The administration convinced the judges that all the data was relevant to prevent terrorist attacks. In response to the New York Times revelation of the surveillance of telephone conversations, the FISA Amendments Act was passed in , legalizing key aspects of existing practices. The use of the data thus collected is not limited to national security investigations. The FBI received extensive powers to use the data for law enforcement. Under Upstream, the NSA taps into the internet infrastructure — the so-called backbone of the internet — and searches all traffic according to certain criteria.
Data filtered out in this way is stored on its own servers. With Prism, providers of internet services, such as social media or cloud services, are obliged to transmit the data of certain users to the US authorities. Upstream and Prism also collect large amounts of data from US citizens incidentally. In principle, the FISA Court authorizes the activities under Section on condition that the sensitive data of US persons is made unrecognizable before it is processed further; however, the information does not have to be deleted.
Each agency has its own minimization procedures, according to which sensitive data is handled.
One important rule concerns the question of what criteria each agency has to apply in using selectors, that is, the search terms that determine legitimate surveillance targets the scope of the information searched. The FBI, for example, as a domestic agency, has broader authority to use the data of US citizens than institutions dealing with foreign intelligence. The FISA Court has repeatedly complained in the past that the intelligence services did not observe the rules for the protection of US persons.
It published a report with numerous policy recommendations, some of which were taken up.
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It recommended making FISA Court decisions, minimization procedures, and statistics on data collection public. For the most part, the suggestions were taken up. With the Presidential Policy Directive, Obama recognized for the first time that foreign citizens also have a right to privacy. Two policy changes would have been inconceivable without the Snowden revelations. On January 17, , President Obama issued Presidential Policy Directive 28 PPD , which establishes further guidelines on espionage and the surveillance of foreign targets.
The directive refers to measures taken under Executive Order , that is, in accordance with the inherent authority of the executive for foreign intelligence. Similar to US citizens, minimization rules are introduced to help protect the privacy of innocent people. In addition, espionage is limited to six purposes. However, as this is a purely executive measure, it is not certain that this policy will be maintained under President Trump. The data is no longer transferred to and stored on government servers; instead, the data remains with the telephone companies and is kept for days.
Such warrants, unlike before, must be based on a specific and sufficiently narrow selection criterion to avoid collection in bulk. The reform was only possible because the existing legislation had a sunset clause leading to its expiration on June 1, These far-reaching implications did not prevent a bipartisan majority in Congress from extending the law in its existing form for another six years. After some of the clandestine surveillance activities became public knowledge, a legal basis was created for them. Only when the extent of the surveillance became public through the Snowden leaks were there some course corrections.
The use of lethal force in the fight against terrorism is not limited to areas or time periods in which the US is obviously involved in hostilities. The legal justification for them has also been the authorization of military force. The number of drone missions over the past 17 years shows no clear trends. The lethal use of drones stands paradigmatically for the normalization of extraordinary methods in the war on terror.
Initially, the CIA conducted drone operations under strict secrecy as covert operations. The US government long maintained its policy of not officially acknowledging such operations, even though they had long been an open secret, reported by the media, and sometimes confirmed anonymously by government officials.
More recently, the government has officially admitted to the use of drones for targeted killings. Most recently, President Trump announced that he would relax the guidelines for drone strikes. The legal and administrative basis for targeted killings has been repeatedly modified. Technological progress led to a growing reliance on unmanned aerial vehicles.
This helped to compensate for the lack of human intelligence on Al-Qaeda. They are controlled remotely from military bases within the US, so there is no risk of US troop losses. As more and more drones became available, the number of such attacks rose sharply. The number of drone strikes reached a temporary peak in Drone strikes frequently took place in Pakistan, whose border region with Afghanistan serves as a retreat for fighters of Al-Qaeda and the Taliban.
According to the Long War Journal , more than air strikes took place in Yemen in Therefore, Washington did not have to publicly defend its policy or take responsibility for civilian victims. Under Obama, the number of drone strikes initially continued to increase. In , Obama restricted the conditions for such operations in presidential policy guidance.
