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AMERICAN CIVIL LIBERTIES UNION | 4 INTRODUCTION On the evening of September 11, 2001, President Bush addressed the nation. fiOur country is strong,fl he stated. fiTerrorist acts can shake the foundation of our biggest buildings, but they cannot touch the foundation of America.fl 1Those few words precisely captured the nature and scope of the challenge our country faced. The tragedy of the lives lost that horri˜c day was seared deeply into our hearts and our con -sciousness. The attacks had shown that even the world™s most powerful nation could not be completely secure from the threat of terrorism. But President Bush delivered a message of resilience and resolve: America™s fifoundationflŠits core values and founding principlesŠwas strong enough to withstand this threat, just as it had withstood many others. To allow that foundation to be undermined would be to deliver to terrorists the victory they were incapable of achieving on their own. Ten years later, as we remember and mourn those who died on September 11th, our nation still faces the challenge of remaining both safe and free. Our choice is not, as some would have it, between safety and freedom. Just the opposite is true. As President Obama recog -nized in a 2009 speech, fiour values have been our best national security assetŠin war and peace; in times of ease and in eras of upheaval.fl 2 Yet, our government™s policies and practices during the past decade have too often betrayed our values and undermined our security. Ten years ago, we could not have imagined our country would engage in systematic policies of torture and targeted killing, extraordinary rendition and warrantless wiretaps, military com -missions and inde˜nite detention, political surveillance and religious discrimination. Not only were these policies completely at odds with our values, but by engaging in them, we strained relations with our allies, handed a propaganda tool to our enemies, undermined the trust of communities whose cooperation is essential in the ˜ght against terrorism, and diverted scarce law enforcement resources. Some of these policies have been stopped. Torture and extraordinary rendition are no longer of˜cially condoned. But most other policiesŠinde˜nite detention, targeted killing, trial by military commissions, warrantless surveillance, and racial pro˜lingŠremain core elements of our national security strategy today.
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AMERICAN CIVIL LIBERTIES UNION | 5 We also could not have predicted that the unity and resolve of that September night would give way so quickly to the fear and fear-mongering of the next ten years. A decade after 9/11, our political leaders continue to permit the fear of terrorism to dominate our political and legal discourse. Terrorism has existed throughout history in various forms, and its threat persists today. But, by de˜ning the struggle against terrorism in existential termsŠas a fiwarfl without geographical or temporal limitsŠour leaders are asking us to accept a permanent state of emergency in which core values must be subordinated to ever-expanding demands of fina -tional security.fl The ten-year anniversary of the 9/11 attacks provides an auspicious moment to pause and re˚ect on where we have come and where we are headed. This report is our attempt to in -vigorate that critical national conversation. We have titled it fiA Call to Courage,fl because we believe that a de˜ning element of our national identityŠembodied in our national anthem™s pairing of fithe land of the freefl with fithe home of the braveflŠhas been imperiled by our leaders™ promotion of (or capitulation to) a politics of fear. We have seen Congress and the courtsŠwhich are intended to act as checks on executive overreachŠfail to perform their constitutional oversight, standing down rather than standing up to the exaggerated demands of an unchecked executive. Indeed, Congress has too often actively stoked the politics of fear, passing statutes that claim to be tough on terror but in fact make us less safe. Our nation can and must do better. Rather than working to allay public fear, our political leaders (with few exceptions) have ma -nipulated it, to the point where it can be dif˜cult to determine whether their expressions of alarm are genuine or merely opportunistic. Is it possible that many members of Congress actually believe that U.S. prisons are not secure enough to hold terrorism suspects? (And is it remotely conceivable that a member of Congress believes his own warning that if Khalid Sheikh Mohamed is brought to the United States for trial, he might be released on a technical -ity, granted asylum, and be on a path to citizenship?) These are arguments based on cynicism, not strength or resolve. President Obama recognized in a 2009 speech that ‚our values have been our best national security assetŠin war and peace; in times of ease and in eras of upheaval.™ Yet, our government™s policies and practices during the past decade have too often betrayed our values and undermined our security.fl fi
