Constitution Daily

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The Constitution in 2014: The war on terrorism

December 24, 2013 by Lyle Denniston


In a five-part series, Lyle Denniston looks ahead to likely developments in 2014 on major constitutional issues.  Later articles will deal with abortion, health care, same-sex marriage, and elections.

More than 12 years after the terrorist attacks on the United States on September 11, 2001, the constitutional side of the federal government’s war on terrorism still raises many unanswered questions: Will the war crimes cases against the 9/11 suspects ever reach a verdict?  Will President Obama’s plan to close the detention camp at Guantanamo Bay, Cuba, ever happen?  Will the planned end of an active U.S. military role in Afghanistan make a difference to the prisoners held in a prison near Kabul?  Will the government’s massive, global collection of telephone calling data, in pursuit of leads to terrorists, be restricted, either by the courts or by Congress, or both?

The courts, from the Supreme Court on down, will play a central role in moving toward answers to each of these questions, but there will be other central actors, too.  By the end of 2014, the constitutional landscape may have changed markedly from what it was on New Year’s Day.

By all measures, the one response to the 9/11 terrorist assaults on American soil that has come close to total failure is the attempt – first by the Bush Administration and then by the Obama Administration – to create a functioning war crimes tribunal system to “bring to justice” those charged with responsibility for planning the attacks.

As the new year opens, it is still not clear when a military commission at Guantanamo will actually get started on the trial of five men – led by Khalid Sheikh Mohammed – who stand accused by the military of planning and supervising the 9/11 attacks.  The proceedings have bogged down repeatedly, and no amount of legal tinkering seems to move them forward to any significant degree.

The shape of that trial, should it ever get under way, may be influenced by a forthcoming decision by the federal appeals court in Washington, D.C., that could put some limits on the kinds of war crimes that may be pursued by military commissions – especially, settling whether acts that occurred before Congress created some of the specific war crimes can be the basis for charges now without violating the Constitution’s ban on retroactive criminal punishment (the Ex Post Facto Clause).

The same appeals court will also continue to decide significant cases about the scope of the rights of individuals being held captive at Guantanamo but without being charged with any crime.  The arrival on that appeals court of new appointees by President Obama may shift the balance on a court that, up to now, has been deeply skeptical to rights claims by those imprisoned at Guantanamo.

It has been more than five years since the Supreme Court put some constitutional limits on the President’s detention power, but there is a chance it could be drawn back into the whole question of long-term detention.  That could affect not only Guantanamo, but scores of prisoners being held under U.S. military control at Bagram air base near Kabul, Afghanistan. ‘The Bagram prisoners’ fate has become even less clear as the U.S. military moves toward a complete withdrawal from the Afghan conflict.

Congress is beginning to think about relaxing some of the tight restrictions it has placed upon the President’s power to decide when to free any individual who has been detained, at Guatanamo, Bagram, or elsewhere.  Only it if actually does ease some of those restraints is the President likely to be able to move toward actually closing the facility on a U.S. Navy base in Cuba – a goal he set for himself early in his time in office.  The Afghan prison is in the process of being transferred to the host country government, but the effect of that on prisoners the U.S. holds – especially, non-Afghan detainees – is uncertain.

One way to give the President some flexibility would be to permit the government to bring those who are going to be charged with crimes related to terrorism to the U.S. mainland for trials.  There has been some talk of a plan to hold a military commission trial within the U.S., but the opportunity to do so may depend upon how Congress reacts to the idea.

The most profound constitutional change that could affect the government’s campaign against terrorism could come in the form of new limits on its power to use highly sophisticated new technology to monitor telephone and other communications traffic that might turn up leads to potential terrorists.  A federal judge’s recent decision forecasting the nullification of the National Security Agency’s gathering of calling data generated by virtually everyone on in America may be only the first move toward new restraints.

President Obama is scheduled to make known, in January, what if anything he plans to do about a series of recommendations just made to him by a formal study group to pare down the NSA’s “metadata” programs in order to restore more privacy for American users of telephones, cellphones, and other communications devices.

Congress, also, is studying possible ways to curb the NSA’s reach, and the President, as well as the intelligence community, may not be able to fend off entirely those efforts.

Constitutionally speaking, the year 2014 may bring profound alterations in the way that the government summons its legal machinery to continue confronting the global threat of terrorism.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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