In an effort to clarify ambiguous language in the Electronic Communications Privacy Act, the Obama administration is asking Congress to pass a measure that would allow the FBI to gain access to an individual’s web browsing history and email traffic record (not the messages themselves, but the list of addresses they were sent to and received from). The proposal would give the Bureau the authority to demand the information from Internet service providers by means of a “National Security Letter” (NSL), requiring no court approval but just the signature of a senior FBI official stating that the request is related to a terrorist or intelligence investigation.
Civil libertarians are up in arms: some calling it a “stunning and brazen request” and the New York Times suggesting the administration is “breaking a promise on surveillance.” And given the FBI’s documented history of abusing its authority to issue NSLs in the past, their concerns are not without some basis.
But the complaint in this instance is really tied to a larger criticism by the president’s would-be supporters that he hasn’t done more to roll back the previous administration’s counterterrorism policies. As a presidential candidate, Barack Obama was not shy about criticizing the Bush White House’s response to 9/11, calling it “dangerously flawed” and “undermin[ing] the very values that we are fighting to defend.”
There have been changes from the Bush years, of course. Among President Obama’s first acts were to put an end to the CIA’s enhanced interrogation program and to announce his intention to close Guantánamo. In addition, the decision to try Khalid Sheikh Mohammed, the mastermind behind the attacks on 9/11, in a federal court rather than before a military tribunal was a break from what the Bush team had planned.
On the whole, however, there have been fewer changes than many (especially those on the professional left) expected. For instance, the Obama administration has not abandoned the option of indefinite detentions for captured terrorists; it has modified, but not eliminated, the use of military tribunals. It continues to prosecute the war in Afghanistan, increasing both the number of American soldiers there and the number of targeted killings in neighboring Pakistan. And, on the home front, the administration has made no effort to overhaul the laws, guidelines, or institutional reforms put in place after 9/11 by Obama’s predecessor.
Although the Obama administration has abandoned the phrase “war on terror,” it knows from the bevy of arrests and failed attacks (as well as the successful Fort Hood assault) during its first two years in office that the United States is still at war with al Qaeda and its allies, and that preemption, both abroad and at home, is the key to keeping Americans safe from future 9/11-like attacks. As one senior administration official put it in arguing for the new statutory language for gathering email traffic, the NSL “allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient.”
Those criticizing Obama for staying the course set by the previous administration would do well to recognize that this approach is fully consonant with the practices of virtually all our key democratic allies. Equally important, it has largely succeeded.
Take two recent news stories from France. In late July, French forces were involved in a raid on the border of Mali and Mauritania that killed a half dozen al Qaeda terrorists. Although intended to free a French hostage, the raid was consistent with the government’s 2005 white paper on terrorism which stated that France would not hesitate to use military force to preempt terrorist activity.
Also at the end of July, France’s highest court stripped French police of their power to hold criminal suspects for up to 48 hours without bringing charges or advising them of their right to a lawyer. The court, though, stated that its ruling did not apply to suspects possibly involved in exceptional crimes, such as terrorism. In those instances, an individual can still be held without access to a lawyer for up to three days. And, even when charged, a suspect can be held in pre-trial detention for up to four years. Similarly, in Britain, a terrorism suspect may be detained without charges for up to 28 days.
The fact is, whether one is looking at police surveillance powers, laws defining terrorist activities, prohibitions on speech, cooperation between police and intelligence, or—as in this instance—access to Internet use, the norm in Europe is no less forward-leaning in the fight against terrorism than here in this country—and is often more so. Although there are differences in specific counterterrorism practices due to the differences in history, constitutions, and threat levels, democratic governments across the board are nevertheless working aggressively to head off the kind of devastating attacks that occurred in the United States in 2001, in Spain in 2004, and in London in 2005.
To accomplish this, there has been an adjustment in the balance struck between the government providing security and the day-to-day exercise of civil liberties. It is wrong, however, to suggest that this adjustment has resulted in some dramatic alteration to the freedoms we associate with decent democratic rule. Compared with earlier points in history when a serious threat to national security arose, the policies adopted both here and in Europe have been far less onerous.
In short, Barack Obama has nothing to be embarrassed about when it comes to keeping in place much of his predecessor’s counterterrorism policies. Rather than burying that fact, the Obama White House should accept it and point to its successes, while also noting those same policies are well within the “democratic mainstream” of our closest allies.
Gary Schmitt is a resident scholar at the American Enterprise Institute and editor of the recently published Safety, Liberty and Islamist Terrorism: American and European Approaches to Domestic Counterterrorism (AEI Press).