The Post-9/11 Civil Liberties Debate

The anniversary of the September 11 attacks is an opportunity to take stock of the controversial U.S. counterterrorism policies that ensued over the following eleven years. Some debates, such as the one over government surveillance of U.S. citizens, have quieted, says CFR’s Matthew Waxman, but other issues, such as building trust in Muslim-American communities, remain thorny. With an eye toward the U.S. presidential election, Waxman says he doesn’t expect "radical changes to counterterrorism policy under a possible Romney administration," although Guantanamo might be one area where the two candidates diverge. Meanwhile, a "big looming issue," he says, is how the legal justification for the U.S. war on al-Qaeda--the 2001 Authorization for the Use of Military Force (AUMF)--will evolve as the country gets further away from the 9/11 attacks.

How has the Obama administration done in striking a balance between security and privacy over the past four years? What have been the major accomplishments and criticisms?

The most intense debates about counterterrorism and privacy since 9/11 have focused on the collection of information on citizens, such as NSA surveillance of communications and FBI investigation powers under the PATRIOT Act. Those debates haven’t gone away, with opposition coming from both the far left and the far right. But they have quieted significantly in recent years, and Congress has essentially been reauthorizing those activities with bipartisan support.

One area of continuing difficulty is rebuilding and sustaining trust among some communities, including Muslim-American communities who see themselves as inappropriately targeted for surveillance. This trust is ultimately important to effective counterterrorism programs as well as law enforcement efforts and other public policy interests.

One of President Obama’s big 2008 campaign promises was to close the prison facility in Guantanamo Bay, but this has been stymied by Congress. Do you foresee any movement on this issue with a new administration and new Congress in 2013?

The Obama administration underestimated the difficulties, especially political ones, of closing Guantanamo. In some respects, that effort has moved backwards, in that although the number of detainees there has gone down, there are now more legislative restrictions on transferring detainees and more strident opposition to bringing captured terrorism suspects into the United States for prosecution.

It is extremely unlikely that a second-term Obama administration and new Congress will spend the political capital necessary to close Guantanamo. One possible scenario down the road, though, is that if the courts begin to rule against the government in its continuing efforts to hold detainees there, this could reshape the politics and force action to find alternatives.

And if Romney takes office, should we expect a tip in the balance more toward security?

Despite whatever rhetoric we hear on these issues during the campaigns, I don’t expect radical changes to counterterrorism policies under a possible Romney administration--just as we didn’t see such radical changes between where Bush left off and the Obama administration has settled.

One possible change may be with respect to bringing additional detainees to Guantanamo. Whereas Obama has closed off that option, Romney might reopen it. If so, this wouldn’t involve large numbers of detainees, but would mean further institutionalizing Guantanamo as a long-term policy rather than framing it as a legacy problem.

One issue the next administration will need to deal with is cybersecurity, which has recently gotten bogged down on questions about industry regulation but also could have privacy dimensions to it. Also, while the fiercest debates about privacy and security after 9/11 have concerned the government’s collection of personal information, a future president and Congress will need to wrestle more seriously with questions about the government’s authority to compile and use information that has already been collected.

It’s now been eleven years since Congress passed the AUMF--the legal underpinning for the war on al-Qaeda and its affiliates. Is there an endpoint in sight?

This is a big looming issue without a clear answer: As terrorism threats become further and further removed from 9/11 and the al-Qaeda core that perpetrated those attacks, what will become of the legal authority for U.S. counterterrorism actions like detention and targeted killing, which are based heavily on the AUMF? Although it is very unlikely for the foreseeable future that any president would proclaim the war against al-Qaeda and its affiliates to be over, the drawdown of U.S. forces in Afghanistan and the further splintering of al-Qaeda will exacerbate doubts--including by courts--about the government’s continued reliance on that statute.

If continued reliance on the AUMF becomes untenable, one option would be to rely on inherent presidential power under the Constitution to take certain counterterrorism actions in self-defense. Another would be to come up with new legislation to replace the outdated AUMF, though that will be an immensely tricky task. Because neither [former President George W. Bush] nor Obama and the recent Congresses have put a more stable, long-term legal framework in place, such decisions or other options will await future crises and will depend on how the terrorism threat evolves.

Obviously, human rights groups have been highly critical of U.S. targeted killing policy in the past. Do you see this debate playing out at the UN General Assembly in the coming days, where a high-level session on strengthening the rule of law is to be held?

The Obama administration has taken some important steps toward explaining the legal and ethical boundaries of U.S. targeted killing policy, which has scored many major counter-terrorism successes. It remains a source of intense controversy around the world, though, and this controversy will continue for a long time to come. No president will give up this tool, but critics will continue to view it as lawless and counterproductive.

The United States government will never win over global public opinion on this issue, but it should continue to focus on articulating the legal and ethical principles that govern its targeting practices and on working with its allies and partners to ensure that its targeting efforts are integrated within a broader strategy.