When he was at the helm of the Central Intelligence Agency, Michael Hayden was fond of comparing the laws that limit agency operations to the white sidelines of a football field. CIA agents should operate so close to legal boundaries, he remarked, that they get "chalk on their cleats."
Unfortunately, those chalk lines today are too faint for either intelligence officers or the public to see. Although Congress instituted intelligence reform in 2004, and a hallmark of President Barack Obama's first term has been his aggressive approach to fighting terrorism, there has never been a real debate in Congress or in the public square about the intersection of our values and our requirements for gathering intelligence.
The result is a hodgepodge of internally inconsistent policies, an outsized role for the courts in interpreting and, in some cases, striking down those policies, and huge gaps in what the public knows and has been told. Recent questions raised about the nature of the New York Police Department's surveillance of mosques are but one example.
In the absence of clear legal policies, those expected to implement them either become risk averse or feel enabled to commit abuses. Abu Ghraib and the more recent Quran burnings in Kabul are unfortunate cases in point. (While the awful Quran episode may have had more to do with cultural insensitivity than intelligence gathering, have we really learned nothing in ten years in Afghanistan?)
One of the biggest reasons for this lack of progress is Congress's ongoing and exquisite dysfunction. The toxic paradigm of finger-pointing instead of bipartisan problem-solving has created almost total legislative gridlock. What passes for serious debate occurs within a tiny bandwidth, leaving scant chance to raise the tough issues -- let alone resolve them during this heated election year.
Discussion of these issues must be high on the agenda for the next president, no matter who he (gender seems the only given at this point) may be. America's leaders have an obligation -- indeed, a very heavy burden -- to tackle them.
Here are four that should get top priority:
1. The prison at Guantánamo Bay.
The Guantánamo Bay prison, where people were initially placed in wire cages resembling large chicken coops, has evolved into a state-of-the-art facility -- at a cost of $150 million per year. It's ironic that much of the inmate hierarchy and command structure developed when barbed wire cages permitted free communication -- and that none of the subsequent "improvements" has been able to disrupt that.
Although President Obama signed Executive Order 13492 to close the prison within his first year in office, the issue proved to be much tougher than he and his team anticipated. Files on individual inmates were incomplete and in many cases the "evidence tree" could not be rebuilt and was therefore inadmissible in federal court.
The House and Senate also stymied the president's original intent by blocking transfer of any of the 171 remaining prisoners to the United States for civilian trials. Congress first spooked itself and then launched a politically expedient campaign to scare the American people by invoking visions of grisly terrorist killers wandering around their neighborhoods. It's the Willie Horton ad campaign all over again.
This ironically bipartisan misbehavior leaves military justice as the only way to clear the backlog of prisoners. Yet military courts have secured only a handful of convictions since 9/11. In contrast, more than 400 terrorists have been convicted in Article III federal courts and are now serving long -- sometimes life -- sentences in federal supermax prisons.
Still, the tough questions remain on hold. For Gitmo's so-called "Final 50" detainees, where there is inadequate evidence to charge and try them but real concerns about the danger of releasing them -- even to other countries willing to accept them -- is the answer to let them go free? And, if not, does "preventive detention" square with the Constitution and American values? Should the Geneva Conventions -- which specify procedures for capture and imprisonment of enemy combatants -- be updated?
2. The blurred line between domestic and foreign intelligence.
After 9/11, the law enforcement community -- from state and local police to federal agencies and even a few private security contractors -- understandably sought to expand their capabilities to thwart terror attacks. A few police departments in this country began to operate far outside traditional jurisdictional borders, even sending officers to the Middle East.
It is true that state and local police -- our cops on the beat -- are more likely to identify and disrupt the next terror plot than a bureaucrat in Washington. And there have been many successes, including the plot uncovered in 2005 to target synagogues and military recruiting offices in my former congressional district in California. But there needs to be a clear framework for law enforcement to work within, and that conversation needs to take place now.
While few disagree on the need for such a discussion, the tortured history of the Violent Radicalization and Homegrown Terrorism Prevention Act -- legislation aimed at better understanding the "tipping point" between using constitutionally protected violent language and committing an illegal violent act -- illustrates interesting obstacles still in place. That act passed the House twice -- nearly unanimously each time. It was deliberately narrow in scope and would have done nothing more than create a nonpartisan commission to study radicalization and homegrown terrorism and then report to Congress. But certain privacy and civil liberties groups (many of which had been in the room when the bill was being drafted) attacked the act and those who voted for it, arguing it was a slippery slope and killing the bill before it ever came to a vote in the Senate. And so the legislative branch proceeds, without tools.
3. Kill switch hype.
Several high-profile events over the past few years -- from the infiltration of the Pentagon's $300 billion Joint Strike Fighter program to the Stuxnet worm that cut through Iran's industrial controls system -- highlight the complex threat of cyberattacks to governments. But the recent hacking of companies like Google and five major energy firms reveals how easy it can be to attack the private sector as well.
Many underestimate the role of the private sector in our nation's cybersecurity. In fact, it is the private sector that controls most of the infrastructure in this country. That's why we need to get industry and government in the same room to agree on meaningful protective measures and overcome big challenges such as the protection of proprietary data and uniformity to avoid competitive disadvantage.
Like so many other issues, cybersecurity has become too politicized. As a result, we still lack consensus about how much authority the government needs in the case of a cyber emergency. Outside groups have scared everyone with the idea of a "kill switch," which would allow the president, in extreme circumstances, to shut down the entire Internet.
"Kill switch" hype prevents more serious debate about cybersecurity. Congress and the White House have ducked some of the toughest issues, which means that the Internet, the electrical grid, and the aircraft control networks are all vulnerable -- and so is an under-informed public.
4. Targeted killings of Americans.
Targeted killing has been one of the most controversial components of President Obama's war on terror. Drone strikes in Pakistan, Yemen, and elsewhere have more than quintupled under his presidency. The use of such drones is a key piece of our counterterrorism strategy, but, as on the domestic side, its purposes must be transparent and publically debated.
Attorney General Eric Holder lifted some of the fog over this particular matter and provided a legal justification consistent with American laws and values in a speech at Northwestern University last week. Though he declined to address specific cases, Holder offered a detailed rationale for killing U.S. citizens abroad that includes an imminent threat to the United States, the danger of the person in question escaping, or the inability to capture that person alive.
Select members of Congress have most likely seen the complete legal justification, and the CIA took a positive step by pushing to make the reasoning public. Congress and the American people deserve to -- need to -- understand the legal rationale behind these strikes and to debate their appropriateness.
Our failure to address and one day solve these truly complex issues has consequences, and they are very serious. Kicking the can down the road means that our adversaries can exploit us and claim that we "disappear" people and ignore the rule of law. They can frame us as hypocrites and continue to use Gitmo and Abu Ghraib as recruiting tools for the next generation of terrorists.
We have to win the argument with this next generation, and the only way to do that is to live our values, face the tough issues, and build public support around our best answers. It's time for the United States to lead by example and make our chalk lines bright enough for everyone to see.