In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba. Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States. President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:
[This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must beamong the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.
The congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released. This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.
Reviewing Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism by Stewart A. Baker
“Stewart Baker has written an enthralling, yet alarming, account of the difficult road we as country have traveled since 9/11.1 Part memoir of a veteran senior government official, part lesson in interdepartmental infighting and bureaucratic power games, part philosophical musing on technology’s benefits and potential costs, and part vigorous advocacy enlivened by saucy humor and snappy prose, Baker’s book summons us to think hard about how new technologies – air travel, computer functionality, biotechnology – jeopardize our lives and our way of life even as they also promise to brighten our futures.”
During the last two years of the Bush administration, the senior leadership at the U.S. Department of Homeland Security (DHS) spent substantial time and effort in first helping to craft, and then attempting to implement, Homeland Security Presidential Directive 23/National Security Presidential Directive 54 (HSPD 23/NSPD 54), Cyber Security and Monitoring.
On May 29, 2009, President Obama released his Cyberspace Policy Review (the Review). The Review, conducted by the National Security Council and the Homeland Security Council, examined existing government initiatives addressing cyberspace security in order to develop a strategic framework to coordinate government action. The Review put cybersecurity on the policy agenda early in the Obama administration, and it explicitly describes cybersecurity as a global issue that calls for international cooperation: “The United States . . . needs a strategy for cybersecurity designed to shape the international environment and bring like-minded nations together on a host of issues… Only by working with international partners can the United States best address these challenges, enhance cybersecurity, and reap the full benefits of the digital age.”
On February 9, 2009, President Obama gave his National Security and Homeland Security Advisors 60 days to conduct a Cyberspace Policy Review.1 The stated purpose of this “60-Day Review” was to provide a comprehensive assessment of U.S. policies for cybersecurity.2 According to a White House press release, the review would “develop a strategic framework to ensure that U.S. Government cyber security initiatives are appropriately integrated, resourced and coordinated with Congress and the private sector.”3
The 60-Day Review was an ambitious project and, in the end, took more than 60 days to complete.4 When the final report was issued on May 29, 2009, it offered a careful assessment of the current situation and a broad vision of what the United States must accomplish to secure our digital future. This vision, however, was not fundamentally different from previous iterations of cybersecurity strategy that the U.S. government has issued over the past 12 years.
The 60-Day Review undoubtedly represents a critical step toward addressing the many challenges the United States faces in working to secure its public and private information systems. However, it is important to place this document in proper context and understand what it accomplishes and what business it leaves unfinished. Before much progress can be made in improving cybersecurity, there are some tough policy decisions that have to be made.
The 60-Day Review does not take on many of those decisions. Rather, it provides an accurate and troubling picture of what the country is up against. It offers a glimpse of the daunting but important tasks of trying to harmonize the cybersecurity programs within government, establishing an effective partnership with the private sector, and developing strong relationships with other nations to combat cyber crime. It recommends…