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.
Each one of these “corrective” measures ought to be evaluated in its own right. It is fine to ask Congress to issue a new authorization of the use of military force overseas, but it makes no sense to go after only card-carrying members of Al Qaeda while tying our hands when it comes to other terrorist groups that are out to harm the United States. Carefully reviewing drone strikes to ensure civilians are not nearby is a sound idea though hardly a new one. And limiting the targets to only high-ranking members of Al Qaeda ignores the fact that those who brought down the World Trade Center and attacked the Pentagon were low-ranking ones.
Similarly, ensuring that no civilians are nearby so as to minimize collateral damage is morally sound and may help in curbing anti-American sentiment (though resentment towards the United States has numerous other sources). However, announcing this restraint publicly, in the name of transparency and to please critics, ensures that, from now on, Al Qaeda meetings will include at least some of the spouses of the terrorists. This is no exaggeration. There is considerable evidence that the Taliban adapts its tactics to exploit our self-imposed restrictions based upon the information it receives about the orders given to our forces. For example, when Taliban fighters learned that the United States will not fire on mosques, it used these to store ammunition and place snipers.
Any suggestion that Al Qaeda and other terrorist groups are being defeated is not in line with recent reports. Indeed, Al Qaeda membership in Yemen has quadrupled in recent years, while terrorist groups have been progressively establishing themselves in countries such as Mali. It is true that, over the last decade, attacks on U.S. soil either failed or were carried out by “lone wolves.” Yet the resulting complacency tends to lead to the kind of inattention that culminated in the FBI not sharing information with the Boston Police regarding the bombers there. Officials paid no mind to Tamerlan Tsarnaev’s two violent outbursts during sermons in mosques in Boston, wherein he decried the celebration of U.S. holidays and praise for Martin Luther King Jr.—radicalism that should serve as a strong indication of a person who should be watched. (As it turns out, closer scrutiny would have revealed that Tsarnaev studied bomb making in Al Qaeda’s online magazine, Inspire).
Eight years passed between the first attack on the World Trade Center and the second one, in which a thousand times more people were killed. Ten years of no major attacks is not a long time when it comes to campaigns against terrorists. As one terrorist put it, U.S. agencies have to be lucky all of the time while we (the terrorists) only have to get lucky once. Washington should constantly review security measures, but such a review should include a caution against the tendency to oversteer—as we appear to be doing now, this time to the left.