The Democratic Party and the War on Terror

Now that the Democratic Party has taken control of Congress, will it cut back on President Bush’s aggressive war on terror strategy, and restore Americans’ civil liberties? The answer appears to be “No.”

The Democratic Party’s 6-Point Plan for 2006 lists the following items: Honest Leadership & Open Government; Real Security; Energy Independence; Economic Prosperity & Educational Excellence; A Healthcare System that Works for Everyone; and Retirement Security. Under Real Security, one finds:

Democrats are unwavering in our commitment to keep our nation safe. For Democrats, homeland security begins with hometown security. That’s why we led the fight to create the Department of Homeland Security and continue to fight to ensure that our ports, nuclear and chemical plants, and other sensitive facilities are secured against attack and support increased funding for our first responders and programs like the COPS program so we keep our communities safe. We want to close the remaining gaps in our security by enacting the 9/11 Commission recommendations.

No reference to civil liberties here, and that does not seem to be an oversight. The House has just passed H.R. 1, a bill entitled “Implementing the 9/11 Commission Recommendations Act of 2007.” This lengthy bill does all sorts of things. Title I reallocates homeland security funds to higher-risk areas and institutions. Title II provides for the improvement of communications among first responders. Title IV increases inspection of cargo containers, and Title V addresses aviation security. Other titles address information sharing, centralization of resources, and similar logistical and administrative issues. Only Title VIII specifically addresses civil liberties (sections in other titles do provide some limited civil liberties-related reporting requirements): it strengthens a civil liberties oversight board in the executive branch and enhances the powers of officers in agencies who are supposed to advise and report on civil liberties matters.

These are baby steps, unlikely to have any effect on civil liberties. Recall the concerns of civil libertarians. That the Patriot Act and related laws permit intrusive and unjustified searches. That the Authorization for Use of Military Force issued after 9/11 permits the executive branch to detain indefinitely, and without charges, anyone whom it deems an enemy combatant, anywhere in the world, including people captured on American soil. That the Military Commissions Act permits kangaroo trials of enemy combatants suspected of war crimes and strips civilian courts of their power of review. That immigration and law enforcement authorities profile, harass, and unjustifiably detain noncitizens from Muslim countries. That, on the basis of dubious or nonexistent authority, the NSA spies on Americans without obtaining warrants required by law. That, on the basis of dubious or nonexistent authority, and in violation of international law, the Bush administration mistreats suspected terrorists, ships them to foreign countries where they will be tortured, maintains secret prisons, violates bank secrecy laws and norms, and so forth. That vague anti-terrorism and material support statutes are being used against legitimate charities, and innocent people, all Muslims. None of these concerns is addressed in H.R. 1.

Various Democrats have objected to these measures in the past, of course, and some of them might press for bills addressing them in the future. Perhaps there will be hearings as well. But what seems clear is that support for civil libertarian views among Democrats is not strong enough to put them at the top of the agenda. One can go farther. Even if future bills tinker with more of the Bush administration’s war-on-terror strategy on the margins, as H.R. 1 does, the Bush administration’s strategy appears to have, in general, bipartisan support, and so probably the overall support of the American public. The rebalancing of civil liberties and security after 9/11 can no longer be considered radical, if it ever was. It is the civil libertarian view that is outside the mainstream; it is, in the context of 9/11, an increasingly fringe view, dominant only in academia and the media.

This originally appeared here; for our latest work on this topic, see here. Eric Posner & Adrian Vermeule

Comments

[Erasmussimo]

I consider this a political problem, not a legal problem. I believe that the Democrats must first establish firmly in the public mind just had badly our civil rights have actually been abused. Right now, we're dealing with abstractions that the public can't catch fire on, and in the public mind the vague abstraction of terrorism confuses the vague abstraction of civil rights. The Democrats are following the ideal strategy of starting off strongly on the security side and not making a stink about civil rights. Then they launch the Congressional investigations. Lo and behold, they start turning up specific cases of obvious abuse of the system. What, government agents were spying on little old ladies in their garden clubs?!?! Tapping the phone calls of soccer moms?!?!? Putting innocent, upstanding citizens on no-fly lists based on faulty intelligence?!?!?! Once all the dirt starts to tumble out (and we know it will), the Democrats can declare that they're shocked, SHOCKED, to see that our trustworthy government is actually abusing the broad, unlimited powers we gave it. Sadly shaking their heads, they will conclude that we need proper safeguards to protect the American people from those few bad apples (a la Abu Ghraib) who would abuse the sacred trust that we have conferred upon them.