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AMERICAN CIVIL LIBERTIES UNION | 6 And that cynicism is emboldened by a political discourse that rewards those who in˚ate the terrorist threat and marginalizes those who accurately describe it. Thus, those who proclaim that Muslim terrorists represent an unprecedented threat to our way of life; that our existing laws, courts, and institutionsŠeven our prisonsŠare inadequate in the face of this threat; that we have no choice but to dispense with core principlesŠincluding even the prohibition against torturing prisonersŠto defeat this ruthless enemy; that, in short, fi9/11 changed ev -erythingflŠare extolled as hard-nosed realists, warriors who are willing to fitake the gloves off.fl By contrast, those who defend the vitality and viability of our constitutional system, who insist that our existing institutions are equal to the challenges posed by transnational terror -ism; who demand that we abide by core principles, including fair trials for and humane treat -ment of prisoners, even if that means that terrorism suspects must be released and political leaders must be prosecuted; who, in short, do not believe that the threat of terrorism requires us to abandon our core principlesŠare dismissed as weak and naïve. Confronting the threat of transnational terrorism unquestionably involves both military and law-enforcement resources. The question is where to draw the appropriate line between the two.fl fiThis dynamic of our political discourse has been driven in part by a wholly contrived fidebatefl over whether the threat of terrorism calls for a fimilitaryfl or filaw enforcementfl response, with the former depicted as muscular and the latter anemic. According to this view, punishing ter -rorists as the criminals they are is derided as a re˚ection of a fipre-9/11 mindset,fl while ag -grandizing them as the warriors they claim to be is celebrated as taking the threat fiseriously.fl But this debate says more about the self-image of the would-be warriors than it does about any realities of counter-terrorism. Confronting the threat of transnational terrorism unques -tionably involves both military and law-enforcement resources. Certainly no one advocated deploying the New York Police Department to Kandahar in 2001 to battle Al-Qaeda-trained militias; by the same token, no one (or almost no one) would advocate that Navy Seals con -duct a night raid in Brooklyn to capture or kill a U.S.-citizen terrorism suspect. The question is not whether to employ a military or law-enforcement response, but rather where to draw the appropriate line between the two. And in the last decade, we have allowed the super˜cial rhetoric of a fiwar on terrorfl to solidify into a set of policies that have degraded the rule of law. Thus was an American citizen seized by the military from a New York jail, branded by President Bush as an fienemy combatant,fl and locked away in a Naval brig without charge or trial. Thus did President Bush, claiming war powers, secretly assert the authority to violate congressio -nal prohibitions and ignore the need for judicial authorization in ordering the electronic sur –
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AMERICAN CIVIL LIBERTIES UNION | 8 the growth of a vast government surveillance apparatus and the simultaneous contraction of critical oversight mechanisms, and discusses how those twin developments constitute a stealth threat to democratic government. We look to our leaders and our institutions, our courts and our Congress, to guide us towards a better way, and it is now up to the American people to demand that our leaders respond to national security challenges with our values, our unityŠand yes, our courageŠintact. Our country is strong. And it is our fundamental values that are the very foundation of our strength and security.
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AMERICAN CIVIL LIBERTIES UNION | 9 CHAPTER I AN EVERYWHERE AND FOREVER WAR On May 26, 2011, a majority of the U.S. House of Representatives voted to give President ObamaŠand all future presidentsŠmore war authority than Congress gave to President Bush two days after the 9/11 attacks: under the House bill, a president would no longer have to show a connection to 9/11, or even any speci˜c threat to America, before using military force anywhere in the world that a terrorism suspect may be foundŠincluding within the United States. The House vote was a discordant spectacle because it sought to place the nation on a perma -nent war footing at a time when responsible policy-making called for the opposite. The vote took place just days after Osama bin Laden had been killed and, as Defense Secretary Leon Panetta would soon con˜rm, we were fiwithin reach of strategically defeating Al Qaedafl; 4 be -fore the vote, in what can fairly be described as an understatement, the Obama administration had told the House that the executive branch already had all the war powers it needed. Finally, ten years after 9/11, our nation is exhausted by the high cost in blood and treasure of two wars begun with the stated goal of combating terrorism. Yet, instead of pausing to consider whether the time had come to ratchet down the nation™s war against terrorism, 243 members of the House voted to expand and entrench it. The vote was also a singular abdication of Congress™s role in our system of checks and balanc -es. War powers are awesome powers. Once given to the executive, they vest largely unchecked authority in the president to unleash the coercive power of the state to kill or imprison indi -viduals without affording them traditional procedural protections. In order to ensure that war powers are exercised with wisdom and restraint, our Constitution assigns to Congress its most important and fundamental responsibility: fito declare Warfl by specifying enemies, de -˜ning clear objectives, and setting limits that keep the executive™s war powers within bounds. Yet, the scope of the con˚ict that the House approved is so expansive that, if approved by the full Congress (so far, the Senate has not gone along with the House), it would be the single largest hand-over of unchecked war power to the executive branch in American history.
