In some cases, the courts have shrunk the counterterrorism state. The Supreme Court ordered Congress to write new rules for the military commissions first developed under Mr. Bush.
In 2008, a federal appeals court ordered the FBI to seek court approval for the issuance of national security letters and barred the FBI from ordering the recipients of such letters to uphold a gag order on the request for information.
What’s more, Mr. Obama signed an executive order that closed CIA-run prisons in Europe, but he allowed temporary facilities to remain for the rendition of suspected terrorists to foreign jails and U.S. locations.
Mr. Obama also signed an order to make all U.S.-led interrogations cohere with the U.S. Army Field Manual.
The war on terrorism
In addition to new law enforcement powers at home, the U.S. military and CIA have expanded their missions overseas since 9/11 under legislation known as the Authorization for Use of Military Force enacted just three days after the attacks.
The authorization has been cited as a catchall by attorneys for both the Bush and Obama administrations as the authority for capturing terror suspects overseas, holding them without trial and killing them with remotely piloted aircraft in Somalia, Pakistan, Yemen and other places.
“It has been commonplace in American history that following a national trauma we have restricted rights and given too many powers to the executive,” said Ben Wizner, an attorney with the American Civil Liberties Union.
Mr. Wizner noted that Franklin D. Roosevelt detained Japanese-Americans during World War II and Abraham Lincoln suspended the writ of habeas corpus in some cases during the Civil War.
“With the war on terror, there is a danger that the cyclical pattern of rights restriction and restoration has been broken, and we are moving in one direction only, toward the permanent enshrinement of emergency powers as a new normal,” Mr. Wizner said.
Though Mr. Obama has continued a drawdown of troops in Iraq and announced the end of the troop surge in Afghanistan, his administration has given no signal about amending the Authorization for Use of Military Force.
Meanwhile, Rep. Howard P. “Buck” McKeon, California Republican and chairman of the House Armed Services Committee, is seeking to amend the 2012 defense authorization bill to expand the target of the war on terror to include the Taliban and affiliated groups. The move reflects the broader definition of the war resolution upheld by federal courts under the Bush and Obama administrations.
Former New Jersey Gov. Tom Kean, co-chairman of the National Commission on Terrorist Attacks Upon the United States, said the national security state could recede when Americans feel more secure.
“I think we start to relinquish those powers when we are less afraid, when the threat becomes less than it may still be,” Mr. Kean said in an interview last month. “It’s a very difficult question because people want to be safe.”
But he added that all of the measures taken by the federal government would not be as valuable in preventing attacks as a vigilant citizenry.View Entire Story
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