After the 9/11 terror attacks in the US, President George W. Bush established the Office of Homeland Security (OHS). The OHS had a direct mandate to coordinate detect, respond, and prevent terror attacks within the US. The establishment of the OHS followed the enactment of the Homeland Security Act of 2002 that was signed into law in November 2002. The Act consolidated 22 executive branch agencies charged with protecting homeland security and incorporated them into the newly established Department of Homeland Security. Further, the enactment of the Patriot Act six weeks after the 9/11 attacks authorized the National Security Agency to carry out warrantless communication surveillance such as wiretapping ( Monahan, 2009) . Proponents of the warrantless communication surveillance and interceptions argue that it helped the OHS and related law enforcement agencies to prevent multiple terror attacks both domestically and internationally. The Passage of the Patriot Act and the establishment of the Department of Homeland Security is regarded as the most extensive reorganization of the security systems in the US since the Cold War era.
Conversely, the counter-terrorism policies and operations in the post 9/11 period were in sharp contrast with the previous strategies. The enhancement of counterterrorism strategies and policies in the post 9/11 period were institutionalized by legislation and presidential directives. They were based on legislation of new laws, preemptive and reactive military operations, as well as changes in the criminal justice system to address terror once it occurred within the national borders. Nacos (2012) observes that the shift in the US counter-terrorism approach post 9/11 was necessitated by the rapid increase in the terror threat level due to enhanced material and human resource capacities of terrorist organizations. A case in point is the 1993 bombing of the World Trade Center which was orchestrated by a relatively small terror group while, in comparison, the 9/11 attacks were conducted by a well-organized, well-funded, terror organization with a global reach that operated from a safe haven in the Middle East. The US had experienced several terror attacks orchestrated by Al Qaeda prior to the 9/11 terror attacks. Al Qaeda conducted simultaneous attacks on US embassies in Tanzania and Kenya in 1998, bombed the American warship USS Cole in 2000, attacked US military living quarters in Saudi Arabia, and bombed the World Trade Center in 1993.
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However, in all pre-9/11 terror attacks, the US responded using the existing criminal justice systems and law enforcement agencies. This approach was complemented by enhanced intelligence gathering and surveillance to prevent terror attacks. The pre-9/11 enhanced intelligence and surveillance approach succeeded in preventing terror attacks in various US embassies in Europe. It is also credited with the successful prevention of a Los Angeles airport terror attack in 2000. The US rarely resorted to military action in response to terror prior to 9/11. However, a major shift in the counter-terrorism approach occurred after 9/11 (Schwinn, 2016). There was a relatively higher involvement of the military in counter-terrorism. For instance, in 2001, the US launched the Operation Enduring Freedom – Afghanistan, a military invasion of Afghanistan aimed at removing the ruling Taliban regime and eliminating or capturing Al Qaeda operatives. The Obama administration, on its part, launched a drone war to neutralize terrorists and terror organization leaders in their various operational bases across the globe.
Essentially, the US counter-terrorism approach in the pre-9/11 period was majorly focused on domestic operations but the nation shifted its counterterrorism focus to a relatively more global approach after the 9/11. Since 9/11, the nation has engaged in several military interventions in different nations with the aim of preventing the proliferation of terrorist organizations. The US also enacted several legislations that increased the capacities of the law enforcement agencies and allowed the nation to establish new counterterrorism agencies. For instance, in 2001, barely one week after 9/11 the US Congress received legislation that led to the establishment of The Patriot Act. This legislation originated from the Justice Department and sought, in addition to other provisions, to expand the intelligence collection capacities of the law enforcement agencies such as NSA by authorizing them to monitor the internet, listen to private telephone conversations, monitor financial transactions, conduct searches, and share testimonies of grand juries. The Patriot Act, enacted on October 24, was widely opposed by civil liberty groups due to provisions such as warrantless wiretapping that could result in a potential breach of civil liberties (Katherine, Darmer, Baird, & Rosenbaum, 2004). However, the US Congress and the Senate had prioritized national security over the preservation of civil liberties especially with the reality of the recent 9/11 terror attacks and the scare of anthrax attacks.
