11/13/15

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

My first interview for a job as a law professor was in October 2004, in the midst of the presidential election contest between President Bush and then-Senator John Kerry. One of the questions I received was something to the effect of “what will I write about once Kerry wins?” In other words, was I worried that national security law, or at least the issues on which I was then focusing, would fade from the forefront the further away we got from 9/11 — and from the administration of President George W. Bush? As I answered at the time, I wasn’t especially optimistic on either the electoral or substantive front. To be sure, I thought, and still think, that some initiatives (such as the abusive treatment of detainees, the military detentions at Guantánamo Bay and elsewhere, and the military commissions), could very well be legacy problems, as they have increasingly become. But the threat that transnational terrorism (in whatever form) posed to civilians the world over seemed to only be on the rise — a point soon driven home by the 7/7 attacks in London and Madrid. For some reason, that’s the memory that came back to me over the weekend, as I tried to figure out why Thursday’s attacks in Beirut and Friday’s attacks in Paris (and, apparently, thwarted attacks in Istanbul) seemed so deeply jarring. At bottom, they are reminders of the extent to which the post-September 11 world in which we live is a permanent, and not temporary, feature of our lives. Woodrow Wilson once tellingly observed that “We are citizens of the world. The tragedy of our times is that we do not know this.” The reaction to last week’s atrocities suggests that we may finally be learning that lesson, but only at an unbearably heartrending cost.

Eventually, though, the immediate shock of the attacks will give way to what these acts of barbarity mean for US national security law and policy going forward. Below the fold, I attempt to identify what I see as the three most likely areas of direct impact — one in which they might helpfully move the debate forward, and two in which they may only set things back. 

I.  The ISIL AUMF Debate

Readers surely don’t need reminders of the now-15-month-old debate over a new use-of-force authorization (along the lines of the post-9/11 “AUMF”) for ISIL. Long before last week, the combination of Congress’s hypocrisy (railing against the incremental but steady growth in the scale and scope of attacks against ISIL while not doing anything to circumscribe it), and the President’s willingness to rest a widening campaign on a dubious statutory claim (that ISIL is covered by the post-9/11 AUMF), had produced an impasse at the very real expense of both democratic accountability and the separation of powers. Even before the first word came in concerning the Paris attacks, US forces were apparently conducting a strike against a senior ISIL leader in Libya, the first acknowledged use of such force against ISIL in that country — only further underscoring, as Bobby Chesney wrote over the weekend, that “the use of force against ISIL in locations outside of Syria and Iraq eventually will engender the same sorts of legal friction that strikes on al Qaeda targets in Yemen, Somalia, and Pakistan have generated.” Folks of all stripes had long been urging the political branches to adopt some kind of solution before external factors forced the US government’s hand. Alas, the moment for such sober deliberation may now have passed.

But if the Paris attacks provoke (or the Libya operation portends) an uptick in the scale and scope of the military force that the United States brings to bear against ISIL, perhaps that uptick might finally shame the political branches into reaching some kind of accommodation (we’ve certainly offered our own suggestions). It’s too early to speculate as to what such a statute might look like, but maybe those members of Congress who were so opposed to “boots on the ground” will soften on that issue, and perhaps other members who were opposed to some of the proposed procedural and substantive limits on the use of force (to avoid Vietnam-like mission creep) will drop those objections lest they stand in the way of an emerging imperative. I’m not optimistic, but in the worst-case scenario, if there’s no movement in Congress, at least we won’t be any worse off; as Jack Goldsmith suggested over the weekend, the damage to the separation of war powers over the past 15 months has already been done…

II.  Surveillance Reform

There’s very little question that the most immediate focus of post-Paris discussions of national security law and policy reform is going to be surveillance, with a special focus on encryption and backdoors, given the early (albeit vague) reports that the attackers may have communicated through encrypted media. (Most of us do, at least to some extent.) I don’t think we know nearly enough yet to assess whether anything about the Paris attacks ought to tilt the scales in the ongoing debate over encryption. But it strikes me that, however that conversation plays out, the attacks are likely to have an additional effect on surveillance policy discussions in the United States — in two years, when the FISA Amendments Act of 2008, especially section 702 (the statutory authority for both the PRISM and “upstream” collection programs) expires.