At times he declared them areas of active combat and thus relaxed the standard for the use of drones ; at other times he lifted this designation again.
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By failing to intervene, the legislature and the judiciary de facto gave the president the opportunity to add more and more groups to the list of associated forces. According to press reports, President Trump has relaxed the rules of engagement. Operations also no longer need to be approved by high-ranking members of the US government. He is thinking about allowing the CIA to carry out drone missions once again, even in areas of active hostilities.
If the reports are correct, the measures will probably lead to an overall increase in air strikes and, inevitably, to more civilian casualties. Trump is now using the flexible legal framework that the executive branch initially claimed under Bush for a more aggressive policy. However, the war on terror has no such clear end.
The establishment of the National Security Council led to the prioritization of security considerations in the executive decision-making process. The executive branch, whose powers are enumerated only after Congress in the Constitution, was elevated in status and became the guardian of national security in charge of a newly established apparatus. The resulting web of organizations and agencies raises questions of coordination and control.
Beyond that, the various organizations each report to their respective departments. The fact that the rule of law has effectively been suspended supports the argument that this situation constituted a state of exception. By declaring suspects unlawful combatants, they are denied basic human rights. As described above, the Obama administration had put those measures it wanted to continue on a more solid legal footing.
Despite all course corrections and new regulations, essential elements of the original state of emergency have gradually been institutionalized and become part of the new normal. This applies in particular to the war paradigm, the claim to executive power, and the excessive use of secrecy. In principle, the separation of powers also applies in the fight against terrorism, and since the reforms of the s, Congress has had relatively far-reaching oversight powers. Even if there are indications of misconduct, for example if intelligence agencies do not tell the truth, members of Congress cannot simply go public.
On the other hand, the CIA seems to have laxer rules on covert operations that violate the sovereignty of other states. A congressional investigation accuses the CIA of misleading those elected to provide oversight. The battle between the Senate and the CIA over the torture report. Both the processes and the results of this review have since become the subject of a fierce dispute between the Committee and the CIA. After lengthy negotiations, the CIA granted Committee representatives access to 6. At least twice in , it also deleted other documents that it had previously made available to the Committee from the file system.
CIA staff also searched the computer drives on which Committee staff kept their own work results. When this came to the attention of the Committee chair on January 15, , CIA Director John Brennan first denied the allegations, before admitting a few months later that the searches had taken place. The CIA, in turn, reported Committee staff to the FBI, accusing it of illegally accessing documents and removing them from the facility. Attorney General Eric Holder did not take sides in the conflict and announced in July that he would not take action against either the CIA or the Committee staff.
When a specially created Committee decided not to hold anyone in the CIA accountable for the events, Buckley resigned in protest. The Committee succeeded in publishing a page, only slightly redacted summary of the report. It described in detail the origins and the cruelties of the interrogation program. According to the report, even executive decision-makers were not kept fully in the loop. To protect its secrets, the government increasingly took action against those who passed information to the press. He partly attributes to this development the fact that NSA surveillance was not uncovered before the Snowden leaks.
In the first such case during the Trump administration, NSA contractor Reality Winner was recently sentenced to 63 months in prison for passing on a classified document to a media outlet. Again, she was charged under the Espionage Act, even though the leaked information was redacted before publication. The likely reason was that the Obama administration did not want to antagonize the intelligence community. Nevertheless, foregoing any accountability has caused permanent damage to the norm outlawing torture, even after the problematic practices were ended.
The advocacy of torture remains an acceptable position in mainstream discourse. During the election campaign, the majority of Republican candidates advocated reintroducing them. In the Trump era, the US war on terrorism does not seem to be the most pressing issue on the transatlantic agenda. However, it is a phenomenon that is not limited to one president or one party. The limited successes in this war so far have been primarily tactical. Policies introduced for exceptional situations have become the standard.
That there is no end in sight to this war is also due to the fact that Congress has allowed the executive to extend its methods to ever-new groups and territories. Since then, there have been debates as to whether a new legal basis is necessary because the situation has evolved. Paradoxically, some of the drafts now under discussion, which seek to adapt and renew the authorization of military force, are even broader in scope. In discourse about national security, the terrorist threat is now being overshadowed by new challenges.