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AMERICAN CIVIL LIBERTIES UNION | 10 Why would so many in the House be so willing to cede such vast and unnecessary war pow -ersŠwhich could last for generationsŠto the executive? The answer lies in the unrelenting drumbeat by some of our political leaders to force the na -tion into a military response to any act or even threat of terrorism anywhere in the world. That drumbeat draws no distinction between combatants in KandaharŠagainst whom a military response may be lawful and necessaryŠand suspected terrorists in KentuckyŠagainst whom it is neither. It is a drumbeat that ignores our strengths and promotes our failures: it rejects a criminal justice system that has successfully prosecuted hundreds of suspected terrorists safely and in accordance with our laws, for a discredited military commissions system that has prosecuted six controversial cases and that violates our Constitution and international law. It is a drumbeat, in short, that falsely posits terrorism as an existential threat that re -quires us to reject our fundamental values of due process, fairness, and justice, in favor of inde˜nite military detention, unfair military trials, and unlawful killing. Of course, it is not only some in Congress who have embraced a worldwide war against ter -rorism. Since 9/11, there has been no more dramatic or consequential development than the contention by both the Bush and Obama administrations that the United States is engaged in a global armed con˚ict against loosely de˜ned terrorist entities and unde˜ned fiassociated forces.fl The most concrete policies that have followed from this problematic construct are the inde˜nite military detention and lethal targeting of civilians far from any conventional battle -˜eld or theater of war. Guantanamo, which from its inception was a laboratory for unlawful military interrogation, detention, and trials, remains an enduring symbol of inde˜nite military detention. Before President Obama came to of˜ce, he rightly declared that the Bush administration had ficom -promised our most precious valuesfl in creating Guantanamo. 5 When the President announced on his second full day in of˜ce that he would close the prison, Americans responded with relief that a shameful episode in our history would come to an end. To its discredit, Congress subse -quently passed laws seeking to keep Guantanamo open by restricting the release or transfer of Guantanamo prisoners, including those who are undeniably innocent and who are still be -ing held there ten years after 9/11. Since 9/11, there has been no more dramatic or consequential development than the contention by both the Bush and Obama administrations that the United States is engaged in a global armed con˜ict against loosely de˚ned terrorist entities and unde˚ned ‚associated forces.™fl fi
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AMERICAN CIVIL LIBERTIES UNION | 11 But President Obama™s pledge to close Guantanamo was undermined by his own May 2009 announcement of a policy enshrining at Guantanamo the principle of inde˜nite military de -tention without charge or trial. 6 Supporters of the Guantanamo principle, both in the White House and Congress, insist that inde˜nite military detention is necessary because Guanta -namo houses a handful of apparently committed terrorists who intend to do us harm, but who cannot be prosecuted in federal court, either because we do not have the evidence to try them, or because our courts cannot be trusted to convict them. These are arguments based not on facts, but on fear-mongering. Our system of laws provides ample authority for federal prosecutors to try individuals, in -cluding suspected terrorists at Guantanamo, for even the most attenuated terrorism-related activities. Federal fimaterial supportfl and conspiracy statutes allow the government to secure convictions without having to show that any speci˜c act of terrorism has taken place, or is being planned, or even that a defendant intended to further terrorism. 7 Both the Bush and the Obama administrations have successfully prosecuted al Qaeda and Taliban members for supplying funds or equipment, and for attending, or trying to attend, terrorist training camps. Indeed, fimaterial supportfl laws are so expansive that they have been interpreted to criminal -ize even conduct and speech that is protected by the First Amendment. 8 The courts are also well able to protect any secrecy interest the government has in the evidence supporting these prosecutions through a federal statute expressly enacted to permit the government to sub -stitute unclassi˜ed summaries for classi˜ed information. 9 It is dif˜cult, therefore, to imagine that the government could not prosecute any terrorism suspect under the extremely broad authority of our federal anti-terrorism laws. If the government does not have evidence that a person meets even the minimal material support threshold, it is harder still to imagine any possible justi˜cation for inde˜nitely detaining that person, possibly for years, possibly for life. It should go without saying that the government must not detain people without trial because its only fievidencefl has been tortured out of them. The real danger of the Guantanamo inde˜nite detention principle is that its underlying ratio -nale has no de˜nable limits. Military detention may be legitimate for those captured on an actual battle˜eld, as the Supreme Court recognized in Hamdi v. Rumsfeld. 10 But in the context of a war against terrorism without speci˜ed enemies and geographic or temporal limitations, it is simply not possible, let alone lawful, for us to detain inde˜nitely everyone who we think may, at some point, present a danger. And if we accept the rationale that our safety requires the detention of people who might be dangerousŠeven if we cannot prove that they violated any lawsŠthen there is no limit to whom the government can imprison in the name of that safety. (Indeed, legislation now pending in Congress would expand, and in some cases make mandatory, inde˜nite military detention authority for U.S. citizens suspected of terrorism.) The Obama administration and Congress may start out by seeking to limit the Guantanamo principle to suspected terrorists, but future political leaders would apply that principle™s dubi -ous rationale to transnational drug traf˜ckers responsible for killings along our bordersŠor
61 KB – 36 Pages