By Ritika Singh and Benjamin Wittes
Political parties in the United States, like a spatting couple in a bad marriage, have been fighting over the law of counterterrorism for more than a decade. And like the spatting couple, they have developed an almost rote script for their fight. The script has a logic of its own. It is a comfortable one for both spouses—and the fight is soothing in its own way. Republicans and Democrats alike wrap up some portion of their party’s identity and self-image in the conflict over national-security policy. The fight gives each side the impression—and the confidence—that the other endangers America. And it gives each side something to tell voters about why they should vote one way rather than another.
Rule-of-Law Party vs. Party of Security
You already know the script: Democrats see themselves as the rule-of-law party, concerned to restore America’s moral standing in the eyes of the world and to curtail the excesses of the Bush administration. In their rhetorical world, they defend human rights and compliance with international law from the dangerous unilateralists of the right. While the other side is full of cowboys, Democrats work through multilateral institutions. They believe in federal courts. They don’t shred the Constitution.
Conversely, Republicans see themselves as the party of security, committed to the law-of-war paradigm and to muscular uses of American power in pursuit of it. In their rhetorical world, trying terrorists in federal courts—even showing basic solicitude for detainees—makes America less safe and reveals a weak-kneed willingness to return to a pre-9/11 law-enforcement mentality. They believe in interrogating the enemy. They don’t do habeas corpus.
Masking a Lot of Common Ground
The script, at this point, is largely nonsense, masking a remarkable common ground between the parties on the legal and policy issues surrounding terrorism. Like the couple that bickers over trivial matters while sharing attitudes on nearly all the important issues facing their family, the two major political parties have converged on the substance of many of the key questions while continuing to speak in the public domain as though a great gulf separates them.
This is not to say there are no differences between the parties on these issues. There are. But the differences have become subtle—even as the rhetoric has not. Issues that deeply divided the country as recently as four years ago have become matters of consensus, if not in the country at large, certainly in those parts of both political parties that will control the federal government under either Barack Obama or Mitt Romney.
This convergence creates anxieties on both left and right—on one side because it involves the institutionalization and legitimization of tactics like drone strikes and noncriminal detention that many people are uncomfortable with, and on the other side because it involves tempering the use of these tactics and the imposition of judicial review over wartime conduct. Both sets of anxieties have merit, but the convergence is nonetheless a great thing—it is a reflection of how much more sophisticated the American political system is in operation than in rhetoric. What’s more, whether we like the convergence or not, it is likely to continue whether President Obama gets re-elected or Mitt Romney takes his place.
Consider how the candidates would actually handle the major disputes over which the parties have fought:
Neither President Obama nor Mitt Romney will close Guantánamo Bay. Obama continues to insist that his policy involves closing the detention facility at the naval base. Yet Guantánamo is going nowhere—and Obama knows it. He has not convinced Congress to let him use another facility to hold detainees, and he has identified a group of Guantánamo detainees whom he means to continue detaining somewhere. Furthermore, as the withdrawal from Afghanistan accelerates and the Bagram Air Base is no longer available to hold enemy belligerents, the need for some detention facility may become more acute. Mitt Romney, meanwhile, has promised to keep Guantánamo up and running. So the debate today over Guantánamo’s future is between a vestigial and by-now-empty promise and open acceptance of the status quo.
Both parties will use a combination of federal courts and military commissions to try suspected terrorists. Republicans love military commissions and Democrats love federal courts. But in practice, both spouses drive both cars. The Obama administration faced congressional obstruction and public outrage over its efforts to try the alleged 9/11 conspirators in federal court in New York City, and Mitt Romney, along with the other Republican presidential candidates, attacked the president for giving terrorists access to the constitutional rights of the domestic criminal-justice system. But while Obama has talked eloquently about his admiration for that system, and clearly prefers it, his administration also put a lot of energy into revamping the law authorizing military commissions—hardly a signal of abandoning the process. And when Congress prevented the New York trial, the Obama administration went ahead with the 9/11 case in a commission, and made a significant investment in the commission process. Conversely, there is no chance at all that a President Romney would jettison the aggressive use of the domestic criminal-justice apparatus for major terrorism cases. The practical and political realities in fact necessitate the use of both military commissions and Article III courts.
