Changes to U.S. Policy Relating to Counterterror Measures and Their Impact on America, Post 9/11 to Present

Changes to U.S. Policy Relating to Counterterror Measures and Their Impact on America, Post 9/11 to Present

1. Introduction

After the terrorist attacks on America on September 11, 2001, the American people have elected different sets of politicians with differing views of terrorism and how (or even whether) to fight it. As a result of these political shifts, several legislative acts have been written into law. These laws determining how America deals with the terrorist threat directly impact the four principals of our counterterror policy. The laws have sometimes been contradictory to previous law, and many of these laws directly affect the liberty of Americans. This report will summarize the most relevant of these laws, Executive Orders enacted by our Presidents, court cases involving the laws, how the laws affect counterterrorism policies, and how Americans are affected in their Constitutional freedoms.

2. Laws

Beyond political consideration, the American legal system depends on consensus between the three branches of government. “The Supreme Court gives some indication that it is willing to lessen its role in what amounts to foreign policy and war, provided the two political branches come together to give the democratic imprimatur of legislation to counterterrorism policy and to the inevitable trade-offs between national security and civil liberties” (Anderson, 2006, p. 5) The immediate laws passed following the attack will be summarized, as they provide a framework on which subsequent laws were written. Other laws will be cited for reference.

1. USA PATRIOT Act of 2001

The PATRIOT Act amends several previously existing laws of the United States as well as establishing new law in several areas. Although a concise summary is hard to provide, as “the Patriot Act is very detailed and sometimes difficult to assess” (The Heritage Foundation, 2004, p.7), the Heritage Foundation contends that the base purpose of the act is removing barriers to intelligence gathering and collation; “the Patriot Act changes adopt as a general principle the rule that any information lawfully gathered during a foreign or domestic counterintelligence investigation or lawfully gathered during a domestic law enforcement investigation should be capable of being shared with other federal agencies” (2004, p.30). The PATRIOT Act requires periodic re-authorization by Congress.

2. Authorization for Use of Military Force (2001)

The AUMF of 2001 provided for the President to determine whether military force was to be used against any agency (individual or organized) involved in the September 11 attacks; “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” (Authorization for use of military force, 2001, p.1)

3. Homeland Security Act of 2002

The Homeland Security Act (HSA) established the Department of Homeland Security (DHS), reorganized the chain of command within the the agencies of the American security community, and provided a foundation for planning of emergency and national security planning. The DHS has three primary missions; to “prevent terrorist attacks within the United States”, to “reduce the vulnerability of the United States to terrorism”, and to “minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States” (Department of Homeland Security, 2012, para. 2).

4. Intelligence Reform and Terrorism Prevention Act of 2004

The Intelligence Reform and Terrorism Prevention Act of 2004 “defines national intelligence to include information gathered in the U.S. or abroad that pertains to more than one agency and involves threats to the U.S”, requires “the President to establish an Information Sharing Environment (ISE) to facilitate the sharing of terrorism information” and establishes “a Privacy and Civil Liberties Oversight Board within the Executive Office of the President that would ensure that privacy and civil liberties concerns are appropriately considered in the implementation of laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism” (Globalsecurity.org, 2004, para. 25, 26, 29).

5. Additional Laws For Reference

These are modifications of the initial laws ( which modify previous laws in their own existence) or which touch upon areas which the “original” post-9/11 laws did not cover, such as bio-terrorism and cyberterrorism. Some are re-authorization acts or legislative responses to court challenges.

1. Project BioShield Act of 2004
2. Detainee Treatment Act of 2005
3. Military Commissions Act of 2006
4. Protect America Act of 2007
5. FISA Amendments Act of 2008
6. Military Commissions Act of 2009
7. PATRIOT Sunsets Extension Act of 2011
8. National Defense Authorization Act for Fiscal Year 2012

3. Executive Actions
   1. Executive Order 13355
   2. Executive Order 13470
   3. Executive Order 13581
   4. Executive Order 13584
   5. President's Surveillance Program
   6. National Response Plan: December 2004

4. Court Cases
   1. Rasul v. Bush 2004
   2. Hamdan v. Rumsfeld, 2006
   3. United States v. Mahenna, 2011
   4. Hedges v. Obama, 2012

5. Four Principals of Counterterror Policy
   1. The government makes no concessions to or agreements with terrorists

In accordance with the notion that American counterterror policy changes depending on the politicians making it, we may look at two extremes. “In 2003, for example, US President George W. Bush (2003) declared: ‘You’ve got to be strong, not weak. The only way to deal

with these people is to bring them to justice. You can’t talk to them. You can’t negotiate with them’”(Toros, 2008, p.407). In contrast, the Obama administration traded five known terrorists for a soldier that the Army had declared a deserter, a trade that the GAO defined as illegal. “ 'In our view, the meaning of the [law] is clear and unambiguous,' the GAO wrote to nine Republican senators who requested the legal opinion” (Shultz, 2014, para. 4).