The enactment of the US Patriot Act, though meant to promote and preserve national security, was said to violate some sections of the constitution. For instance, the Act allowed for the indefinite detention of terror suspects. This has been cited as a violation of the US federal writ of habeas corpus provided in Article One, Section 9 of the US Constitution. The writ of habeas corpus is a legal provision that allows civil litigation to be initiated against state agencies responsible for the incarceration of inmates to compel them to present incarcerated individuals before federal courts to determine the validity of the incarceration (Katherine et al., 2004). In the US, any individual may appear before a federal court and request that the authority in charge of detention of an inmate, mostly a warden, to avail the inmate in the federal court for judicial review of the validity of the detention.
The doctrine of the writ of habeas corpus is established in legislation, case law, and the Constitution. In the US Constitution, the suspension clause raises several controversies about the right of a terror suspect to apply for habeas corpus . Article One, Section 9, Clause 2 of the US Constitution states that the right to habeas corpus may be suspended in situations where there is a violation of public safety or due to rebellion. Terrorism is considered to be a threat to public safety. As a matter of fact, most terror activities target unarmed, defenseless members of society. The 9/11 terror attacks on the twin towers resulted in the highest number of civilian casualties from terrorism in US history (Mayali & Yoo, 2016). In response to the 9/11 terror attacks, the US Congress legislated the Authorization for Use of Military Force that empowered the president to use all necessary force to punish persons, nations, and organizations that may have participated in the planning, funding, and execution of the 9/11 attacks.
Further, Congress authorized the president to pursue persons, organizations, and nations that hosted or aided the perpetrators of the attacks with the aim of preventing future attacks. In response, President George W. Bush sent the military to Afghanistan with orders to overthrow the Taliban regime and kill or capture regime members as well as members of the Al Qaeda terror group. In the resulting war, the Taliban regime was removed from power in Afghanistan and a large number of Taliban and Al Qaeda members were captured. The captured individuals were referred to as “enemy combatants,” a new term that had not been previously used in war and international law. Captured combatants were held in various detention centers with the most notorious detainees being transferred to the Guantanamo Bay Prison in Cuba under the assumption that their status as “enemy combatants” did not allow them to enjoy the rights of prisoners of war stipulated in the Geneva Convention. The US government stated that it had the right to detain terror suspects indefinitely without access to legal representation or fair trial (Nacos, 2012). In the period after the establishment of the Guantanamo Bay prison and the transfer of inmates into the site, two landmark cases were heard in the US Supreme Court challenging the decision by the government to detain the terror suspects on foreign soil without legal representation or preferring charges.
In Rasul v. Bush case of 2004, families of fourteen foreign Guantanamo Bay detainees filed a habeas corpus case against the state and argued that the inmates were detained illegally. The Supreme Court of the US held that the inmates could apply for a federal habeas corpus but did not rule on the merits of the case. In the Hamdi v. Rumsfeld case of 2004, the father to Hamdi, an American detained as an enemy combatant in Charleston, South Carolina filed a similar habeas corpus case in the US Supreme Court. The Supreme Court ruled that the indefinite detention of Hamdi without legal representation or court appearance was in breach of his constitutional rights. The Court ruled that the government should establish some measures of due process but did not specify the exact due process to be put in place. The Department of Justice responded to the two rulings by establishing the Administrative Review Boards (ARB) and the Combat Status Review Tribunals (CSRT) in an attempt to provide the requisite due process rights for the detainees (Nacos, 2012). The ARBs conducted annual reviews of the threat posed by individual detainees to determine if they could be released while the CSRT was a hearing to determine the validity of the classification of a detainee as an enemy combatant.
On its part, the US Congress responded to the Rasul, Hamdi by establishing the Detainee Treatment Act (DTA) of 2005 to validate the ARB and CSRT procedures and provide Congressional oversight. In essence, this entrenched the constitutional doctrine of separation of powers into counter-terrorism activities in the US. The Act also sharply diminished the detainees’ rights to appeal the decisions of Review Boards and Tribunals in federal courts by directing that the detainees could only file such appeals in the Appeals Court for the D.C circuit (Mayali & Yoo, 2016). The DTA also stripped all federal courts their habeas corpus jurisdiction in relation to terrorism cases.