Both Continue Targeting Al Qaeda
Democrats and Republicans will both continue targeting Al Qaeda operatives with drones and special forces. In many respects, Obama’s most consequential change to Bush-era terrorism policy was not his dialing back on detention and interrogation excesses but, ironically, his ramping up of drone strikes. Obama’s willingness to use lethal force against the enemy—including American citizens—has become one of his biggest national-security assets in this election year. He enjoys widespread public support for his use of drone strikes and for his other operational successes—including, most famously, the raid that killed Osama bin Laden. These successes have inoculated him against the normal Republican outflanking of a Democrat on defense and security matters. Romney, for his part, has repeatedly made clear that he too is enthusiastic about aggressively targeting the enemy. The courts have declined to get involved in reviewing targeted killing. And Congress does not appear concerned either—except to the extent that members want more. What’s more, targeted strikes may allow the United States to remain involved in countries after withdrawing from them, and they currently permit the occasional micro-projection of force into countries like Yemen and Somalia. So despite the anxieties of the human-rights community and civil libertarians, drones and other forms of targeted killing are a safe political bet for any president of either party.
Both parties have worked to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities. Mitt Romney has openly called for modernizing the decade-old statute that authorizes force against Al Qaeda and others responsible for the 9/11 attacks. And congressional Republicans moved last year to do this. The Obama administration has said it believes the current AUMF is fine, but it worked with Congress to institutionalize the AUMF’s authorization of indefinite detention during the passage of the 2011 National Defense Authorization Act. And it interprets the AUMF in such a way as to permit the use of lethal force against enemy groups in various countries.
Americans Still Debate Waterboarding
Neither party is likely to reinstate the Bush administration’s interrogation policies, and neither will create any mechanism of accountability for those responsible for the Bush-era interrogations. Although Romney joined the rest of the Republican presidential field in promising a return to enhanced-interrogation techniques, he is as unlikely to follow through as Obama is to close Guantánamo Bay. If he tries, he will unquestionably meet serious resistance from the CIA, which has no appetite for being hung out to dry once again. The military has even less desire to get involved in coercive interrogation. Although enhanced interrogation remains the area of the largest rhetorical gap between the parties, in practice, the gap had narrowed even by the time Obama took office. The CIA program was dormant by then, and the Pentagon had already rewritten the Army Field Manual to add additional clarity and flexibility without permitting coercion. Americans still debate waterboarding—but it has been almost a decade since Americans actually waterboarded anyone. And whether Obama or Romney is president, American forces are very unlikely to do it again anytime soon. Additionally, Obama’s tenure has shown that there is no prospect of prosecution of those who brought about the enhanced-interrogation program. Obama has largely stuck to his promise to look forward, not backward—at least with respect to those who stayed within the Justice Department’s legal opinions on interrogation—and Romney certainly will not take a different approach on this point.
Both parties have learned to love warrantless wiretapping. President Bush’s Terrorist Surveillance Program generated a firestorm of criticism, in part for substantive reasons, but in part because its unilateral, secret, executive origins put it in apparent tension with extant federal law. The current version of the program, by contrast, is authorized by Congress, and President Obama supports it. President Romney won’t take a different view. And while debate continues about the civil-liberties implications of the National Security Agency’s surveillance activities, the compromise that has emerged—a statutorily authorized program with various means of judicial, legislative, and executive oversight—has strong bipartisan support. It will continue no matter who controls the White House.
We could go on. But you get the point. Despite the instincts of each party to differentiate itself from the other, there is very little daylight between them anymore on the core questions of what powers the executive branch will wield against the enemy. The country’s political rhetoric—and occasionally fierce political combat—over national-security legal matters simply has not caught up with the broad bipartisan consensus that has developed on many of those issues. This consensus does not reflect many people’s specific moral judgments regarding the merits of the practices in question; relatively few people would draw the lines where our politics have settled. And legal and moral arguments can be made against every component of the settlement the two parties have reached. That is perhaps why the rhetoric has lagged. Yet while the old couple continues the same old argument, the kids have moved out and moved on. And we should be rolling our eyes over the theatrics. Φ
Benjamin Wittes is a Senior Fellow in Governance Studies at the Brookings Institution where he co-directs the Harvard Law School-Brookings Project on Security and Law.Ritika Singh is a research assistant on law and national security issues at the Brookings Institution. She graduated with majors in International Affairs and Government from Skidmore College in 2011, and wrote her thesis on Russia’s energy agenda in Europe and its strategic implications for America.