With combat operations set to wind down in Afghanistan in 2014, the War on Terror would appear to be at a crossroads. President Obama and several of his top level advisors and cabinet members have stated that “core al-Qaeda,” or the al-Qaeda reminiscent of the Osama bin Laden era, has been decimated and is on the run. However, splinter groups and affiliates have been on the rise and pose an “imminent threat” to United States’ interests and security. Attorney General Eric Holder stated in an interview with ABC’s Pierre Thomas, “Well, Al-Qaeda core has certainly been diminished. But as we have been saying for some time, other factions of Al-Qaeda have become stronger and now even groups that were once part of Al-Qaeda and have now split from them have become strong.”
Chief among issues regarding a redefining of the War on Terror, is a reauthorization or repeal of the 2001 Authorization for Use of Military Force (AMUF). Many lawmakers believe the AUMF is outdated and applies to a conflict and an organization that is not representative of what the United States currently faces. The AUMF has allowed President Obama and President Bush before him to expand the powers of the Executive in ways previously unimagined. In the constant tug-of-war between the Legislative and Executive branches for power and oversight, it is difficult to discern what a new AUMF may look like.
At a Senate Foreign Relations Committee hearing in May, legal representatives of the Obama administration testified that the president has constitutional Article II authority to take lethal action against those who pose an “imminent threat” against the United States and its interests absent an authorization to use force from Congress. When asked what the current AUMF allows the administration to do that Article II does not, the representatives replied that the absence of an authorization, may raise concerns regarding how to detain enemy combatants. In other words, the administration, and the Supreme Court, have asserted that the 2001 AUMF provides authority to detain enemy combatants at Guantanamo Bay. Without such an authorization, it is unclear what would happen to that authority.
What also needs to be clarified going forward in the War on Terror is who the United States is in an armed conflict with. The 2001 AUMF only authorizes force against, “those nations, organizations, or persons he [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Given the seeming broad tailoring of the authorization at the time, the authorization only covers those who carried out and planned the attacks – al-Qaeda, and those who harbored al-Qaeda – the Taliban who controlled many regions of Afghanistan. However, the Obama administration has broadened the language of the AUMF to include “associate forces,” which would include splinter groups such as al-Qaeda in the Arabian Peninsula (AQAP), al-Qaeda in the Islamic Maghreb (AQIM), Jabhat al-Nusra in Syria, and al-Shabaab in Somalia, to name a few, all who were not operational in 2001. All four of these organizations have pledged allegiance to core al-Qaeda’s leader, however, they each enjoy regional autonomy. Many believe that the 2001 AUMF does not cover the Islamic State, who has now established a self-proclaimed caliphate spreading across Syria and Iraq because they are no longer affiliated with al-Qaeda. Furthermore, many, including the Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey, have stated that the group who attacked the US Special Mission in Benghazi, Libya – Ansar al-Sharia – are also not covered under the AUMF, which creates a legal quagmire of sorts.
Aside from military and combat operations, transparency has also been a crippling element and a PR issue for the Obama administration despite the President’s proclamations to have the most transparent administration. Chief among these claims are the NSA spying practices. Setting aside the legality and constitutional issues associated with such practices, the NSA’s spying programs and similar closely held government programs pose substantial democratic questions regarding their ability to be challenged and debated publicly. Despite clear reasons that many similar programs must remain classified to protect their integrity and the intelligence edge of the US against its enemies, certain safeguards such as the state secrets privilege have been invoked in several cases shielding the government from disclosing information in public and court proceedings.
According to the Center for Constitutional Rights, the state secrets privilege is “a common law privilege that allows the head of an executive department to REFUSE [emphasis not mine] to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relation interests if disclosed.” The Center for Constitutional Rights also describes the state secrets privilege as antithetical to democracy because it “undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.” The secrecy of government programs have barred individuals from standing in court to even challenge certain issues.
Jurisprudential precedent virtually restrains the judiciary from intermediating in official government business and interfering in “political questions,” or disputes in policy either between the Executive and Legislative branches or within one branch of government that are not necessarily matters of law. A federal district judge denied a case against the government and specific government individuals challenging the “unlawful” killing of an American overseas – al-Qaeda cleric Anawar al-Awlaki. On the flip side, a federal district judge determined that the process in which the government selects individuals for the federal No-Fly List is unconstitutional signaling a possible reversal in practice. According to the American Civil Liberties Union (ACLU), who represented the petitioners, “The judge ordered the government to create a new process…calling the current process ‘wholly ineffective’ and a violation of the Fifth Amendment’s guarantee of due process.”
It has also been reported, however, that the government has rapidly expanded the terrorist watch list database recently, which was also challenged in federal court. According to reporting by the Associated Press, the lawyer for the petitioners asserted that the government is applying standards “loosely” as he stated, “There aren’t 1 million people who are known or suspected terrorists,” referring to the vast number of individuals on the government list. The government argued that the judge dismiss the case as state secrets may be exposed.
Reporting by the Washington Post, also raises concerns regarding efforts by the FBI to combat homegrown terrorism and build relationships within Muslim communities. The Post recently described a report published by Human Rights Watch and Columbia University that examined the efforts law enforcement officers employed in arresting suspected terrorists living in the United States. The Post wrote, “FBI and the Justice Department have created a climate of fear in some Muslim communities through the use of surveillance and informants.” This approach is counterintuitive to the methods the FBI and law enforcement agencies try to employ through community based counterterror measure such as the Countering Violent Extremism or CVE program. A Congressional Research Service (CRS) report placed inherent importance on community engagement CVE practices in the United States. “Community engagement is—in part—an effort to make law enforcement authority more accepted within localities,” the report stated. Furthermore, the report asserted how vital the cooperation and assistance of Muslim, Arab, and Sikh communities were in the United States to law enforcement officers after 9/11 in countering domestic terrorism. However, as the Post report described, the Human Rights Watch report “accused the government of using sting operations, which some critics described as entrapment,” indicating trust between law enforcement and local communities may be broken.
The events of September 11, 2001 changed the way in which the United States, and the world, views and combats terrorism. The Bush administration ramped up programs such as NSA spying and expanded the use of the state secrets privilege to protect their practices from disclosure and oversight. The Obama administration continued these practices and in some cases, expanded on previous models. There is a strong case to be made for the heightened security precautions and government efforts as terrorism is a real threat and organizations are using unconventional methods to attack the United States such as placing explosives in underwear to avoid detection at airports. However, these methods should not undermine democratic values. The fact that the government leaked to the media a few years ago a white paper outlining basic legal authority to kill Americans abroad who pose and imminent threat and yet put up such a stink over releasing a secret memo outlining the legal authority to kill American citizen Anwar al-Awlaki demonstrates how close to the chest the administration is holding their cards and how arbitrary their commitment to transparency is as they asserted releasing the Awlaki memo would be detrimental to national security.
It is imperative to redefine the War on Terror as to reassess who the government is targeting, how it goes about targeting them, and how counterterrorism measures affect the American people. Congress should also step up their role in this challenge and not delegate their constitutional war making power so easily to the Executive branch. Issues of standing in federal courts to challenge why an individual has been placed on a secret government watch list without their knowing and without public reasoning is a major concern. The key reason individuals lack standing to sue is because they do not or rather should not have knowledge they are on such lists and therefore cannot indicate an “injury in fact,” one of the three satisfying factors in gaining Article III standing to sue. The government must take measures to quash the sentiment that, “You can’t have your privacy violated if you don’t know your privacy is violated.” The American people do not have a right to know everything that goes on behind the scenes (I have previously argued that the NSA’s practices of bulk collection of metadata is constitutional), but the focus should be clarity and balance.