War About Terror Civil Liberties and National Security After 9/11
Total Page：16
File Type：pdf, Size：1020Kb
WORKING PAPER War About Terror Civil Liberties and National Security After 9/11 Daniel B. Prieto with research assistance from Swetha Sridharan February 2009 The Council on Foreign Relations (CFR ) is an independent, nonpartisan membership organization, think tank, and publisher dedicated to being a resource for its members, government officials, busi- ness executives, journalists, educators and students, civic and religious leaders, and other interested citizens in order to help them better understand the world and the foreign policy choices facing the United States and other countries. Founded in 1921, CFR carries out its mission by maintaining a diverse membership, with special programs to promote interest and develop expertise in the next generation of foreign policy leaders; convening meetings at its headquarters in New York and in Washington, DC, and other cities where senior government officials, members of Congress, global leaders, and prominent thinkers come together with CFR members to discuss and debate major in- ternational issues; supporting a Studies Program that fosters independent research, enabling CFR scholars to produce articles, reports, and books and hold roundtables that analyze foreign policy is- sues and make concrete policy recommendations; publishing Foreign Affairs, the preeminent journal on international affairs and U.S. foreign policy; sponsoring Independent Task Forces that produce reports with both findings and policy prescriptions on the most important foreign policy topics; and providing up-to-date information and analysis about world events and American foreign policy on its website, CFR.org. The Council on Foreign Relations takes no institutional position on policy issues and has no affilia- tion with the U.S. government. All statements of fact and expressions of opinion contained in its pub- lications are the sole responsibility of the author or authors. For further information about CFR or this paper, please write to the Council on Foreign Relations, 58 East 68th Street, New York, NY 10065, or call the Director of Communications at 212.434.9400. Visit CFR’s website, www.cfr.org. Copyright © 2009 by the Council on Foreign Relations®, Inc. All rights reserved. Printed in the United States of America. This paper may not be reproduced in whole or in part, in any form beyond the reproduction permit- ted by Sections 107 and 108 of the U.S. Copyright Law Act (17 U.S.C. Sections 107 and 108) and excerpts by reviewers for the public press, without express written permission from the Council on Foreign Relations. For information, write to the Publications Office, Council on Foreign Relations, 58 East 68th Street, New York, NY 10065. Contents Foreword v Acknowledgments ix Author’s Note xi Acronyms xi Working Paper Introduction 1 Framing the Debate: Civil Liberties and National Security 5 Detention and Interrogation 16 Domestic Intelligence 44 Conclusion: The President, Congress, and the Way Forward 66 Appendixes 73 Endnotes 91 About the Author 98 Advisory Committee 99 v Foreword President Barack Obama, in one of his first moves in office, reversed some of the most controversial detention and interrogation policies of the Bush administration. His three executive orders mandated the closure of the Guantánamo Bay detention facility within a year, and suspended both military commission proceedings and the CIA’s enhanced interrogation program. But the interagency task force established by the executive orders has a difficult task ahead: it must not only determine the future of the remaining detainees at Guantánamo, but also shed light on how to detain and interro- gate future terrorist suspects in a manner consistent with American law and American values. The Council on Foreign Relations’ Independent Task Force on Civil Liberties and National Secu- rity aimed to analyze these very issues. It was launched on the fifth anniversary of the attacks of Sep- tember 11, 2001, when tensions between counterterrorism priorities and civil liberties concerns were at a fever pitch. Consensus on national security policies and programs was elusive—a result of intense partisanship and an increasingly elaborate policy tug-of-war among the branches of govern- ment. There was an absence, as there is now, of a durable framework for effectively securing the United States against terrorism while also upholding its values. The Council on Foreign Relations initiated the Task Force in order to contribute to the national discussion on these dueling priorities. The Task Force sought to analyze the foreign policy dimen- sions of the civil liberties debate. It also aimed to craft a long-term strategy for minimizing trade-offs between security and liberty, and, where possible, pursuing both priorities at once. The hope was to learn from the past seven years and to ensure that the response to any future attack judiciously ad- vanced both civil liberties and national security objectives. In the end, however, despite