However, this does not mean the end of the war against terrorism, which to some degree has always taken place in the shadows. New challenges will certainly lead to adjustments. However, the new type of anti-terrorism fight can be conducted with fewer resources, partly because armed drones are a comparatively cheap instrument. The number of US troops active in Niger has grown from 40 soldiers in to around at present. With regard to future geopolitical conflicts with China and Russia, Western democracies have done themselves no favors by normalizing behavior that violates long-standing norms.
The idea of integrating other states — and in particular emerging powers — into existing norms and legal systems suffers when one can be charged with hypocrisy. There are plenty of examples of this dynamic. Of course, the global commitment to human rights and the rule of law suffers the most. President Trump has repeatedly stated publicly that human rights are no longer a priority for US foreign policy. He has thus adjusted his declaratory policy to more closely resemble the actual practice.
However, the war on terror, conducted outside of the traditional normative framework, would be a major obstacle. If European governments wish to maintain human rights advocacy as a foreign policy goal, they should not be silent in the face of violations. This has now largely ceased. In any case, little of what prompted the initial criticism has changed.
It also carries the risk of a return to even worse episodes in the war on terrorism.
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Even in the best hands, too much power creates potential for abuse. During his election campaign, he also said he would not only go after terrorists, but also their families. Richard F. Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated. See Jack L. Goldsmith, The Terror Presidency , 85f.
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As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The Road to Abu Ghraib , ed. Karen J. Greenberg and Joshua L. To this day, there is no official public account of these activities. This study is based on this range of sources. See James M. Dana Priest and William M. Arkin, Top Secret America. Jeremy Scahill, Dirty Wars. Mark Danner et al. Charlie Savage, Power Wars. Taft IV had contradicted this assessment.
On the controversy over the applicability of the Geneva Conventions, see the memoranda of the relevant actors in The Torture Papers , ed. The Memorandum of Notification itself is still classified. Greenberg and Dratel see note During waterboarding, the prisoner is tied to a board and his nose and mouth are covered with a cloth on which water is poured.
When the subject tries to breathe, water slowly enters the lungs. However, the only aspect of it that can be called simulation is that the process is interrupted before the subject suffocates. CIA interrogation protocols show that Abu Zubaydah had to be reanimated after one of the multiple waterboarding sessions he had to endure. Morell with Harlow, The Great War of Our Time [see note 15 ], claims that these were the only cases, and that the technique was last employed in , and after it was was no longer authorized. Greenberg and Dratel see note 11 , ff. Fay Fay-Jones Report , August Custody in Iraq and Afghanistan , ed.
As his questioning proceeded, it became clear that he had received training on how to resist interrogation. The Obama administration has continued to use the law and technology to eavesdrop on terror suspects and to disrupt terror networks. In fact, President Obama is pushing to expand on the law to force telecommunications companies to allow their networks to be monitored and make sure their technology does not interrupt such surveillance. In May , three provisions of the law scheduled to expire were extended: the use of "roving wiretaps" to follow individuals when they switch phone numbers or carriers; investigators may obtain court orders to search business records of an individual for "any tangible things" related to an inquiry; and officials have the authority to conduct surveillance on foreign individuals suspected of having ties to terrorist groups.
Former Pennsylvania governor Tom Ridge was the first to serve in the position. He was tasked with coordinating a national strategy to safeguard the country against terrorism.
The DHS united 22 agencies and , workers in the biggest government reorganization in more than 50 years. Ridge introduced the color-coded Homeland Security Advisory System scale, which ranged from low to severe risk of a terrorist attack and advised local, state, and national agencies on what measures to implement to prevent an attack. The alert system--frequently mocked as being unwieldy, confusing, and vague--was replaced in April with the National Terrorism Advisory System NTAS , which has two levels, "elevated" and "imminent.
The Department of Homeland Security issued a progress report in outlining the steps it has taken based on recommendations of the September 11 Commission to protect the country against another terrorist attack.