Yep, it's a roundabout approach, but remember what they say about legislation and sausage-making.

[Frederick Hamilton]

Professor's Posner is correct that bipartisan support and public support are on the side of vigorous intelligence gathering on terrorists. Simple as that.

I find it implausible that there are ANY little ol' ladies in garden clubs, soccer moms, or upstanding U.S. citizens on no fly lists. Man, any of those and the ACLU would have had them front and center in their Detroit lawsuit.

If the civil libertarians thought their ship had just arrived with the Democrats in charge legislatively will be sadly disappointed.

We Americans who can think critically and are not paranoid have no illusions as to the threat and the need of our government to be up the arse of any terrorist jihadists anywhere in the world, including the U.S.

For the Democrats to do less would be political suicide. How would a successful attack on America look to the country 6 months following the Democrats legislative dismantling of the Patriot Act, the 9/11 recommendations, the NSA/CIA intelligence activities.

There are good reasons for the bipartisan and public support of the anti-terror measures.

If there are instances of abuse, they will surface. If they are there, they will represent mistakes of the well intended, not a determined attempt by Congress or the executive to take away yours and my civil rights. That dog doesn't hunt.

[Erasmussimo]

"If there are instances of abuse, they will surface." Indeed they will -- as a result of Congressional investigations. As one Democrat pointed out, in determining what to investigate, they are operating in a target-rich environment. There are already a great many documented cases of abuse: the American citizen who can't return home because the Feds put him on a no-fly list because of his nephew's activities; the Canadian who was mistakenly subjected to extraordinary rendition and tortured; the Portland lawyer who was mistakenly incarcerated for three weeks; the Egyptian who was abducted in Italy (the Italian authorities have, I believe, already issued arrest warrants for the American agents who committed that crime); the list is long. And these are only the ones we got lucky enough to learn about; once Congress starts investigating, I'm sure we'll find lots more dirt.

[gp]

It is likely that most Americans and legislators do approve of the Bush administration's domestic security program; the issue that divides Americans and legislators--even the Republican Party--is the government's lackluster Iraq policy.

The Bush administration recognizes this and consistently tries to tie Iraq to homeland security, as it did in 2002 when selling the war. Though Americans and officials admittedly tied the two together then, they are now separating them into two issues -- homeland security/terrorism prevention and the war in Iraq. The administration did take hits in 2006 over its domestic security measures, but Iraq was the real 800 pound gorilla in the room.

The salient issue for the administration, therefore, is not whether the media and the legal academy criticizes its domestic terrorism policies, but how it can marshall support for its Iraq policy. It has tried to do this by tying it to homeland security and the overarching war on terror. This approach has largely failed, however.

The government's inability to foster this connection--in the media, if not in truth--is bad news for it because dissent over its Iraq policy brings skepticism over its entire government program, and this brings scrutiny of its domestic terrorism measures. If it wants to curb skepticism of these measures--intelligence sharing, wiretapping--it would be best advised to get its Iraq portfolio in order.

Consider the historical record for proof. Though critics have long despised the USA PATRIOT Act, etc., it was the gross negligence at Abu Ghrabib, post-war reconstruction, and other issues in Iraq that emboldened these critics to take on domestic security measures with a fervor that did not exist there before.

[Frederick Hamilton]

Sorry Eras, the list isn't long. And the episodes you speak of have a Paul Harvey "and now the rest of the story" set of facts.

Bring on the oversight. I welcome it. Sunshine is geat. Bring on the legislation to correct this wholesale assault on our civil liberties. Methinks Posner will be correct. Strong bipartisan and public support exists for aggressive inteligence interdiction of terrorists. Actuall just been reading of the activities of Australia regarding Muslim extremists. If only we could be that aggressive.

[Frederick Hamilton]

gd,
Regardless of what is made of the Iraq war, it is seperate from the domestic approach to protecting our country from Muslin terrorist jihadists.

If it emboldens Democrats to lay waste to a strong defense of the homeland, they will do that at their political peril, I do believe.

