of outrage, and then Congress changes the law to permit the violations. This has happened several times in the last decade, most recently in the National Defense Authorization Act’s mandate that suspected terrorists be imprisoned by the military, possibly indefinitely. President Bush started doing just that without clear legal authority, locking up three U.S. citizens in military jails until the courts intervened. Instead of acting to prevent a recurrence, Congress has now codified this extraordinary power.

The peculiar dynamic here is very different from the one seen in the 1970s, after the FBI and other federal agencies illegally spied on civil rights and antiwar groups.
 Then, a carefully documented investigation by a bipartisan congressional committee, chaired by Sen. Frank Church of Idaho, prompted Congress to pass a series of laws restricting, not legalizing, the executive branch’s behavior.

The Right to Financial Privacy Act of 1978, for example, erected obstacles to government’s acquisition of personal banking, investing, travel, and other records. The Electronic Communications Privacy Act of 1986 forced law enforcement to get proper warrants and subpoenas before acquiring information on a person’s contacts by phone or, as technology evolved, by e-mail and Web browsing. The Foreign Intelligence Surveillance Act of 1978 (FISA) was enacted as an unprecedented attempt to regulate intelligence gathering inside the U.S. and, through a system of clandestine warrants signed secretly by federal judges, to make sure the government did not repeat the abuses of the past.

Since 9/11, however, the executive has not been seriously checked by the legislature. Quite the opposite. First, Congress shot holes through those privacy statutes, most notably FISA, through amendments contained in the 2001 Patriot Act. Then, even after FISA was weakened, the Bush administration surreptitiously defied the law by assigning the National Security Agency to eavesdrop extensively without bothering with the required warrants. Rather than tightening up, Congress in 2008 (with a yes vote by Senator Barack Obama) diluted the law’s warrant requirements. The changes “gave the government even broader authority to intercept international communications” than Bush’s program, according to a joint report by the inspectors general of the CIA, the NSA, the Justice Department, the Defense Department, and the Director of National Intelligence.

When it comes to detention policies, Congress has also been supine before a zealous executive branch—as in Bush’s unilateral attempt to strip Guantanamo prisoners of their access to the courts through habeas corpus, the venerated right by which a prisoner may summon his jailer to court to justify the incarceration. Bush declared that the prisoners could be held indefinitely without trials or attorneys.

The Supreme Court then ruled in 2004 that the Guantanamo detainees retained their habeas right. The following year, Congress denied them the right, in the Detainee Treatment Act, but the Court ruled in 2006 that the statute had failed to find that the country faced “cases of Rebellion or Invasion,” the Constitution’s test for suspending habeas corpus. (Since then, individual Guantanamo prisoners have experienced mixed results in their habeas petitions in the lower courts, where conservative judges have required the jailers to show minimal cause to hold them.)

Bush also ignored Congress in creating military tribunals to process the prisoners in lieu of trial. Much of the civilian and some of the military legal establishment cried foul, and the Supreme Court noted disapprovingly that the tribunals were “not expressly authorized by any congressional act.” So Congress obliged by passing the Military Commissions Act of 2006, which granted the president some of the most extensive powers in American history. Foreigners could be seized and designated enemy combatants in Afghanistan or Alabama, Iraq or Indiana. Searches in violation of the Fourth Amendment could be performed inside the U.S., with the resulting evidence admissible in a military trial. Unconfirmed hearsay could be introduced in violation of the Sixth Amendment’s right to confront accusers. Statements from coerced interrogations would be admissible in violation of the Fifth Amendment’s right against self-incrimination.

The law was amended in 2009 to restore the key rights in the Fourth, Fifth, and Sixth Amendments, but it remains a formidable tool, now expanded by the 2012 National Defense Authorization Act.

Congress has gone far beyond what the Obama administration wanted, and has authorized deep penetration into the rights of people who happen to come onto the government’s radar as suspected terrorists. The executive branch is denied the option of using civilian courts to conduct terrorism trials of non-Americans, unless the president issues a waiver in individual cases. The military is required to incarcerate those who have “substantially supported al-Qaeda, the Taliban, or associated forces,” either inside or outside the U.S., and could try them in military commissions.

That unusual requirement for military detention does not apply to U.S. citizens or legal permanent residents; in their cases, being thrown in the brig is optional; the president may hold them either in military or civilian custody. The Military Commissions Act does not permit military trials of civilian U.S. citizens or legal permanent residents, but under the new law they may be held indefinitely, “without trial until the end of the hostilities” begun with the 9/11 attacks. This is a draconian codification of the power of indefinite detention asserted by both Bush and Obama. How the Supreme Court will ultimately judge the statute’s constitutionality is a question.

Meanwhile, however, the same Congress that cannot untangle itself to extend unemployment benefits or payroll tax cuts finds it easy to move with remarkable efficiency to undermine constitutional rights. With Obama agreeing to sign this law, George W. Bush and Dick Cheney must be having a merry Christmas. You can imagine their satisfied smirks.