Civil Liberties and National Security: Critical Issues Still Unresolved, Argues New CFR Study

February 05, 2009

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Within his first week of taking office, President Obama took steps that signaled a break with the counterterrorism policies of the Bush administration, vowing to fight terrorism “in a manner that is consistent with our values and our ideals.” The new president signed executive orders pledging to shut Guantánamo within a year, undertake a thorough review of the Guantánamo military commissions, and prohibit harsh interrogation tactics. Despite these important steps, a Council on Foreign Relations Working Paper says critical issues remain unresolved.

Written by Daniel B. Prieto, an adjunct senior fellow for counterterrorism and national security at the Council on Foreign Relations, the paper examines the deep partisan and ideological disagreements surrounding U.S. counterterrorism policy and civil liberties and charts a course forward, arguing that “it is critical that the United States achieve a new bipartisan national consensus on how to confront and defeat the threat posed by al-Qaeda and associated groups, yet stay true to U.S. values.”

The paper, War About Terror: Civil Liberties and National Security After 9/11, finds that “counterterrorism policies are sustainable over the long term only if policymakers design them with the coequal objectives of improving national security and protecting civil liberties. Any policy or program that consistently prioritizes one objective over the other will not be durable over the long term, and will eventually fail the country on both counts.”

Prieto applauds the new direction signaled by Obama, noting that “counterterrorism policies and programs that deviate from a commitment to protecting individual liberties harm U.S. foreign policy and national security.” The paper finds that international skepticism of the United States’ moral credibility and commitment to the rule of law has hampered cooperation on counterterrorism initiatives with other nations and aided terrorist radicalization and recruitment.

The paper makes recommendations on some of the following aspects of U.S. counterterrorism policy:


  • On interrogation, “the United States should reaffirm emphatically and unequivocally its commitment to abide by the Geneva Conventions regarding detainee treatment and interrogation and to not engage in cruel, inhuman, or degrading treatment, or torture.”
  • Although Obama’s new order mandates that the CIA adhere to interrogation guidelines used by the military, a separate protocol may still be established to govern intelligence agency interrogation practices.

o “Requiring the CIA to adhere to the Army Field Manual is one way to resolve the controversy surrounding allowable CIA interrogation techniques. Another option... is for Congress to explicitly require the CIA to abide by interrogation procedures established by the president and the CIA director, within the parameters of humane treatment as required by law.” “Having Congress explicitly bind the CIA’s adherence…would give [these techniques] additional force in law and strengthen oversight.”

  • There should be a well-defined role for Congress whenever changes are made to CIA techniques.

o “The president should be required to inform and engage congressional leadership when altering CIA techniques” on a case-by-case basis to address emergency situations. “Establishing a known mechanism that makes consultation and disclosure a priority will go far to ensure that the potential use of certain coercive measures is rare and limited to truly emergency situations… and mutually agreed to by the nation’s most senior leaders.” “This would ensure accountability at the most senior levels of government and that front-line operatives were not put at undue risk of potential prosecution when they implemented approved policies and procedures.”

Detention and Trials:

  • The paper supports the closure of Guantánamo and the CIA “black site” prisons abroad, but notes that their closure will not resolve the larger policy issues that persist in the U.S. detention regime. Even after the closure of Guantánamo, the U.S. regime for detaining and trying al-Qaeda operatives will remain “a work in progress, in which critical issues remain unresolved.”
  • Congress and the president should revisit the extent and basis for executive branch action against al-Qaeda globally. The president should work with Congress to update and clarify the Authorization for Use of Military Force (AUMF) to better calibrate counterterrorism authorities with the current threat environment.
  • Obama’s order suspends the military commissions used to try prisoners in Guantánamo, but the commissions might be preserved in some form for certain dangerous detainees.

o Going forward, Congress could decide to “revise the AUMF to narrow the ability of the executive branch to deal with suspected-terrorist detainees under the laws of war, and thereby in military commissions.”

o Detainees who are either U.S. persons or captured within the United States should be subject to U.S. criminal law and tried in federal courts.

o For foreign detainees, if the United States abandons military commissions altogether, future detainees could be “tried in their home countries or in countries of their capture,” U.S. courts martial, U.S. federal criminal courts, or—if the Congress and the president decided to create them—new national security courts.

  • The paper calls for an end to indefinite detention and says that “detainees should not face the prospect of erroneous or indefinite detention without a meaningful ability to challenge the basis for their detention or face trial.”

Domestic Intelligence:

  • The paper also finds that domestic intelligence efforts undertaken by the United States since 9/11—including the National Security Agency’s electronic surveillance, the Department of Defense’s force protection initiatives, national security letters, terrorist finance tracking, data mining, and watchlists—have been ad hoc and that oversight has been weak.

o “The United States lacks a coordinated and coherent approach to domestic intelligence,” says the paper. “The United States should develop a national strategy for domestic intelligence,” and President Obama should “designate the Office of the Director of National Intelligence (DNI) as the lead organization for coordinating domestic intelligence.”

o Congress should “establish a new Privacy Act to provide consistent principles and clear guidance for the government’s use of personal data provided by third parties and of computer-aided data analysis to assess the homeland security and terrorism risk posed by U.S. persons.”

o The United States should establish clear limits on the Department of Defense’s (DOD) intelligence activities within U.S. territory. “As part of the development of a national strategy for domestic intelligence, Congress and the DNI should set clear limits on what types of DOD homeland defense intelligence activities are and are not allowable within the United States.”

For full text of the Working Paper, visit:


Daniel B. Prieto is adjunct senior fellow for counterterrorism and national security at the Council on Foreign Relations. Prieto is coauthor of several books and monographs, including Global Movement Management: Strengthening Commerce, Security and Resiliency in Today’s Networked World and Neglected Defense: Mobilizing the Private Sector to Support Homeland Security. He has served on the professional staff of the Homeland Security Committee in the U.S. House of Representatives. Prieto received a BA from Wesleyan University and an MA from the Johns Hopkins University School of Advanced International Studies (SAIS).

The views, judgments, and recommendations expressed in this paper are solely the author’s and do not reflect the opinions or positions of any of the organizations with which he is affiliated or any individuals he consulted for this study.

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, business 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.