Essentially, the DTA sought to empower law enforcement agencies and the Justice Department to undertake counter-terrorism activities without the limitation of judicial oversight. Some civil liberty activists protested that the enactment of the DTA violated civil liberties such as the Fourth Amendment guaranteed under the constitution. However, despite the protests, the government proceeded to establish military tribunals to try terrorism detainees. The government's attempt to try Salim Ahmed Hamdan using the military commission resulted in Hamdan v. Rumsfeld Supreme Court case in which the Court held that the DTA’s limitation of habeas corpus jurisdiction of federal courts did not apply to Hamdan. The Congress responded to the Hamdan ruling by enacting the Military Commissions Act (MCA) of 2006 that stripped the federal courts any habeas corpus jurisdiction in relation to detainees and authorized the government to establish military commissions (Nacos, 2012). However, in Boumediene v. Bush case of 2008 filed in the US Supreme Court, the Court held that the Congress’ suspension of habeas corpus jurisdiction of federal courts violated the constitution. This resulted in multiple habeas corpus cases for detained terror suspects, most of which were rejected.
Apart from the limitations on habeas corpus jurisdiction of federal courts in relation to detained terrorist suspects and its constitutional basis, the interrogation techniques used by law enforcement agencies and their intelligence gathering strategies caused controversy. After the 9/11 terror attacks, the Bush administration controversially advocated for the use of "enhanced interrogation techniques" such as waterboarding to obtain intelligence information that could help to prevent future terror attacks. These enhanced interrogation techniques were widely considered as torture and were opposed by civil rights organizations. Opponents observed that the use of these advanced techniques violated both domestic and international laws (Katherine et al., 2004). The Bush administration, through the Office of Legal Counsel situated in the U.S. Department of Justice, issued a series of memos to justify the use of waterboarding in interrogation and argued that the president was justified to authorize its use to protect the nation.
Most of the memos justifying the use of enhanced interrogation techniques were revoked after Congress' enacted the Detainee Treatment Act of 2005. Although President Bush signed the Act into law, he proceeded to issue a constitutional signing statement stating that the enactment of the DTA encroached on the Article II powers granted to the president. The president thus refused to enforce the ban on the use of enhanced interrogation techniques. This decision by the president raised a separation of powers issue that remains unresolved to date. To date, it is unclear to what extent the executive can ignore legislation that they consider to violate their Article II constitutional powers. The Bush and Obama administrations, however, have since revoked the use of enhanced interrogation techniques. However, in an ironic twist to the reversal of the policy on the use of enhanced interrogation techniques, the executive has consistently and successfully defended itself against compensation claims filed by the victims of the enhanced interrogation techniques. The Department of Justice, on various occasions, successfully defended the executive directive on the use of enhanced interrogation techniques based on the doctrines of “state secrets privilege,” “political question,” and “special factors” rooted in the principle of separation of powers (Schwinn, 2016). The principle of separation of powers states that some issues such as national security are more appropriately resolved through executive decisions rather than judicial resolutions.
Another area of controversy in the US counter-terrorism activities has been the authorization of domestic spying operations by intelligence agencies. Prior to the 9/11 terror attacks, intelligence gathering and surveillance was regulated under the Foreign Intelligence Surveillance Act (FISA) of 1978 that authorized the government to conduct surveillance on foreign powers or their agents with the authorization of the Foreign Intelligence Surveillance Court (FISC) established by the Congress. However, post 9/11, President Bush authorized the National Security Agency to conduct warrantless surveillance using means such as email intercept, internet surveillance, wiretaps, and searches without the requisite judicial oversight. The operation, referred to as the Terrorist Surveillance Program (TSP) involved the surveillance of communication by suspected Al Qaeda members or affiliated groups into and out of the US (Nacos, 2012). The TSP was further enhanced in January 2007 when the president requested the Congress to increase the surveillance powers of the government by making amendments to the FISA.
