There is no reason for the Democrats to allow themselves to be painted again as the party that is weak on defense, an image that will haunt them when the next terrorist attack hits. Nor is there a reason that security and the protection of rights cannot be squared. One should not take lightly the marker that Cheney put down, just because so many good people hold him in very low regard. Republicans, and many other voters and our allies overseas, will ask “Did the Democrats neglect security?” when we are attacked again.
President Obama’s response tries to split the difference by drawing legalistic distinctions. He is closing Guantanamo, but is keeping it open, or least holding the detainees there for now -- maybe some other detention location or shipping them to Saudi Arabia will follow. He has divided the detainees into five groups, each of which he hopes to grant a different level of rights, enough to make even the eyes of a law student blur over. He is closing the military commissions by reopening them under modified rules. There must be, there is, another way.
Democrats ought to start by making it plain that Cheney and his associates, far from making us secure, left us woeful exposed. There are several major security threats that were largely ignored by the Bush-Cheney Administration. It is the Obama Administration that is attending to these threats, and in ways that progressive people have little reason to oppose.
The threats include, first of all, the dangers posed by cyber terrorists to both the government and the private sector. Given the way U.S. computer networks are now exposed, little information—whether it concerns security or the economy—can be kept confidential. Moreover, cyber attacks can readily disrupt key elements of US infrastructure, such as air traffic. In 2008, hackers breached government computers and planted harmful software 5,499 times. Cyber spies stole information on the Defense Department’s Joint Strike Fighter. It was left to Obama to pay the proper attention that this issue commands by appointing a cyber security czar, a long overdue step in the right direction.
Equally exposed is the electrical gird on which U.S. factories, offices and homes all rely. Software programs were found to have been planted in the U.S. electrical grid that could be used to disrupt the system in the future. An experiment in an Idaho demonstrated that hackers could command an electricity-producing turbine to spin in ways that would cause it to fly apart. Another security matter the previous administration did not address.
Finally, very little has been done to prepare for bioterrorism. A 2008 Congressionally mandated independent commission report found that a biological attack is more likely than a nuclear terrorist attack. It is widely agreed that Al-Qaeda has tried to develop a bioterrorism capability, and a January 2009 report indicates that terrorists in Algeria may have been stricken by biological agents with which they were working, possibly the plague. Dealing with this threat has also been left largely to the Obama Administration.
Some may argue that although advancing these security measures violates no rights, indeed it helps protect them, merely championing new and powerful security measures amounts to fear mongering. However, the measures that are needed have the great merit that they should be introduced even if no terrorist attack is feared to occur. Enhancing cybersecurity is essential to protect our privacy, trade secrets, and intellectual properties. A smarter and more reliable grid is needed to promote energy conservation. And many measures needed to protect us against a bioterrorism are no different from those needed to respond to a pandemic.
In short, any suggestion that Cheney and company made us more secure and that the Obama Administration is neglecting our security has no basis in the facts.
At the same time, there are several key changes in security policy that civil libertarians favor and that no one in his right mind can claim undermine our security. For instance, instead of continuing with indefinite detention without review, a gross violation of one of the most profound foundations of liberty—habeas corpus—the term of confinement of each detainee should be reviewed every year or so to determine whether it is safe to release the person, as is done for many sex offenders. The Supreme Court examined that form of detention in Kansas v. Hendricks (regarding the constitutionality of Kansas’s 1994 Sexual Violent Predator Act) and found it constitutional. There is no reason to accord terrorists more rights than to American sex offenders.
Similarly, it is hard to see why we should not replace the military commissions with a national security court, as suggested by the current U.S. Justice Department Deputy Solicitor General Neal Katyal, or better yet with a national security review board. Those reviewed by this body should have access to a lawyer of their choosing from a list of lawyers with security clearances. And they should be able to appeal the decision to a second, higher ranking, review board. Other adaptations can be made, such as not allowing incriminating statements to be thrown out on the basis of a suspected terrorist not having been read his Miranda rights, in the heat of a battle. But one can still ensure that those detained will be judged by some independent body that will fairly determine whether they indeed are a security risk or should be released.
Other measures can be readily discerned if one does not approach the matter with attempts to parse each measure so that it address both sides of the issue. There are some security measures this administration can and should take, and several ways rights can be restored, without so much fudging.
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