Post-9/11 Changes By the U.S. Government
Has the government's response to 9/11 compromised civil rights in the name of national security?
by Beth Rowen
- USA Patriot Act and Domestic Spying | Department of Homeland Security | Military Tribunals and Guantánamo | Prisoner Abuse | Go It Alone Defense Doctrine | September 11 Commission
In the immediate aftermath of the September 11, 2001, terrorist attacks that destroyed America's sense of security and invincibility, the government under President George W. Bush launched the Global War on Terrorism-which has become the longest period of continuous war in U.S. history-and enacted a series of laws and executive orders that have affected our everyday lives. These steps were taken to prevent another attack on U.S. soil and restore a feeling of safety to a nation shattered by tragedy.
However, in executing these laws, the Bush and Obama administrations have come under fire for compromising civil rights and due process in the name of national security. Indeed, many people have asked if the counterterrorism measures have made us safer or have ushered in unwanted consequences: emboldening and inciting our stateless enemies, thus encouraging the spread of al-Qaeda, and skewing the system of checks and balances that is the foundation of U.S. democracy through the overreach of presidential authority. Here is a look at major legislation passed since the attacks and the effects of the laws.
USA Patriot Act and Domestic Spying
In October 2001, Congress?just one vote short of unanimous bipartisan support?passed the USA Patriot Act. The measure gave law enforcement officials sweeping new powers to conduct searches without warrants, monitor financial transactions and eavesdrop, and detain and deport, in secret, individuals suspected of committing terrorist acts.
The law has been a source of controversy since it was enacted. Civil libertarians criticized the law, saying it would result in overzealous use of wiretaps on individuals and businesses and less judicial scrutiny of the process, as well as unjustified detention of immigrants. In fact, under the law, about 1,200 people were detained for months without access to lawyers or the release of their names. In August 2002, a U.S. Court of Appeals ruled these secret detentions unconstitutional: "The executive branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors."
In late December 2005, the New York Times disclosed that in 2002 President Bush had secretly authorized the National Security Agency (NSA) to wiretap domestic phone calls and emails without obtaining legally required warrants. Although the 1978 Foreign Intelligence Surveillance Act (FISA) already permitted the administration to wiretap on an emergency basis and apply for warrants retroactively, the administration maintained that FISA was too cumbersome when urgent issues of national security were at stake. Attorney General Alberto Gonzales offered two justifications for the legality of the domestic spying program, asserting that the president had the "inherent authority under the Constitution, as commander in chief, to engage in this kind of activity" and that Congress, "when it authorize[d] the president to use all necessary and appropriate force" against al-Qaeda in 2001, indirectly sanctioned it. Critics objected that the wiretapping infringed on civil liberties, sidestepped the legislative branch, and placed the president above the law. In August 2006, a federal judge in Detroit ruled the wiretapping program unconstitutional. However, in July 2008, Congress passed a bill overhauling the Foreign Intelligence Surveillance Act-effectively legalizing Bush's secret program. The new law gave legal immunity to the telephone companies that participated in the NSA secret wiretapping program after the Sept. 11, 2001, terrorist attacks and broadened the government's ability to eavesdrop on those in the U.S. and abroad it suspects are linked to terrorist activities.
Similarly, the USA Patriot Act, set to expire at the end of 2005, was first extended and then renewed in 2006. The Obama administration has continued to use the law and technology to eavesdrop on terror suspects and to disrupt terror networks. In fact, President Obama is pushing to expand on the law to force telecommunications companies to allow their networks to be monitored and make sure their technology does not interrupt such surveillance.
In May 2011, three provisions of the law scheduled to expire were extended: the use of "roving wiretaps" to follow individuals when they switch phone numbers or carriers; investigators may obtain court orders to search business records of an individual for "any tangible things" related to an inquiry; and officials have the authority to conduct surveillance on foreign individuals suspected of having ties to terrorist groups.
Department of Homeland Security
By far the most far-reaching and significant measure enacted after September 11 was the Department of Homeland Security Act of 2002, which established the Cabinet-level Department of Homeland Security (DHS) and created the position of Secretary of Homeland Security. Former Pennsylvania governor Tom Ridge was the first to serve in the position. He was tasked with coordinating a national strategy to safeguard the country against terrorism. The DHS united 22 agencies and 170,000 workers in the biggest government reorganization in more than 50 years. Ridge introduced the color-coded Homeland Security Advisory System scale, which ranged from low to severe risk of a terrorist attack and advised local, state, and national agencies on what measures to implement to prevent an attack. The alert system--frequently mocked as being unwieldy, confusing, and vague--was replaced in April 2011 with the National Terrorism Advisory System (NTAS), which has two levels, "elevated" and "imminent." The NTAS provides detailed information about terrorist threats and recommends security measures to the public, government agencies, airports, and other hubs.