[Phil]

With apologies for cherry-picking a quote from Prof. Posner's post, I have to object the fact that they enjoy bipartisan legislative support (or, arguably, mere forbearance) does not make recent adjustments to civil liberties less than radical.

The abrogation of habeus inherent in an asserted executive prerogative -- now legislated -- to indefinitely hold people incommunicado on the unreviewable determination that they are "enemy combatants" (and I don't see anything in the commissions act definition that restricts the application of that term to non-citizens) is radical.

I would hope that, over the not-very-long term, the American people will come to recognize this compromise as undercutting a core value of our constitutional system; that they will think it too high a price to pay for the added security it can be shown to deliver, and that their elected representatives will then have the mandate they need to take corrective action.

[Erasmussimo]

Very well, Mr. Hamilton, let's do this right and just see what the investigations turn up. Thank the voters that we at last have congresscritters who will actually do the oversight. And if nothing turns up, then we can all heave a sigh of relief and have more confidence in the integrity of the Bush Administration. And if serious crimes turn up, perhaps we shall have to consider impeachment.

[Garth]

The full impact of Bush's assault on civil liberties is not yet understood by the American population at large.

I am with Eras in that I believe that Congressional investigation will reveal just how these new "powers" have been abused.

I also believe that the erosion of civil liberties is part and parcel of a broader scheme by Cheney to accumulate more Executive Authority. Like signing statements, the full impact of Cheney's agenda has yet to be fully digested by the public.

I anticipate that as Congress discovers more and more gross abuses of power, the American Public will yet again discover why concentrating so much power in anyone's hands is a big mistake.

[Frederick Hamilton]

Sounds good. Aggressive oversight. If transgressions found of intent and application by all means impeach. With Conyers and the Democrat judiciary committee impeachment should be easy.

Concentrated powers is a canard. Powers are vested by the constitution and statute. No president can do anything without constitutional or statutory authority. There are checks on that power. Congress. The courts. This is America. Not a monarchy or dictatorship. Yeah, yeah I know, you unhinged Bush haters swear he is a dictator/monarch. Those on the fringe always resort to that. Fortunately the sane middle of America has a handle on the anti-Bush hyperbole.

[Erasmussimo]

Mr. Hamilton, will you please stop arguing against statements that you yourself concocted:

"you unhinged Bush haters swear he is a dictator/monarch."

Nobody here has stated that Mr. Bush is a dictator or monarch.

[LAK]

Frederick, a bunch of ideological whores and a fearful paranoid populace are hardly what you should hang your constitution hat on.

Are you aware that one of the primary reasons we have a constitution and a court to interpret it is to protect minority rights? Just because 9 out of 10 middle class white people don't have to be worried about having their civil liberties violated does not mean particualr policies are constitutional or good for the country. That point seems lost on you. Because 9 out of 10 people though interning japanese peoplke was a good idea, didn't make it right.

You are like the cowardly Lion, which is far more dangerous to our way of life than than any of the jihadists you so irrationally fear. My guess is McCarthy was a hero of yours?

[gp]

mr hamilton:

I do not think that we disagree. We both think that americans separate iraq from homeland security. i am arguing that bush has sought to unite the two because he is much stronger on homeland security than on homeland security issues than Iraq. My point is that the government's poor handling of Iraq will likely bring scrutiny of the rest of its policies, which has already happened.

[Frederick Hamilton]

LAK,
I've missed sparring with you. Thanks for the kudos. It is tough being an ideological whore and a wimp. Especially now that Woody Allen has stopped making movies I can relate to.

All I can say is that the courts typically keep us white whimpy whores happy and by and large most in a position of power (Dem and Repub) want to do the right thing.

On the cowardly lion thing, I think you, Chamberlain and all the rest of the appeasers are the real danger to the country. But as Posner notes, we'll see how the majority want to treat your faux threat. I suspect they will say they want to kick the living shit out of the terrorists. Just a guess. Peace Bro.

[Garth]

"On the cowardly lion thing, I think you, Chamberlain and all the rest of the appeasers are the real danger to the country."

Appeasers; ie. any one who feels that the principles of civil liberties enshrined in our consitution should not be trumped by a presidential power grab of dubious necessity and effectiveness?

