Blurred Lines: If this administration won’t tackle the vexing problems of America’s vast intelligence gathering apparatus, we’re all in danger.

March 29, 2012

Foreign Policy:

When he was at the helm of the Central Intelligence Agency, Michael Hayden was fond of comparing the laws that limit agency operations to the white sidelines of a football field. CIA agents should operate so close to legal boundaries, he remarked, that they get “chalk on their cleats.”

Unfortunately, those chalk lines today are too faint for either intelligence officers or the public to see. Although Congress instituted intelligence reform in 2004, and a hallmark of President Barack Obama’s first term has been his aggressive approach to fighting terrorism, there has never been a real debate in Congress or in the public square about the intersection of our values and our requirements for gathering intelligence.

The result is a hodgepodge of internally inconsistent policies, an outsized role for the courts in interpreting and, in some cases, striking down those policies, and huge gaps in what the public knows and has been told. Recent questions raised about the nature of the New York Police Department’s surveillance of mosques are but one example.

In the absence of clear legal policies, those expected to implement them either become risk averse or feel enabled to commit abuses. Abu Ghraib and the more recent Quran burnings in Kabul are unfortunate cases in point. (While the awful Quran episode may have had more to do with cultural insensitivity than intelligence gathering, have we really learned nothing in ten years in Afghanistan?)

One of the biggest reasons for this lack of progress is Congress’s ongoing and exquisite dysfunction. The toxic paradigm of finger-pointing instead of bipartisan problem-solving has created almost total legislative gridlock. What passes for serious debate occurs within a tiny bandwidth, leaving scant chance to raise the tough issues — let alone resolve them during this heated election year.

Discussion of these issues must be high on the agenda for the next president, no matter who he (gender seems the only given at this point) may be. America’s leaders have an obligation — indeed, a very heavy burden — to tackle them.

Here are four that should get top priority:

1. The prison at Guantánamo Bay.

The Guantánamo Bay prison, where people were initially placed in wire cages resembling large chicken coops, has evolved into a state-of-the-art facility — at a cost of $150 million per year. It’s ironic that much of the inmate hierarchy and command structure developed when barbed wire cages permitted free communication — and that none of the subsequent “improvements” has been able to disrupt that.

Although President Obama signed Executive Order 13492 to close the prison within his first year in office, the issue proved to be much tougher than he and his team anticipated. Files on individual inmates were incomplete and in many cases the “evidence tree” could not be rebuilt and was therefore inadmissible in federal court.

The House and Senate also stymied the president’s original intent by blocking transfer of any of the 171 remaining prisoners to the United States for civilian trials. Congress first spooked itself and then launched a politically expedient campaign to scare the American people by invoking visions of grisly terrorist killers wandering around their neighborhoods. It’s the Willie Horton ad campaign all over again.

This ironically bipartisan misbehavior leaves military justice as the only way to clear the backlog of prisoners. Yet military courts have secured only a handful of convictions since 9/11. In contrast,more than 400 terrorists have been convicted in Article III federal courts and are now serving long — sometimes life — sentences in federal supermax prisons.

Still, the tough questions remain on hold. For Gitmo’s so-called “Final 15″ detainees, where there is inadequate evidence to charge and try them but real concerns about the danger of releasing them — even to other countries willing to accept them — is the answer to let them go free? And, if not, does “preventive detention” square with the Constitution and American values? Should the Geneva Conventions — which specify procedures for capture and imprisonment of enemy combatants — be updated?…

Read it all.

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