In the consecutive Congress amendment of FISA, the NSA was authorized to intercept foreign communication but with authorization by the FISC. Further, the US Congress enacted the Protect America Act that provided short term authorization for the NSA to conduct warrantless surveillance of domestic private conversations. Section 702 of the FISA authorizes the government to collect metadata on individuals, locations, times, equipment, and duration of communications without necessarily collecting the content of the communications. However, an exposure by Edward Snowden, a former analyst in the NSA, indicated that the NSA had used the provisions of section 702 to illegally access data from the servers of tech firms using the PRISM program (Nacos, 2012). This indicates potential abuse of legal channels by the government agencies to violate the provisions of the First and Fourth Amendment in their in counter-terrorism operations.
In more recent times, the US counter-terrorism strategies have come under criticism as it emerged that the nation had adopted policies could result in racial profiling. For instance, after taking power, President Trump issued the Executive Order 13769 that denied entry into the US for nationals of several nations with majority Muslim populations. Although some aspects of the Executive Order were suspended by the courts or amended in the superseding executive order 13780, civil rights organizations still argued that the executive order promoted racial profiling. The Obama administration was also criticized for abetting racial profiling against Muslims and Arabs after it listed several nations such as Iraq, Syria, Sudan, and Iran as state sponsors of terrorism. In essence, the blanket ban on all national from the countries listed in the Executive Orders amounts to racial profiling. Further, since 9/11, individuals and businesses of Arab origin have been on the receiving end of racial profiling (Katherine et al., 2004). Additionally, most individuals, organizations, and nations listed on the terrorist watch are in the Middle East or North Africa and are dominated by Arab and Muslim populations.
Finally, the war on terrorism has also raised issues of ethical concerns. For instance, during the Afghanistan and Iraqi wars, the American troops were severally accused targeting civilian installations. One major ethical issue is the loss of human life and devastation of livelihoods. It is estimated that more than 200, 000 lives have been lost in the war in Afghanistan lives to date while more than one million lives have been lost in Iraq. This figure includes the collateral loss of civilian lives. Further, the global war on terrorism has caused extensive destruction of property and devastations of lives and economies. The war on terror is blamed for the rapid increase in the number of international refugees in the last few decades. The UN reports that, in the recent past, most of the internally displaced individuals and international refugees come from nations where antiterrorism wars take place. This is in addition to the expenditure of vast amounts of money in sustaining the wars. The UN approximates that since 2001, the global war on terrorism has cost approximately $13.6 trillion compared to $15 billion spent on peacekeeping and peacebuilding (Office of the United Nations High Commissioner for Human Rights, 2008). This highlights the extensive cost in resources and human life attributed to counterterrorism.
Essentially, in the 18 years of global war on terrorism after the 9/11 terror attacks in the US, numerous constitutional and legislative issues have arisen. The government uses legislation and executive orders to enact policies to address the constantly changing threats from terrorism. In some instances, case law also shapes the US counterterrorism policies. Several pieces of legislation such as the DTA, MCA and the amendments to the FISA have been enacted in an attempt to foster counter-terrorism. However, some of the counter-terrorism policies such as communication surveillance have been deemed unconstitutional and face widespread opposition by civil rights organizations. Conversely, the war on terror highlights the delicate balance between protecting civil liberties and protecting public safety.
References
Katherine, M., Darmer, B., Baird, R. M., & Rosenbaum, S. E. (2004). Civil Liberties vs. National Security in a Post-9/11 World. Prometheus Books: Amherst NY.
Mayali, L., & Yoo, J. (2016). A Comparative Examination of Counter-Terrorism Law and Policy. J. Korean L., 93 , 92-146.
Monahan, T. 2009. The Murky World of 'Fusion Centres'. Criminal Justice Matters , 75 (1): 20-21
Nacos, B. L. (2012). Terrorism and Counterterrorism (4th Ed.). Longman/Pearson.
Office of the United Nations High Commissioner for Human Rights. (2008). Human Rights, Terrorism and Counter-terrorism. Geneva: Office of the United Nations High Commissioner for Human Rights.
Schwinn, S. D. (2016). The Separation of Powers and 15 Years of Anti-Terrorism Policies since 9/11. Social Education, 80 (4), 214–218, 223.
Cases
Hamdi v. Rumsfeld , (2004) 542 U.S. 507 (US Supreme Court).
Rasul v. Bush (2004) 542 U.S. 466 (US Supreme Court).
