The Danger of Overcorrecting on Terror

In a speech last week at the National Defense University, President Obama made clear that he is moving to the left.

In a speech last week at the National Defense University, President Obama made clear that he is moving to the left. This will mean more transparency and Congressional oversight of his high flying drone program, new ways to close Gitmo, and cutting the list of terrorist groups that may be hit. Last week, he promoted a shield for journalists who publish state secrets—a shield against the kind of government inquiry that his attorney general just carried out in collecting the phone records of the Associated Press. And Obama has already vastly reduced the number of drone hits.

The president is on his way to overcorrect previous over-corrections—a mouthful that requires a brief sociological detour.

When it comes to matters of national security and public safety, the country is driven like a car with a very loose steering wheel. It first veers to one side, and just when it is about to fall into a ditch (or perhaps after it has already landed in one), the powers that be jerk the wheel in the opposite direction, often bringing the car threateningly close to the ditch on the other side.

Thus, in the mid-1970s the Church and Pike Committees revealed abuses by the CIA, FBI and NSA, including “domestic spying on Americans, harassment and disruption of targeted individuals and groups, assassination plots targeting foreign leaders, infiltration and manipulation of media and business.” As a result, Congress created in 1978 the Foreign Intelligence Surveillance Court, which greatly limited the surveillance of U.S. citizens.

After 9/11, bipartisan reports concluded that the post-Church and Pike reforms had gone too far by blocking the type of interagency intelligence sharing that could have forestalled the terrorist attacks. To compensate for this deficiency, the Patriot Act was enacted in a great rush—an act many fear went overboard in extending the permitted surveillance of Americans, including at places of worship and at political meetings. The act also extended the authority of the FBI to issue “national security” letters that not only allow FBI agents to obtain phone, electronic, and financial data without judge or grand jury approval, but also come with nondisclosure orders that bar the involved parties from acknowledging the investigation.

Since then, the Patriot Act itself has been recalibrated, to rein in some of these excesses. For example, Congress has revised the original law to allow challenges to the nondisclosure rule while also adding judicial oversight and exempting public libraries from having to turn over their records, among other changes.

Nowhere is oversteering and the question how far corrections should reach more visible than in the debate over drones. At first, these unmanned aviation systems were greeted with considerable enthusiasm because they allowed for the killing of Al Qaeda leaders in inaccessible places such as Waziristan without endangering U.S. Special Forces or our pressuring the reluctant Pakistanis to take them on. Moreover, the drones were held to be much more accurate than missiles and bombers, thereby causing significantly less collateral damage. President Obama thus increased their usage fivefold after taking over the program from the Bush administration.

But in recent months, under a barrage of criticism that the employment of drones amounts to “extrajudicial killing” and kills primarily low-ranking terrorists and, above all, many innocent civilians, the program was scaled back. There have been few drones strikes this year, and a court ruled recently that the CIA must reveal information it had on the use of drones. Congress is now demanding to be consulted before drone strikes take place, and President Obama just promised to employ them much more sparingly.

There is also the question of how to balance national security efforts with freedom of the press—another area in which we tend to oversteer. Other democracies deal with such leaks via the enforcement of state secrets acts that ban not merely state officials from disclosing secrets but also the media from publishing them, if they somehow get hold of such sensitive information. As I see it, calling on Congress to adopt such a law of is too big of a leap, even if the press was afforded legal protection in cases where it could show that the government wanted the leaked information kept secret not for security reasons but to avoid embarrassment. Although the government cannot prevent the publication of the information (it would constitute a major infringement of the First Amendment), it is entitled to find out who leaked it in violation of the law. Civil libertarians claim that such a policy would "chill" future sources from disclosing secret information to the media. But such cold water is exactly what is needed when the information being leaked includes legitimate secrets pertaining to matters of national security, such as the presence of embedded agents in Al Qaeda or the names of CIA agents in the field.