Constitutional Law

New National Security Strategy Misses the Mark

By Mandy Simon and Rachel Myers, ACLU

(Originally posted on Daily Kos.)

The Obama administration released its National Security Strategy (PDF) last week and, as you may have guessed, it covers several issues the ACLU cares about. Unfortunately, the strategy neglects to put forward any new ideas about how to protect civil liberties and human rights. In fact, much of the strategy seems to be recycled policy positions taken from a speech the president gave in May 2009 at the National Archives.

While the strategy makes some vague commitments on human rights, it contradicts its own promises. It states that "our moral leadership is grounded principally in the power of our example," but then goes on to outline a strategy involving indefinite detention without charge or trial on the very same page. A policy that so drastically undermines American values and the rule of law is hardly the example we want others to follow. In fact, the National Security Strategy misses the mark on several key issues.

Indefinite Detention and Military Commissions

The strategy document calls for the federal government to imprison people indefinitely without charge or trial based simply on the government's claim that someone is a "danger to the American people." It also reiterates the administration's plan to continue to use the discredited military commissions despite the fact that the commissions lack basic due process protections.

Including an indefinite detention scheme in our country's National Security Strategy goes against the president's promise to restore and respect the rule of law. Detaining individuals who were captured far from any battlefield indefinitely without charge or trial violates our commitment to the Constitution and due process. We'll be working hard to change the administration's mind on this and urging Congress to block any legislation that would authorize a permanent plan for indefinite detention without charge or trial.

State Secrets

The strategy states that, whenever possible, the administration makes "information available to the American people so that they can make informed decisions and hold their leaders accountable," and that they "will never invoke the privilege to hide a violation of law or to avoid embarrassment to the government." Yet the Obama administration continues to withhold from the public key documents relating to the CIA's rendition, detention and interrogation program and has invoked the "state secrets" privilege to avoid legal scrutiny of the Bush-era torture program, even when the information they are keeping a secret is already well-known to the public — keeping victims of torture from having their day in court and shielding Bush administration officials from civil liability. These policies are in direct opposition to the administration's stated commitment to government transparency.

Cyber-Security

The strategy states a commitment to protecting our digital infrastructure while safeguarding privacy and civil liberties. But by hyping threats to cyber-security and making unsupported claims that terrorists are engaged in cyber-crime to fund terrorism, the strategy conflicts with the administration's earlier admonition against using fear to justify intrusive government action.

The National Security Strategy also advances the idea of public/private partnership to protect cyber-security, while failing to recognize that in the past such efforts (such as NSA's collaboration with AT&T to intercept communications without warrants in violation of the Foreign Intelligence Surveillance Act and the FBI's cooperation with telecommunications companies to obtain consumer data with illegal exigent letters) have severely undermined personal privacy and due process.

Domestic Surveillance and Counterterrorism

The administration makes a welcome and serious observation that it believes our country is not at war with the religion of Islam but with terrorists, but doesn't address ongoing policies that lead to racial and religious profiling and actually seem to promote such policies.

For instance, the strategy points to fusion centers as an effective tool that allows federal, state and local law enforcement to share classified information about suspicious activity by individuals and groups. Unfortunately, this "suspicious activity reporting" is little more than an excuse for collecting innocuous information about "the usual suspects" — immigrants, people of color, and nonmainstream political or religious groups, as it includes behavior as benign as witnessing someone take a photograph or carry binoculars.  And although there is plenty of evidence that fusion centers are producing faulty intelligence, federal guidelines for fusion centers are voluntary and there is no enforcement mechanism or governance structure to rein in wayward centers. Scarily, both the military and private companies operate in fusion centers where they can access American citizens' sensitive information with few guidelines and little oversight. Unfortunately, the National Security Strategy fails to recognize these problems.

Though the strategy states that the administration will conduct "vigorous oversight" of its national security efforts, there is no mechanism in place for making sure that oversight actually occurs. This is an area where Congress can make a huge difference, and the ACLU has long been asking it to step up its oversight duties and enact a strict set of regulations for fusion centers.

We hope this document is more than just recycled rhetoric, and that the Obama administration will put its words into action. They should start by implementing policies that are in line with the Constitution and domestic and international human rights law, and striking down those that aren't.

Join the ACLU in calling on President Obama to issue an executive order on human rights. Send a message here.

Full post as published by Blog of Rights on June 02, 2010 (boomark / email).