Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
In the Clinton Administration, I participated in vigorous debates about whether to treat transnational threats, such as terrorism and weapons of mass destruction, as law enforcement or intelligence and war fighting issues. After September 11, 2001, this issue was thrust into the limelight as the Bush Administration and civil liberties groups argued in public about whether to treat terrorists as enemy combatants or common criminals---with Congress, as always, vacillating with public opinion. One of the primary critiques agreed upon by the bipartisan 9/11 Commission was that treating terrorism, as was largely done before 9/11, as a traditional law enforcement issue was a mistake. Immediately after the largest foreign attack on US soil in our history, President Bush announced that the “War on Terror” was just that---a war, not a police issue---that it would be long, and would be fought using every ounce of constitutional power the US Government possessed. Reacting to some of the negative consequences of that decision, President Obama and Attorney General Holder returned to a largely law enforcement approach to terrorism, with notable exceptions such as drone strikes and recent military actions against ISIS. Many of our allies have followed suit. We have just seen an example of the consequences of this approach. The two radical Islamist terrorists (and, yes, we need to call them that, with no defaming of Islam, just as calling out the Inquisition for what it was doesn’t defame Christianity) reportedly were on the US No-Fly list and in our terrorism databases. Al Qaeda trained these terrorists. One of these Al Qaeda soldiers reportedly even served a number of months in French prison for attempting to move foreign fighters to Iraq for the terrorist group. These are enemy warriors, not criminals. The French seem to have learned this lesson, at least for today. The deadly operations this morning did not utilize subpoenas or indictments but weapons and tactics. The United States has declared the “war” on terror over and won, moving our troops and intelligence assets out of Iraq and, now, Afghanistan, releasing dangerous Guantanamo terrorists, many of whom have rejoined the war, and no longer capturing and interrogating enemy terrorists, rather killing them or giving them lawyers and reading them their Miranda rights. Unfortunately, our enemies, old and new, are very much still at war with us, with ISIS (formerly Al Qaeda in Iraq) capturing and holding large swaths of territory, heavy weapons, banks and infrastructure, and taking beheadings and crucifixions to an industrial scale. The law enforcement model failed tragically in this case. The terrorist convicted of joining and supporting Al Qaeda served less than two years in French custody and was put back on the streets of Paris, apparently with no surveillance. Thousands of Europeans and some Americans have joined the enemy and have passports to get back home and carry out similar attacks, or worse, as what Paris has suffered. These enemy combatants cannot be treated as ordinary criminals, as the French originally did in this case. Throughout this vitally important, and tragically still relevant, debate, the legal profession has been woefully negligent in finding solutions. Left-leaning lawyers continue to assert that the “rule of law” (by which they mean US criminal law) requires only law-enforcement solutions. Right-leaning lawyers tend to argue the need for perpetual war, relying on precedents from World War II and before to justify indefinite detention, non-criminal interrogation, and other measures traditionally part of the laws of war, without a serious attempt to update them for a new type of asymmetrical warfare in the modern age. Neither is the right answer and neither side has offered a viable new legal regime for dealing with a war that, as is crystal clear this morning, is not only not over but escalating. President Bush did not get this right, and neither has President Obama. The right solutions will take time and thought to develop, but, particularly with MI-5 stating today---on the record---that Paris may be a trial run for attacks in the US and elsewhere, we had better get started now. I cannot think of a better place to have this discussion than Lawfare. I hope others will jump into the fray with me.
Bryan Cunningham, practicing law at Zweiback, Fiset, & Coleman, LLP, is an international expert in privacy and data protection law, cyber security, trade secrets, employee monitoring, and government surveillance issues. Bryan developed this unique practice through extensive experience in senior U.S. Government intelligence and law enforcement positions. He served as Deputy Legal Adviser to then-National Security Advisor Condoleezza Rice. He also served six years in the Clinton Administration, as a senior CIA officer and federal prosecutor. He drafted significant portions of the Homeland Security Act and related legislation, helping to shepherd them through Congress. He was a principal contributor to the National Strategy to Secure Cyberspace, worked closely with the 9/11 Commission and has provided legal advice to Presidents, National Security Advisors, the National Security Council, and other senior government officials on intelligence, terrorism, cyber security and other related matters. Bryan’s practice has included assisting Fortune 500 and multinational companies to comply with complex, and often conflicting, data protection requirements under U.S. federal law, U.S. state laws, and the numerous specific requirements in the European Union and other overseas jurisdictions. He also has counseled start-ups and other companies in general matters and created and directs a privacy advisory committee for a multi-billion dollar company. As the principal author of legal and ethics chapters in authoritative cyber security textbooks, Bryan is also a frequent media commentator on privacy, cyber security, electronic surveillance, intelligence, and other national security issues. He has appeared on CNN, Bloomberg, ABC, Fox, CNBC, NPR, and PBS, and has been published in numerous national newspapers and overseas publications. Bryan is the current Executive Director of the University of California, Irvine’s Cybersecurity Policy & Research Institute. He was founding vice-chair of the American Bar Association Cyber Security Privacy Task Force and was awarded the National Intelligence Medal of Achievement for his work on information issues. He has served on the National Academy of Sciences Committee on Biodefense Analysis, the Markle Foundation Task Force on National Security in the Information Age, and the Bipartisan Policy Center Cyber Security Task Force.
The United States has excluded most law from Guantánamo Bay for decades. It should reverse that position now and provide medical care for its declining detainees.
Unless policymakers act, increasing threats to public officials will normalize political violence and stymie civic engagement and democratic processes.