The report noted the following accomplishments:. The report also stated what was already widely assumed: that terrorists continue to become more sophisticated and their tactics evolve as do the technology and safeguards intended to thwart them. To be effective, the nation's counterterrorism program must stay a step ahead of the potential attackers and not simply react. In Nov. Such tribunals permitted the admission of hearsay and evidence obtained under coercion, and allowed secret evidence that would be shown to the jury but not the defendant.
In addition, the defendant could be excluded from portions of his own trial. Critics of the tribunals pointed out that this suspension of due process goes against the very principles that the U. Bush's controversial decision to classify detainees in the war in Afghanistan as enemy combatants, and not as prisoners of war subject to the Geneva Conventions, meant the U. White House Council Alberto Gonzales maintained that terrorism was "a new kind of war" that rendered portions of the Geneva Conventions "quaint.
In June , in Hamdan v. The Supreme Court ruled that the administration's failure to obtain congressional approval for the military tribunals rendered them unconstitutional. It was the most significant ruling regarding the limitations of presidential powers since Watergate.
As designed, the administration's plan for tribunals omitted many of the safeguards of a military trial. A major setback to the president's assertion of wide-ranging wartime powers, the ruling left President Bush with two options: adhere to the rules of existing military courts-martial or ask Congress to change the laws. Administration-backed legislation containing essentially the same provisions struck down in Hamdan was submitted to Congress in late summer A number of moderate Republicans joined Democrats in attempting to modify the legislation, arguing that failure to abide by the Geneva Conventions would damage America's standing in the world.
But in the final draft, the president achieved most of what he sought, including the ability to unilaterally reinterpret the Geneva Conventions. He, however, did not rule out the use of tribunals, saying he would review the Bush administration's policies on handling detainees. His decision followed legislation passed in that prevents prisoners from being transferred from the prison to the U. One detainee who will face a tribunal is Khalid Sheikh Mohammed, the alleged mastermind of the Sept.
Under pressure from officials in New York, U. In April , worldwide outrage followed the release of photos in the American media depicting the appalling physical abuse and sexual degradation of Iraqi prisoners at Abu Ghraib prison, which a U. In August, the Pentagon-sponsored Schlesinger report rejected the idea that the abuse was simply the work of a few aberrant soldiers, and asserted that there were "fundamental failures throughout all levels of command, from the soldiers on the ground to Central Command and to the Pentagon.
In , Congress passed the Detainee Treatment Act that banned "cruel, inhumane, or degrading treatment" of prisoners held in U. However, in July , President Bush signed an executive order giving CIA the authority to use a number of harsh interrogation methods, which are not allowed in military interrogations but have been determined by the Justice Department to comply with the Geneva Conventions, when questioning terrorism suspects. It was the president's first official acknowledgement of extraordinary rendition, the practice of transferring suspected terrorists to detention centers in foreign countries where U.
The Bush administration was rocked by scandal in December , when it was revealed that in the CIA destroyed videotapes of the interrogation of two al-Qaeda suspects, Abu Zubaydah and Abd al-Rahim al-Nashiri. The tapes, which included hundreds of hours of questioning, reportedly showed agency operatives using severe interrogation techniques, including waterboarding, which simulates drowning. Also in December, the Senate and House intelligence committees voted to outlaw all methods of interrogation that are banned in the Army Field Manual, which prohibits waterboarding.
The new U. The doctrine was strongly criticized by the UN and a number of world leaders, particularly France, Germany, and Russia, who were apprehensive about what they saw as the U. In February , the Obama administration revised the country's military strategy, expanding the focus to other areas of potential threats, including Asia and other parts of the Middle East. The National Military Strategy of the United States of America of recognizes a shift in geopolitical dynamics, toward coalitions built on shared ideology between and away from cold war alliances:.
The document outlines four goals: countering violent extremism, deterring and defeating aggression, strengthening international and regional security, and shaping the future military. Rather than acting alone and preemptively in the interest of self-defense, the new strategy states that the U. Obama supporters describe this policy as "leading from behind;" critics say that given the current global climate, the U. The U.