Ten years after the 9/11 attacks, America still grapples with the balance between safety and freedom. President George W. Bush presented the country with a false paradigm by abandoning some of the country's fundamental principles in the name of national security. As a candidate, Barack Obama promised to reverse the most extreme elements of Bush's program. As president, he has struggled to fulfill that promise. Most worrisome is the continued indefinite detention of terror suspects and the massive surveillance state that has been spawned without adequate supervision. If American liberty is not to be permanently compromised, the nation's leaders should address these issues.
Obama was to be the antidote to Bush's abandonment of the rule of law. Under Bush, the United States abused prisoners in violation of the Geneva Conventions, federal law and treaties banning torture. CIA interrogators waterboarded three al-Qaida suspects, and prisoners in Iraq and Guantanamo were exposed to a range of abusive detention practices that were approved by officials at the highest levels of the administration. Extraordinary rendition was routinely used by the CIA to send prisoners to other countries — whose intelligence services were known to use torture — for interrogation.
Obama ended the policy of extraordinary rendition to countries that torture, and he ended the torture and abuse of prisoners in American custody. But treating prisoners humanely is not enough. The detention camp at Guantanamo Bay, Cuba, was designed by the Bush administration to be beyond the reach of U.S. law. The U.S. Supreme Court rejected that assertion of executive power. But the camp's continued existence and the dozens of prisoners who remain in legal limbo raise serious constitutional issues.
Bush handed Obama this problem. Some of the stymied cases against terror suspects were tainted by evidence obtained through torture, which is not admissible in court or before a military commission. Still, indefinite detention should not be an option in a country that respects due process and the rule of law.
Congress has been getting in the way, too. Obama tried to fulfill his promise to shutter Guantanamo and relocate the remaining prisoners into a high-security prison in the United States. His administration also attempted to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four of his associates in civilian courts in New York. But the administration's critics turned the ideas into political bugaboos, and the fierce backlash forced a retreat.
Despite the political challenges, Obama should not resort to military commissions. The federal courts are well equipped to try the remaining Guantanamo detainees. The courts have successfully convicted hundreds of terrorists, and civilian trials would demonstrate to the world that America's commitment to its founding principles has not wavered.
Where Obama has been even less attentive to civil liberties is in the expansion of the surveillance state. Since 9/11, as documented last year by a Washington Post investigative series "Top Secret America," a massive top-secret world has been built, including at least 263 new or reorganized military and intelligence agencies. Redundancy and waste are endemic. The Post reported that every year analysts now publish 50,000 intelligence reports, an amount so large that many are ignored.
But the concern over this massive spying system is not just over questionable efficiency, effectiveness and resource allocation. It is whether Americans' right to be free from unwarranted government intrusion is being respected. Under Bush, the National Security Agency gained access to billions of American phone calls and e-mails without a warrant. The disclosure unleashed public anger, yet Congress failed to sufficiently constrain the agency's eavesdropping authority. This dereliction raises the prospect that our huge intelligence-gathering apparatus is operating with too few checks and balances.
The attacks of 9/11 ushered in a dark time for the nation's civil liberties. It was as if America was too often too fearful to stand for its founding principles. Obama corrected some of this, but there is more work to do. Unfortunately, it isn't clear that he or our other national leaders are interested in the job.