Changes
to U.S. Policy Relating to Counterterror Measures and Their Impact on
America, Post 9/11 to Present
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.
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.
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.
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)
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).
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).
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.
Project
BioShield Act of 2004
Detainee
Treatment Act of 2005
Military
Commissions Act of 2006
Protect
America Act of 2007
FISA
Amendments Act of 2008
Military
Commissions Act of 2009
PATRIOT
Sunsets Extension Act of 2011
National
Defense Authorization Act for Fiscal Year 2012
Executive
Actions
Executive
Order 13355
Executive
Order 13470
Executive
Order 13581
Executive
Order 13584
President's
Surveillance Program
National
Response Plan: December 2004
Court Cases
Rasul
v. Bush 2004
Hamdan
v. Rumsfeld, 2006
United
States v. Mahenna, 2011
Hedges
v. Obama, 2012
Four Principals
of Counterterror Policy
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).
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).
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).
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).
Impact on
American Liberty
Laws
A listing of laws,
executive actions, and court cases involving those laws and actions
can be found in Sections II-IV.
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).
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).
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).
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).
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.
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.
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