Unfair, I know, but compare Frederick's statement to this one by Harry Truman in his memoirs. This comment takes place in the context of "Hysteria" in the United States;

"I feel that if our constitutional system ever fails, it will be because people got scared and turned hysterical and someone in power will demagogue them right into a police state of some kind. That's what I've always worried about. Still do." - Harry Truman

[LAK]

Frederick,

Perhaps I wasn't clear. You aren't the whore, hardly. Democrats are. And Republicans. All Politicians. They want wahatever gets them elected. That's why Feistein sponsores flag buring amendments. That's why they are all the same, crowding around the center, democrast being just slightly less disgusting and corrupt that republicans.

You certainly are a cowardly lion. A idological whore? No way. Leave that for the centrists.

[Frederick Hamilton]

Garth and LAK,
I know where you guys are coming from. Yes, loss of our inalienable rights would be a disaster. That is one reason I actually trust the right wing over the left. A right wing nut is an anarchist in a sense. In the sense that he distrusts government and will do whatever it takes to put government in its place even if it means at the end of a gun barrel.

The left wing nuts want government to do all. Intrude pervasevly. Take my liberties away under the guise of "doing good". Cries that their liberties are being taken away when in actual fact the left wing will be the first to take your property and freedom to "help others".

Nothing cowardly Lion about my approach. I want all Muslim jihadists who profess death to infidels to be watched, listened to, found, neutralized and killed. Pretty ruethless as far as I am concerned. Can a left winger pull that off? Doubtful.

We are in a fight. Call the correct response what you want. This fight is to the death. Ours or theirs. The jihadists are not rational or sane. What are you going to do? Call Ghostbusters. No you drop bunkerbusters. The only thing that will cause the jihadists to respect, decease and quit there holy war on the west is power. I firmly believe that. Who will carry that torch? Reid? Pelosi? Conyers? Agreed LAK. They are all political whores. Say what you want about Bush, but he'll keep the heat on in the face of total public disapproval if he thinks it will keep America safe. LAK you are right, the vast majority of Americans don't have a clue.

Fight the jihadists or let them have the Middle East and Israel. Screw all the Jews, right? Exterminate them, right? If we let Iran have their way, we'll see nuclear war in the Middle East. It'll make the Iraq War and the 3,000 American dead seem like a fender bender. This world is possibly more dangerous now than during the highest heights of the Cold War.

Time will tell. As for me, I want to intercept and fight the jihadists. If that makes me scared or a wimp in your eyes, so be it. My view of the appeasers is that they are the wimps and weak ones.

The wacky left wing nuts wouldn't know which end of a gun to point. The jihadists will cut their heads off in a heartbeat.

My war cry is simple: DANNY PEARL

[LAK]

Fight the Jihadist, but in a way that can win. Without violence. Violence is what created the jihadists, it sin't what is going to get rid of them. Fight them with educationa and charity and love, and a freign policy meant to spread democracy and human rights, not gurantee profist for a few of our corporations.

This is a battle of ideals, not guns. If it were a battle of guns, I'd insist we just nuke the fuckers and take over.

No, this is about spreading all that is good about western culture and freedom,a nd not imposing all that is bad - our military insustrial complex, our greed, our crass cosumerism and capitalism. It is time to share intelectual property, time to invest without expectation of monetary profit.

You and I want the same thing, you just never learned the lessons of the 4th grade bully and of violence. The bully didn't need to be responded to with violence. He was crying out for basic human recognition and love.

How you missed that important life lesson is beyond me.

[Erasmussimo]

Mr. Hamilton, your latest comments smack of hysteria. Please, calm down! This is not a fight to the death. There are a billion Muslims out there; our own intelligence services estimate that the number of actual terrorists measures in the tens of thousands. That means that, for every terrorist out to kill you, there are perhaps 50,000 who aren't. Please, get a grip on reality! There are no terrorists under your bed and none in your closet.

[Erasmussimo]

Mr. Hamilton, your latest comments smack of hysteria. Please, calm down! This is not a fight to the death. There are a billion Muslims out there; our own intelligence services estimate that the number of actual terrorists measures in the tens of thousands. That means that, for every terrorist out to kill you, there are perhaps 50,000 who aren't. Please, get a grip on reality! There are no terrorists under your bed and none in your closet.

