While Republicans are rightly critical of President Obama’s mishandling of the terrorist threat, the GOP needs to do some introspection as well.
Two recent bills approved by Congressional Republicans – the USA Freedom Act and the Defense Authorization bill – tie the hands of our intelligence and national security professionals as they struggle to protect the American people from terrorist attacks.
Police vehicles line the street around a vehicle in which two suspects were shot following the mass shooting in San Bernardino, California December 2, 2015. REUTERS/Mike Blake.
The Republican Congress recently passed the USA Freedom Act, placing new restrictions on the NSA’s terrorist surveillance capabilities. Now, the Associated Press reports:
The U.S. government’s ability to review and analyze five years’ worth of telephone records for the married couple blamed in the deadly shootings in California lapsed just four days earlier when the National Security Agency’s controversial mass surveillance program was formally shut down. Under a court order, those historical calling records at the NSA are now off-limits to agents running the FBI terrorism investigation even with a warrant.
Instead, under the new USA Freedom Act, authorities were able to obtain roughly two years’ worth of calling records directly from the phone companies of the married couple blamed in the attack. The period covered the entire time that the wife, Tashfeen Malik, lived in the United States, although her husband, Syed Farook, had been here much longer….
Under a shutdown order by the Foreign Intelligence Surveillance Court, the government was prohibited from collecting phone records in wholesale ways starting Nov. 29.
“After November 28, 2015, no access to the BR (business record) metadata (phone records) will be permitted for intelligence analysis purposes,” U.S. District Judge Michael W. Mosman of Portland ruled. “Hence, queries of the BR metadata for the purpose of obtaining foreign intelligence information will no longer be permitted.”
The California shootings happened four days later. The court revealed the order publicly just hours before the shootings.
Under the new law, passed in June, investigators still can look for links in phone records but they must obtain a targeted warrant to get them directly from phone companies, which generally keep customer records for 18 months to two years, although some keep them longer.
That’s bad enough, but there’s more. Congress also just passed, and the president signed, a Defense Authorization Bill which codifies Obama’s executive order requiring all terrorist interrogations follow the Army Field Manual.
The Army Field Manual is the highest, most restrictive form of custodial interrogation there is. It is intended for privileged Prisoners of War, not unlawful combatants who violate the laws of war and use terror to target and kill innocent civilians. This means that the next time the United States captures a senior ISIS or al Qaeda leader, our intelligence officers will be barred from using not only “enhanced interrogation techniques” but even lawful interrogation techniques used every day by police departments and district attorneys questioning criminals for bread and butter crimes.
For example, federal prosecutors regularly remind criminals that life is a lot safer in a federal penitentiary than it is on Rikers Island, so they might want to plead guilty to a federal crime and avoid being violated by other prisoners. And district attorneys regularly tell criminals that they have committed a capital crime punishable by death, but if they cooperate they’ll seek life in prison instead. Under the Army Field Manual you can’t do that to a terrorist. There are documented cases of FBI agents at Guantanamo Bay refusing to tell terrorists they have committed a capital crime, because under the Army Field Manual you can’t threaten a prisoner in any way.
Until now, those restrictions were part of an executive order, reversible by the next president. Now, thanks to the GOP Congress, they are the law of the land.
Both of these provisions – which have the GOP seal of approval – tie the hands of our intelligence community, and will make it harder for them to detect and prevent future attacks.
So yes, Republicans are right to chastise the president for his mishandling of the terrorist threat. But if and when the next terrorist attack happens, the result might not be solely Obama’s fault. The GOP has tied our intelligence community’s hands as well – and the hands of whichever president succeeds Barack Obama.
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