2. Terrorists must be brought to justice for their crimes

Bush may have called for “justice” in dealing with terrorists, but the American mode of attaining justice has wavered from one method to another. “The United States since 9/11 has approached terror for the most part as a blend between a war-fighting approach (GWOT) as they would a war against a nation state, including the use of military trials for prosecution, and a law enforcement approach (Boston Marathon Bombing)”(Clarke, 2013, p. 57) . In either a law enforcement or a war fighting capacity, the nation's ability to gather effective intelligence becomes a priority. McCarthy suggests that the issues with American intelligence, especially regarding terrorism suffered from a “single”, “institutional” “root cause”. (2004, pp.11-12). The law enforcement mode is a Constitutional necessity when dealing with United States citizens, but may not be the most effective in dealing with terrorism. “Because the FBI was and still is a law enforcement organization, its agents are trained and acculturated, rewarded and promoted within an institutional culture whose primary purpose is to catch and prosecute criminals” (Treverton, 2003, p. 129).

3. States that sponsor terrorists and terrorism must be isolated and pressured so as to force a change of behavior

Again, we have seen the transition in policy from an aggressive stance towards terror supporting states (toppling Afghanistan and Iraq in 2002 and 2004) to full withdrawal; a withdrawal that backfired as we were required to address a threat the Obama administration minimized as “junior varsity” (Mazzetti & Cooper, 2014, para. 1).

4. The counterterrorism capabilities of countries allied with the U.S. and those that require assistance in fighting terrorism, must be bolstered

Terrorism became a major consideration in American foreign policy after the 9/11 attacks . “The resultant declaration of a War on Terror (WOT) by the United States and its allies has also had global ramifications” states Aning, in an examination of “the multiple linkages and connections between development aid, security, and the WOT” (2010, pp. 7,8). Aning concludes that “that aid has become highly securitised and politicised as a weapon for the realisation of the goals of

that war” (2010, p. 23).

6. Impact on American Liberty
   1. Laws

A listing of laws, executive actions, and court cases involving those laws and actions can be found in Sections II-IV.

2. Security at Airports

Because the 9/11 attacks were delivered via a method of hijacked airliner, airline security became a focus of public attention in discussion regarding the War on Terror. Indeed, a government agency, the Transportation Security Administration was created by the Homeland Security Act with a major purpose of securing the nation's airports. However, Goldberg contends that the TSA is “an egregious waste of tax dollars” and intended as a public show of security as opposed to a actual attempt to secure the airways. (2008, para. 1).

3. Security at Public Events

Much of the security at public events is handled by the private entities that host the events. Very often, local law enforcement aids in this regard either as a public order issue or as paid security for such events. Even so, those that handle security for such events, whether as a private entity or as a law enforcement agency, realize the danger that such events present as a “soft” target for terrorists. “Since 9/11, America has become more aware of the dangers surrounding the country enabling security to keep civilians safer with out altering their day-to-day lives” (buchholtzsidoramericanstudies, 2015, para. 3).

4. Personal Freedoms

There are disparate views on the overall effect that these laws have had on American liberties. Breinholt asserts that “People who are alarmed by such things as the PATRIOT Act should acknowledge that American courts, which operate on the basis of historical precedent,

remain available and are willing, when necessary, to redraw the lines between collective security and personal liberty” (Breinholt, 2004, p.141) On the other side of the issue, the ACLU contends that “expanded government authority to pry into the private lives of people whether or not there is any evidence of wrongdoing” (Clarke, 2013, p. 32). An issue with quantifying possible damages to liberty is the extensive scope of these changes. “These changes represent a sector-by-sector reduction in privacy protections and expansion of government authority. Because these occur on a sector-by-sector basis, their privacy impact is fragmented and disjointed —as many have argued the laws themselves are” (Regan, 2004, p. 483).

