Unfinished Business: The Trickle-Down Effects of the War on ISIS on Civil Liberties, Human Rights, and the Rule of Law

[Editors’ NoteThe following post is the third installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take a longer view each Monday through a look back at the big stories from the previous week and/or a look ahead to key developments on the horizon.]

As members of Congress left town for the mid-term election campaigns last week, they managed to leave unresolved almost every important pending national security question before them.  Issues of war, torture accountability, NSA surveillance, and even expatriation of terrorists remain to be taken up, by the lame-duck Congress after the elections, or by the next Congress altogether.  Given how dysfunctional and divided this Congress has been, maybe doing little or nothing is the best we can hope for.  But the questions are not going to go away, and require democratic reckoning. The emerging war with the Islamic State in Syria, otherwise known as ISIS or ISIL, will almost certainly color resolution of all the pending questions.   President Obama insisted, in his May 2013 speech at the National Defense University, that our democracy demands an end to perpetual war. But he has now, it seems, bequeathed to us a new perpetual war.  And as with the war with Al Qaeda, there is a real risk that we will inappropriately discount rule of law, civil liberties, and human rights concerns.

The one thing in the national security realm that Congress did actually manage to accomplish before it left town was a temporary authorization for the President to train and assist “appropriately vetted” Syrian rebels as part of his strategy to defeat ISIS.   As Eric Messinger’s post last week explained, this temporary stopgap measure left for another day the larger question of whether to authorize military strikes in Syria, much less whether Congress approves of the President’s long-term plan to “degrade and destroy” ISIS.  Indeed, the authorization for assistance, contained in an annual appropriations bill, specifically denies that it constitutes “authorization for the introduction of United States Armed Forces into hostilities or into situations where hostilities are clearly indicated by the circumstances.”

Much of the discussion on Just Security last week, as in the foreign policy world more generally, concerned the Obama administration’s assertions that it already has authority to conduct this new war – either because Congress in 2001 authorized military force against those who attacked us on 9/11, or because Congress in 2002 authorized military force against Iraq.  As Ryan Goodman pointed out, the 2002 authorization was to fight against Iraq, not ISIS, and President Obama long ago declared the war with Iraq over.  Reliance on the 2001 authorization is just as tenuous.  It turns on a claim that ISIS is Al Qaeda, because even though it has very publicly split from Al Qaeda, and even though it is fighting against other Al Qaeda forces, it claims to be continuing the legacy of Osama bin Laden.

Both claims are disingenuous in the extreme – this is a new war, not the continuation of an ongoing or renewal of an old one.  It requires Congressional authorization.  Marty Lederman has made a valuable point that the President is at least not relying on Article II powers, as his predecessor might have, but is instead pressing a statutory argument in the face of a dysfunctional Congress.  But Ryan Goodman is certainly right that “at some point a wholly unconvincing reading of existing legal authorities approximates the same thing as saying the foundational legal rules do not constrain the President of the United State in using military force.” The war against ISIS continues to require Congressional authorization, and the temporary funding of training to Syrian rebels doesn’t do it.

Other major unfinished business includes NSA reform.  There seems to be bipartisan consensus that reform is required, something of a miracle in a world in which, if the Democrats were to propose that night follows day, John Boehner could be relied upon to vigorously object that, in point of fact, day follows night.  But there is disagreement on how much reform is needed.  Thus, Congress left town without enacting the USA Freedom Act, which would bring an end to the NSA’s bulk collection of Americans’ phone metadata, create a panel of independent lawyers to participate as amici curiae in certain proceedings of the secret Foreign Intelligence Surveillance Court, and increase transparency with respect to the exercise of NSA programs.  That act passed the House in a weakened form, and has been strengthened by Senator Leahy, but has not yet gone to the Senate floor.  That bill, moreover, would do nothing to address the far more extensive NSA project of intercepting billions of foreign nationals’ communications, even where those communications are with US citizens.   While the momentum for reform has been strong since Edward Snowden’s initial revelations, it remains to be seen whether our appetite for reining in the NSA will survive the initiation of another war.

In a welcome moment of courage, Senator Mazie Hirono of Hawaii stood up to Senator Ted Cruz of Texas last week, rejecting his request for unanimous consent to pass his Expatriate Terrorists Act, an entirely symbolic bill that purports to strip citizenship from those who aid terrorists, but would in fact have no such effect, as I pointed out last week here.  Citizenship is a constitutional right, the Supreme Court has long insisted, and therefore cannot be “stripped” from citizens no matter how egregious their actions. Even a conviction for treason, which can be punished by death, cannot be punished by loss of citizenship.  Senator Cruz is unlikely to give up on his effort, however, so this is not likely to be the last we hear of it.  And as the war with ISIS heats up, it’s possible that the climate will become for favorable for adopting empty symbolic unconstitutional laws, so long as they can be portrayed as “anti-terrorist.”

Finally, one of the biggest pieces of unfinished Congressional business is the impending release of a redacted version of the Senate Select Committee on Intelligence’s report on the CIA’s torture program.  The latest reports have suggested that it may come out before the end of the month, but the SSCI and the White House are apparently still fighting over the scope of redactions.  I’m not holding my breath.  But if the report comes out anytime in the next couple of weeks or even months, it will be none too soon.  President Obama famously said that we should look forward, not backward, on the matter of torture, opposing even a commission to study the torture program.  But precisely by looking back so carefully, the SSCI report should offer an important reminder of what not to do as we go forward.  In the CIA interrogation program, our nation abandoned its most fundamental principles in the face of fear and war.  The SSCI’s reckoning with that dark past should prove an invaluable and timely lesson as Congress takes up its unfinished business in the heat of yet another war. 

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About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).