The Department of Homeland Security issued a progress report in 2011 outlining the steps it has taken based on recommendations of the September 11 Commission to protect the country against another terrorist attack. The report noted the following accomplishments:
The report also stated what was already widely assumed: that terrorists continue to become more sophisticated and their tactics evolve as do the technology and safeguards intended to thwart them. To be effective, the nation's counterterrorism program must stay a step ahead of the potential attackers and not simply react.
In Nov. 2001, President Bush signed an order that called for foreigners charged with terrorism to be tried by military tribunals and that they be classified as illegal enemy combatants. Such tribunals permitted the admission of hearsay and evidence obtained under coercion, and allowed secret evidence that would be shown to the jury but not the defendant. In addition, the defendant could be excluded from portions of his own trial. Critics of the tribunals pointed out that this suspension of due process goes against the very principles that the U.S. claims it is defending from terrorism.
Bush's controversial decision to classify detainees in the war in Afghanistan as enemy combatants, and not as prisoners of war subject to the Geneva Conventions, meant the U.S. could employ more coercive interrogation techniques, indefinitely detain prisoners, and deny them the right to due process. White House Council Alberto Gonzales maintained that terrorism was "a new kind of war" that rendered portions of the Geneva Conventions "quaint." In June 2004, the Supreme Court rejected the Bush administration's claim that the executive branch has unreviewable authority in time of war, ruling that detainees were legally entitled to challenge their imprisonment. In another case, the Supreme Court ruled in June 2008 that prisoners at Guantnamo have a right to challenge their detention in federal court.
In June 2006, in Hamdan v. Rumsfeld the Supreme Court addressed the legality of the special military tribunals to try detainees held at Guantnamo Bay prison for war crimes. The Supreme Court ruled that the administration's failure to obtain congressional approval for the military tribunals rendered them unconstitutional. Moreover, the Court stated, the tribunals violated both the Uniform Code of Military Justice and the Geneva Conventions. It was the most significant ruling regarding the limitations of presidential powers since Watergate. As designed, the administration's plan for tribunals omitted many of the safeguards of a military trial. A major setback to the president's assertion of wide-ranging wartime powers, the ruling left President Bush with two options: adhere to the rules of existing military courts-martial or ask Congress to change the laws.
Administration-backed legislation containing essentially the same provisions struck down in Hamdan was submitted to Congress in late summer 2006. A number of moderate Republicans joined Democrats in attempting to modify the legislation, arguing that failure to abide by the Geneva Conventions would damage America's standing in the world. But in the final draft, the president achieved most of what he sought, including the ability to unilaterally reinterpret the Geneva Conventions.
On his second day in office in January 2009, President Barack Obama signed executive orders to halt military tribunals, close all secret prisons and detention camps run by the CIA-including the infamous Guantánamo Bay prison-and ban coercive interrogation methods. He, however, did not rule out the use of tribunals, saying he would review the Bush administration's policies on handling detainees. In March 2011, Obama reversed course on two fronts, allowing tribunals to move forward at Guantánamo, thereby admitting that the prison will remain open for the foreseeable future. His decision followed legislation passed in 2010 that prevents prisoners from being transferred from the prison to the U.S. for trial. As of August 2011, 47 prisoners being held at Guantánamo will remain there indefinitely because either they are considered high-risk terrorist threat, or because evidence against them was either obtained illegally or is classified.
One detainee who will face a tribunal is Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 attacks. Under pressure from officials in New York, U.S. attorney general Eric Holder abandoned plans to try him in a civilian court in New York City.
In April 2004, worldwide outrage followed the release of photos in the American media depicting the appalling physical abuse and sexual degradation of Iraqi prisoners at Abu Ghraib prison, which a U.S. military report described as acts of "purposeless sadism." A July 2004 military report identified 94 more suspected or confirmed cases of abuse of prisoners in Iraq and Afghanistan, including the deaths of at least 39 prisoners. In August, the Pentagon-sponsored Schlesinger report rejected the idea that the abuse was simply the work of a few aberrant soldiers, and asserted that there were "fundamental failures throughout all levels of command, from the soldiers on the ground to Central Command and to the Pentagon."
In 2005, Congress passed the Detainee Treatment Act that banned "cruel, inhumane, or degrading treatment" of prisoners held in U.S. custody. However, in July 2007, President Bush signed an executive order giving CIA the authority to use a number of harsh interrogation methods, which are not allowed in military interrogations but have been determined by the Justice Department to comply with the Geneva Conventions, when questioning terrorism suspects.
