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An Endless War on Terror?

It might seem an odd moment for the War on Terror to expand.  The 9/11 terrorist attacks are now ten years in the past; Osama bin Laden is sleeping with the fishes; and all of the alleged 9/11 perpetrators who are not dead are in custody awaiting trial.

President Obama—the man who ran for president promising to end the Bush Administration’s signature methods of fighting terrorism—is still in office.

Ten years after America’s entry into World War II, to make an imperfect but still telling analogy, the country had moved on to other global conflicts.  The Japanese and Japanese-Americans who were held in internment camps had been released, albeit without an apology, and Germany was an ally, not an enemy.

But the War on Terror has not only stayed with us, it’s growing.  Bills currently in Congress go well beyond the already broad bounds of the Bush Administration’s War on Terror policies.

Yes, the timing is odd, but only if one cares about evidence, logic, cause-and-effect relationships, and other possibly outmoded concepts.  Seen through the lens of politics, fear-mongering, and the election cycle, the timing of these bills is understandable.  Call it election fever.

An Irresponsible Congress

The combination of hungry Republicans and cowardly Democrats—and the uniquely horrible Joe Lieberman—makes for a perfect legislative storm. While apparently unable to agree on a payroll tax cut or other economic measures that might help struggling Americans, members of Congress are working in model bipartisan fashion to pass dangerous and irresponsible counterterrorism legislation.

The National Defense Authorization Act (NDAA), which contains provisions that would rip holes in the Constitution, passed the Senate last week on a 93-7 vote.  An equally awful though somewhat different version of the bill passed the House of Representatives several months ago.  Unless the end product is radically improved during conference committee negotiations—an unlikely outcome—some alarming mix of House and Senate NDAA provisions will reach President Obama’s desk very soon.

It is hard to overstate how bad this legislation is. It would essentially make Guantanamo permanent, and enshrine the Guantanamo approach to fighting terrorism as the country’s default counterterrorism policy. Detention without trial would become a normal feature of US law, and the military would become the presumptive detaining and prosecuting authority in entire categories of cases. The bill’s broad powers would even threaten American citizens arrested on U.S. soil.

These provisions wouldn’t just take the country back to the War on Terror framework, they would, in many ways, expand it beyond its earlier boundaries.  During the Bush Administration, even as Guantanamo attracted public scrutiny, hundreds of terrorism suspects were prosecuted in the US federal courts.  Defendants like Zacarias Moussaoui and Richard Reid are now serving life sentences after court proceedings governed by the same rules as other criminal cases.

This brings me to another important point.  As any review of the record will show, it is not just human rights and civil liberties that the bill shreds.  From the standpoint of effectiveness, the law is a disaster.  It takes responsibility for bringing terrorists to justice away from the federal, state, and local law enforcement authorities that have the necessary expertise in investigating and prosecuting terrorism, gravely handicapping future counterterrorism efforts.

A Weak President?

The crucial remaining question is how President Obama will react to this congressional affront.  Back in May, when the House was debating its version of the bill, the White House issued a Statement of Administration Policy that threatened a veto. Using strong and principled language, the White House objected to provisions of the bill that threatened to establish a never-ending War on Terror, and that foreclosed Obama’s stated plans to shut down Guantanamo.

Although President Obama’s record on human rights and national security issues has not been terribly consistent, there have been recent encouraging signals that he is planning to follow through on his veto promise.  Last week, just after the Senate approved the NDAA package, a National Security Council spokesman issued a statement that renewed the president’s threat of a veto.

If ever there was a moment when presidential leadership was needed, this is it. Not only is a veto necessary to stop a damaging bill from becoming a pernicious law, it is needed to change the larger political dynamic.

The president needs to seize the initiative on these issues, instead of leaving them to the political hacks and conservative ideologues in Congress.  It is the current policy stagnation—marked by Obama’s failure to challenge the Guantanamo status quo of detention without trial—that leaves the door wide open to bills such as these.

With Republican positions on these issues growing ever more extreme (witness Senator Lieberman’s recently-introduced citizenship-stripping bill, and Senator Kelly Ayotte’s shameful efforts to bring back torture), it is long past time to say no.

Joanne Mariner is the director of Hunter College’s Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law.

This column previously appeared on Justia’s Verdict.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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