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Lost in the debate about how to defeat terrorist tactics is the fact that the terrorists’ strategy is to terrorize. Whether this is done through violence or by making threatening audiotapes, their aim is to scare us into changing who we are and what we do.
The way to protect America from terrorism, therefore, is not only to thwart attacks before they occur but also to refuse to bend our principles to the arc of the terrorists’ will.
Since Sept. 11, we’ve made important strides in the effort to thwart attacks before they occur. We have reorganized our intelligence agencies under a single intelligence commander. We have captured and killed some top al Qaeda leaders, and we have begun the process of hardening America’s vulnerable targets.
But these efforts are incomplete. The new director of national intelligence has been slow to force 15 intelligence agencies to change from a culture of “need to know” to “need to share.” The agile terror networks have morphed into decentralized “copy cat” cells that are harder to track than they were on Sept. 11. And, as report after report on Hurricane Katrina shows, the effort on homeland security has been plagued by bureaucratic inertia, lack of strategic funding and questionable decisions, such as outsourcing port security to a company controlled by a Persian Gulf emir.
But more troubling than those tactical errors has been the Bush administration’s refusal to back off an ideological position that the president, in his role as commander in chief, can ignore the Constitution and the law in fighting the “war” on terror.
Soon after Sept. 11, Justice Department lawyers crafted legal opinions that created a new category of detainees called “enemy combatants” who were incarcerated outside U.S. soil yet for whom the Geneva Conventions did not apply. This permitted “ghosting,” a shocking practice, since discontinued, of not informing the Red Cross of the names of some in prison.
Though the abuses at Abu Ghraib, Guantanamo and elsewhere do not appear to have been explicitly authorized by senior U.S. officials, the lack of a clear legal framework permitted aberrant behavior that “set the conditions for interrogations.”
In contrast, President Bush 41 created a system of battlefield tribunals during the first Gulf War to give every detainee a legal status and an ability to challenge that status.
For two years, I and others tried to engage the administration to establish a legal framework for detaining and interrogating terror suspects, recognizing that detentions and interrogations are vital tools in the effort to disrupt terrorists.
But the administration refused to engage, insisting that the president had “all the authority he needed” under Article 2 to set unilaterally the rules for detentions and interrogations. First, the courts stepped in: Justice O’Connor wrote in the Hamdi decision that a state of war is not “a blank check” for the president. And more recently, Congress passed the McCain and Graham amendments by overwhelming margins to ban on all “cruel, inhuman and degrading” treatment and give Guantanamo inmates access to courts.
Given this history, it’s imperative that the president now work with Congress to put his National Security Agency wiretapping program on solid legal footing. Conducting surveillance of Americans in America without court warrants and without Congressional oversight clearly violates a law passed by Congress, the Foreign Intelligence Surveillance Act (FISA).
The president’s claim of “inherent” power to conduct this surveillance is highly strained, given that Congress expressly limited the ability of the president to conduct warrantless surveillance for 15 days after the declaration of war. It’s now been 1,500 days since Congress authorized the war against al Qaeda.
What the administration misses is that a legal framework for detentions, interrogations and domestic surveillance will help us succeed, not limit our options.
Clear laws give our intelligence professionals in the field the guidance to do their job effectively without feeling risk-averse.
Clear laws give the American people confidence that our efforts are not deviating from time-tested Constitutional principles.
And clear laws provide us the moral authority around the world to make the case for the values we cherish — democracy, freedom and the rule of law. During a recent trip to the Middle East, a senior U.S. diplomat told me that not a day goes by when the issue of Guantanamo does not appear in the local Arabic newspaper.
Our ideals are our strategic weapon. The battle against radical Islamists will be won not by military power alone but by the power of our ideals. Abandoning the core values that have served our country for more than two centuries would be to admit that we have indeed been terrorized.
Rep. Jane Harman, D-Venice (Los Angeles County), is the ranking member on the House Permanent Select Committee on Intelligence.
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