In September 2006, Bush announced that 14 high-level al-Qaeda prisoners had been transferred to the Guantánamo prison camp from secret CIA "black sites" around the world. It was the president's first official acknowledgement of extraordinary rendition, the practice of transferring suspected terrorists to detention centers in foreign countries where U.S. laws do not apply and detainees can be subjected to "alternative interrogation procedures," which the president has strongly defended as necessary to the thwarting of future terrorist plots. The transfer of high-level al-Qaeda operatives to Guantánamo for prosecution such as Khalid Shaikh Mohammed was part of the administration's efforts to strengthen the credibility of its detainee policies. Hunger strikes, riots, and suicide attempts by prisoners protesting their indefinite detention kept Guantánamo in the news and led to widespread criticism.
The Bush administration was rocked by scandal in December 2007, when it was revealed that in 2005 the CIA destroyed videotapes of the 2002 interrogation of two al-Qaeda suspects, Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes, which included hundreds of hours of questioning, reportedly showed agency operatives using severe interrogation techniques, including waterboarding, which simulates drowning. Also in December, the Senate and House intelligence committees voted to outlaw all methods of interrogation that are banned in the Army Field Manual, which prohibits waterboarding.
Go It Alone Defense Doctrine
The new U.S. defense doctrine, announced by President Bush in a June 2002 speech at West Point and codified in The National Security Strategy of the United States, expanded the justifications for war: "Legal scholarsâ?¦often conditioned the legitimacy of preemption on the existence of an imminent threat-most often a visible mobilization of armies." But a non-conventional war against terrorism, the document argued, requires "taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack." Many expressed alarm at this aggressive shift in U.S. policy-an "international hunting license" is how one critic put it. The doctrine was strongly criticized by the UN and a number of world leaders, particularly France, Germany, and Russia, who were apprehensive about what they saw as the U.S.'s circumvention of international law and its disregard for international consensus. The doctrine declared that the country "will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively againstâ?¦terrorists."
In February 2011, the Obama administration revised the country's military strategy, expanding the focus to other areas of potential threats, including Asia and other parts of the Middle East. The National Military Strategy of the United States of America of 2011recognizes a shift in geopolitical dynamics, toward coalitions built on shared ideology between and away from cold war alliances:
"The United States remains the world's preeminent power, even as a growing number of state and non-state actors exhibit consequential influence. This changing distribution of power indicates evolution to a "multi-nodal" world characterized more by shifting, interest-driven coalitions based on diplomatic, military, and economic power, than by rigid security competition between opposing blocs. There are global and regional powers exhibiting nationalism and assertiveness that tests our partners' resilience and U.S. leadership."
The document outlines four goals: countering violent extremism, deterring and defeating aggression, strengthening international and regional security, and shaping the future military. Rather than acting alone and preemptively in the interest of self-defense, the new strategy states that the U.S. will "serve in an enabling capacity to help other nations achieve security goals that can advance common interests." In doing so, the U.S. will be act as a "convener."
"As a convener, our relationships, values, and military capabilities provide us, often uniquely, with the ability to bring others together to help deepen security ties between them and cooperatively address common security challenges."
Obama supporters describe this policy as "leading from behind;" critics say that given the current global climate, the U.S. cannot afford passivity in our foreign affairs. The U.S. must stay one step ahead, protecting our gates, or else our enemies will see only a welcome mat.
September 11 Commission Releases Its Report
In July 2004, the Senate Intelligence Committee released a unanimous, bipartisan "Report on Pre-War Intelligence on Iraq," evaluating the intelligence assessments that formed the basis for the Bush administration's justifications for the war. It strongly criticized the CIA and other intelligence agencies, concluding that "most of the major key judgments" on Iraq's weapons of mass destruction were either "overstated, or were not supported by, the underlying intelligence report." It disputed the CIA's assertions that Iraq was reconstituting its nuclear, chemical, and biological weapons programs. It also concluded that there were "no operational links" between al-Qaeda and Saddam Hussein, another casus belli put forth by the Bush administration. In October, the Iraq Survey Group's final report confirmed that Iraq did not have weapons of mass destruction nor a formal plan to revive its WMD program. In response, President Bush began emphasizing that the removal of Iraq's repressive dictatorship was grounds enough for waging war, and contended that "America is safer today with Saddam Hussein in prison.
Has the government's actions made us safer? Whether or not these measures have diminished the risk of another terrorist attack is the subject of much debate and soul searching. Either way, in the ten years since the worst terrorist attack on U.S. soil, Americans have certainly become more cautious and inured to the inconveniences that result from such precautions.
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