Recall that the core of section 702 is programmatic surveillance directed against non-US persons reasonably believed to be outside the United States, i.e., targets like the Paris attackers. I don’t think it’s beyond the pale to suggest that attacks like Friday’s will only dampen whatever ardor might otherwise have existed for scaling back those authorities (never mind the fact that they don’t appear to have provided actionable intelligence sufficient to help prevent Friday’s attacks). Whereas the Snowden disclosures, on their own, might have actually spurred meaningful reforms to section 702 (especially insofar as large quantities of US person information is “incidentally” collected under those programs), I fear that Paris will become a rallying cry for why we need these sweeping foreign surveillance powers — and, if anything, why they ought to be expanded.

One of the most important questions that I’ve always hoped would get asked as part of the FISA Amendments Act reauthorization debate is whether there are meaningful ways to restrict “incidental” collection under these programs without compromising their core efficacy (however that is measured), perhaps by making the judicial review of the directives (and their minimization procedures) more robust. I wouldn’t deign to suggest that I have a good answer to that question, but I increasingly fear that, in light of attacks like Friday’s, it won’t even get asked.

III.  The Refugee Crisis

The other place where I suspect we’ll see an immediate effect on US policy is with regard to the Syrian refugee crisis — a crisis caused, at least in part, by ISIL. It shouldn’t be especially surprising that at least some of the attackers saw the refugee crisis as an opportunity to cross borders, and it should be even more obvious that virtually all of the refugees themselves are doing nothing other than trying to flee the violence that has destroyed their homeland and threatened their safety. Nevertheless, as CNN noted on Saturday, several of the Republican presidential candidates criticized President Obama over the weekend for his pre-Paris proposal to admit at least 10,000 Syrian refugees to the United States, claiming that the Paris attacks demonstrate how such a move will directly threaten US national security.

Don’t get me wrong — there are certainly hard and important questions to be asked about how we can best fulfill our legal and moral obligations to international refugees while protecting our national security. But as with the surveillance point above, we’d do well to avoid making policy decisions with sweeping ramifications based upon knee-jerk reactions to moments of crisis.

IV.  Conclusion

There’s no question that, at a minimum, last week’s developments will once again trigger a nationwide (if not international) conversation over how best to protect our way of life — how to protect our streets without sacrificing that which makes our streets worth protecting. It’s hard to think of more important conversations that we, as a society, can have. But if we’ve learned nothing else from the past 14 years, hopefully we’ve learned the dangers of overreacting — and of allowing the politics of fear to get in the way of principled debate over the best (or, at a minimum, least-worst) way forward. Such debates may not lend themselves to soundbites or tweets. But one of my favorite quotes is from Judge William Cranch, then the Chief Judge of the DC District Court, writing over 200 years ago:

In times like these, when the public mind is agitated, when wars, and rumors of wars, plots, conspiracies and treasons excite alarm, it is the duty of a court to be peculiarly watchful lest the public feeling should reach the seat of justice, and thereby precedents be established which may become the ready tools of faction in times more disastrous. The worst of precedents may be established from the best of motives. We ought to be upon our guard lest our zeal for the public interest lead us to overstep the bounds of the law and the constitution; for although we may thereby bring one criminal to punishment, we may furnish the means by which a hundred innocent persons may suffer. The constitution was made for times of commotion. In the calm of peace and prosperity there is seldom great injustice. Dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, unmoved by the arm of power, undisturbed by the clamor of the multitude.

Although Judge Cranch was speaking to the duty of judges, I believe it’s the duty of all of us — those who make our laws and policies, those who enforce them, those who interpret them, and those who debate them — “calmly to poise the scales of justice.” We owe it to ourselves; we owe it to our posterity; and, most importantly, we owe it to the victims of what was not the first, and surely won’t be the last, mass terrorist attacks of our age. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).