a great deal of thoughtful deliberation by its two dozen members, the Task Force was unable to reach a consensus. The CFR-sponsored Task Force on Civil Liberties and National Security encountered unique challenges. The nature of the threat to the United States and the ensuing war on terror was new and unprecedented. The issues were extraordinarily politicized. Policymakers were deeply divided on how far executive powers should extend during wartime and on the appropriate role of the courts. The civil liberties versus national security debate became increasingly splintered during the course of the recent election season, a fact that was mirrored in the group. In addition, the political context of these discussions changed, as the Bush administration reviewed and modified many of its earlier poli- cies and as the country prepared for a presidential transition. The moral aspects of the debate served to divide the Task Force even further. The group agreed that the threat to the United States was real and that significant efforts were needed to prevent future attacks. But, like most Americans, members had deep-seated views of what was right or wrong with America’s conduct in the war against terrorism. All of CFR’s Independent Task Forces struggle to find the right tone in presenting judgments on the given issue. The civil liberties Task Force, however, faced a particular obstacle. Most often, Task Forces assess U.S. policies toward other countries and regions. A review of counterterrorism practic- vi es required instead that this Task Force look inward. The members could not come to a consensus on the appropriate level of criticism their report should adopt, or on how much to look backward at the past seven years of U.S. counterterrorism practices. As a result of these difficulties, and despite considerable effort, the Task Force was unable to agree on a set of meaningful conclusions. I continue to believe, however, that it is important that the Coun- cil on Foreign Relations add to the national debate on issues of such importance to American democ- racy and to the way the world sees the United States, especially as the Obama administration launches its interagency review of detention and interrogation policies. We therefore decided to pub- lish this working paper building on the Task Force’s work. Authored by Project Director Daniel B. Prieto, it reflects two years of intense deliberations with the Task Force, although we have not asked the members to sign off on or otherwise endorse the document. It is therefore not the product of any consensus. Many of the Task Force members did agree to be recognized as part of the advisory com- mittee, and I thank them and indeed all members for their input and efforts. We decided to publish the study as a working paper because this format allows the document to be posted quickly online, essential when the issues involved are in flux. The Council on Foreign Rela- tions periodically publishes working papers when ongoing debates or changing policies call for an easily accessible document that can make an immediate contribution to the public discussion. This is certainly the case for issues involving civil liberties and national security, which are very much a mov- ing target. Institutionally, the process of bringing this paper to fruition has shown us the considerable extent to which reasonable people can disagree on decisions of vital importance to America’s security, val- ues, and national character. It has given us valuable insight into the challenges that policymakers and practitioners faced after 9/11. Intelligent people who had America’s best interests at heart were mak- ing difficult decisions at a difficult time. This working paper, we hope, will provide some guidance to all those who continue to work on these issues. This study finds that even if the United States successfully solves some of the most high-profile counterterrorism issues on the table, it will still lack a comprehensive, coherent, and sustainable framework for dealing with the strategic challenge posed by transnational terrorism. It argues that sharp disagreements over national security and civil liberties, as well as errors and overreach in U.S. counterterrorism practices, have stood in the way of America’s ability to forge a critical and sustaina- ble foreign policy accord on how to address terrorist detention and trials, as well as domestic intelli- gence policies. The study recommends that the United States reexamine the scope and limits of its war against al-Qaeda, treating national security and the protection of individual liberties as coequal objectives. It calls on Congress and the president to engage these issues in a bipartisan fashion and craft comprehensive long-term counterterrorism policies that reaffirm the U.S. commitment to core values. Only then, it argues, will the United States be able to achieve the kind of foreign policy agree- ment necessary to prevail against the modern terrorist threat. We are indebted to two distinguished public servants, Bob Kerrey and William H.