[Garth]

Frederick,

There are no Jihadiists in Iraq. The Al-Queda movement in Iraq is a very small percentage of the population and consists mostly of Sunnis. This is why the death of Zarqawi made no impact on the level of violence. They are a very small segment of the Sunni insurgency.

The Sunni insurgency is well funded and well armed and contains many of the Iraqi army's most seasoned officers. They are patient and disciplined and understand they are in the minority. They have the support of a large population. They undoubtedly receive support from Saudi Arabia. Bush has refused to engage with or encourage engagement with these men.

The Iraqi government we are surging to prop up is predominantly Shia. Iran and Syria are Shia dominated. Saudi Arabia is Sunni and a major source of funding for Al Queda groups planning attacks against foreign targets including the US. The Saudis are our allies.

The Taliban regime, our former allies in the Global War on Drugs, were guilty of harboring Al Queda and have been driven from power. They are actively manuevering to regain their power against minimal US resistance. The Taliban's successful crackdown on opium production has ceased and accordingly opium production is in full swing and generating immense profits for Al-Queda. Bush is pulling more troops from Afhanistan in order to support his surge plan.

Just where are those darn jihadiists?

Maybe they're behind the next kicked down door?

Frederick, don't be so afraid. The jihadiists are far less likely to gitch ya than you think.

[Roach]

Democrats were right on Iraq in spite of themselves; their thorough-going pacifism and excessive regard for the rights of terrorists and the approval of other nations led them to oppose what has turned out to be an unnecessary and counter-productive war.

That said, when it comes to things like GITMO and the Patriot Act, the Democrats' fundamental spinelessness and lack of heart for the adjustments necessary to wage this war become apparent. Who really, other than a dyed-in-the-wool-Berkeley-liberal really cares if Ramdan, Hamdi, Hamdan, Abu Nidal, and other similarly named dirt-bags at Guantanamo Bay are treated?

They were found in Afghanistan fighting our troops. That's enough for most Americans to want them detained indefinitely or hanged. They serve no useful purpose to the human race. They picked the wrong team, and that team deserves no quarter. Al Qaeda perpetrated 9/11, and the "Afghan Arabs" and al Qaeda were coextensive with one another.

It's true, there may be a hapless goat farmer mixed in with them. That's really too bad, but this kind of erring on the side of killing and disabling the enemy is a fundmaental aspect of war. This switcihng of the burden of proof from one of "presumed innocent" to "this guy is looking at us funny" is what distinguishes wartime military actions against the enemy from peacetime law enforcement operations. I'm sure, by way of comparison, that some Jews and anti-Nazi Germans got killed in the fire-bombing of Dresden. That's too bad. But it's intrinsic to wars, in which the nation's first and fundamental duty is to win. Everything else is secondary, especially the civil rights of foreigners.

The fundamental difference of Republicans and Democrats on the war is that we think this is a war where, in Hamilton's words, "[d]ecision, activity, secrecy, and dispatch" are the order of the day. Democrats think midnight basketball, sucking up to the UN, rap sessions, appeasement, drawn out trials (complete with the dream team), and laborious and clumsy law enforcemnt operations are the way to approach this threat. This, incidentally, is the sucking-up policy during the nineties that led to 9/11.

Thankfully, the al Qaeda detainees and our foreign enemies don't have a vote. If Democrats win in '08 it will be because of Iraq; if they dare to pursue their moronic civil liberties agenda to constrain the war on terror, they will find themselves out of luck in '10. Hopefully not too many Americans will die in the process.

[Frederick Hamilton]

Garth,
They won't get me. I am not worried for myself. I live in a part of the country where the jihadists probably don't know exists.

My daughter however does live in NYC. Different story there.

I appreciate that the appeasers don't mind a few thousand innocent American deaths at the hands of the jihadists. That is a given on their part.

I just think ignoring the threat is a bad decision, but hey you go with the appeasers, I go with the interceptors and fighters. Difference in approach.

[Erasmussimo]

Mr. Hamilton, you seem to have a strong preference for arguing against ghosts:

"...the appeasers don't mind a few thousand innocent American deaths at the hands of the jihadists. That is a given on their part."

Tell me, who are these appeasers? What are their names? Have any of them ever written here? Can you offer us some quotes from these appeasers that support your claim?

[Phil]

Why am I seeing identical 4:53pm posts from LAK and Erasmussino yesterday? Is there something we should know about you 'two'?