5. Surveillance

A constant theme in the history of American domestic security has been the balance between civil liberty and the government's “need” to snoop into personal affairs in the name of national security. The Heritage Foundation argues that “one must understand the general structure of laws governing when law enforcement or intelligence agents may secure authorization to conduct electronic surveillance relating to suspected foreign intelligence or terrorism activity”, and that by understanding “Title III of the Omnibus Crime Control Act” and “FISA (the statute governing intelligence and terrorism surveillance)”, one would understand that the “FISA warrant structure is 'a reasonable

response' based on a balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights of citizens.” (2004, p.32).

6. Use of Force

Although the historical standard for the legal use of American military force has been a declaration of war by the President, and approved by Congress, there has been no such declaration since WWII. Presidents have unilaterally used their prerogative as Commander in Chief to take short term military actions within the bounds of the War Powers Resolution, and have gone to Congress for approval for longer term military commitments. “In the modern era authorizations have sometimes been quite broad and some have, arguably, been equivalent in scope to a declaration of war”(Elsea & Weed, 2014, p.23). The 2001 Authorization for Use of Military Force has been the legal justification for much of the use of force in the War on Terror.

7. Conclusion

Because the American form of government is subject to short term political shifts, “Homeland security is an ever evolving study of history, emergency management,

technology”(Penn, 2007, p.87). However, the balance between national security and personal liberty remains as a central issue in this study.

References

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Aning, K. (2010). Security, the War on Terror, and official development assistance. Critical Studies on Terrorism, 3(1), 7. doi:10.1080/17539151003594178

Authorization for use of military force. Public Law 107–40. 115 Stat. 224.

Breinholt, J. (2004). How about a little perspective: The USA PATRIOT Act and the uses and abuses of history. Texas Review of Law & Politics, 9(1), 17–61. Retrieved September 10, 2014 from http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=16272356&site=ehost-live&scope=site

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Does security prevent terrorist attacks at public events? Retrieved February 15, 2015 from http://buchholtzsidoramericanstudies.wikispaces.com/security+at+public+events+9-11

Clarke, D. A. (2013, September). Making U.S. security and privacy rights compatible (Thesis). Monterey California. Naval Postgraduate School. Retrieved October 17, 2014 from https://calhoun.nps.edu/handle/10945/37603

Department of Homeland Security. (2012). Homeland Security Act of 2002. Retrieved February 14, 2015 from http://www.dhs.gov/homeland-security-act-2002

Elsea, J., & Weed, M. (2014). Declarations of war and authorizations for the use of military force: Historical background and legal implications. Congressional Research Service. Retrieved February 15, 2015 from https://www.fas.org/sgp/crs/natsec/RL31133.pdf

Globalsecurity.org. (2004). Summary of Intelligence Reform and Terrorism Prevention Act of 2004. Retrieved February 14, 2015 from http://www.globalsecurity.org/intell/library/congress/2004_rpt/s2845summary.htm

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Homeland Security Act of 2002. Public Law 107-296. 116 STAT. 2135

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Mazzetti, M., & Cooper, H. (2014, Aug 23). U.S. isn't sure just how much to fear ISIS. New York Times Retrieved Retrieved February 15, 2015 from http://search.proquest.com/docview/1555355826?accountid=87314

McCarthy, A. C. (2004). The intelligence mess: How it happened, what to do about it. Commentary, 117(4), 11–20. Retrieved October 9, 2014 from http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=12656835&site=ehost-live&scope=site

Penn, E. B. (2007). Introduction: Homeland security and criminal justice - Five years after 9/11. Criminal Justice Studies, 20(2), 81–89. doi:10.1080/14786010701396814

Project BioShield Act of 2004. PUBLIC LAW 108–276. 118 STAT. 835

Regan, P. M. (2004). Old issues, new context: Privacy, information collection, and homeland security. Government Information Quarterly, 21(4), 481–497. doi:10.1016/j.giq.2004.08.003

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Schultz, M. (2014, August 22). GAO: Bergdahl swap was illegal. New York Post. Retrieved February 14, 2015 from http://nypost.com/2014/08/22/gao-bergdahl-swap-was-illegal/

Toros, H. (2008). ‘We don’t negotiate with terrorists!’: Legitimacy and complexity in terrorist conflicts. Security Dialogue. vol. 39, no. 4. DOI: 10.1177/0967010608094035

Treverton, G. F. (2003). Terrorism, intelligence and law enforcement: Learning the right lessons. Intelligence & National Security, 18(4), 121–140. doi:10.1080/02684520310001688899

Uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism (USA PATRIOT Act) act of 2001. Public Law 107–56. 115 Stat.