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Transparency a casualty in the war on terror

Administration, Congress show troubling disregard for liberties

It’s not hard, with our nation debating gun control, to find some Second Amendment supporter fretting about losing hypothetical weapons that might theoretically be needed someday against a tyrannical U.S. government. But again and again in the past month, Americans have been quiet about some very real dents in their civil liberties.

First, in December, the Senate passed a five-year extension of the 2008 amendments to the Foreign Intelligence Surveillance Act. Those amendments allow U.S. intelligence agencies to monitor, without a warrant, international communications in and out of the U.S. by non-citizens, even if those communications are with U.S. citizens.

The practice began in the Bush administration and was given a nod of approval by the 2008 amendments. Congress, then and now, has been willing to take the CIA at its word that it’s not using the practice as a way to monitor domestic communications. This time around, Congress declined to even debate a new amendment that would have at least required disclosure of how many U.S. citizens got caught up in the monitoring of communications. President Obama signed the five-year extension just before the New Year.

Last week, Obama also signed the 2013 National Defense Authorization Act, which failed to clear up whether the U.S. can indefinitely hold citizens arrested in this country and accused of terrorism. One amendment to the act would have made such detentions illegal without an act of Congress, but that was taken out of from the legislation. Obama, who vowed last year that his administration would never authorize those detentions, missed a chance to make that promise a law for future presidents to follow, too.

Finally last week, a federal judge reluctantly ruled that the administration isn’t required to release a Justice Department memo explaining the legal rationale behind the 2011 drone attack killings of American-born al-Qaida operative Anwar al-Awlaki and Samir Khan, an American who lived in Charlotte before moving to Yemen to produce an al-Qaida magazine.

Attorney General Eric Holder has said targeted killings of U.S. citizens are legal if that citizen poses “an immediate threat of violent attack against the United States” and “capture is not feasible.” What Holder hasn’t said is how Justice attorneys arrived at these conclusions.

U.S. District Judge Colleen McMahon agreed that the administration didn’t have to explain, but she made the ruling while holding her nose. “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful actions that seem on their face incompatible with our Constitution and laws,” she wrote.

McMahon is right, but do Americans care? So long as our soil seems safe from terrorism, we seem comfortable that the measures our government is taking are appropriate. And they might be. The administration may be sound in its legal rationale for the drone killings, and the monitoring of citizens’ communications might be an inadvertent but necessary tool to fight terrorism.

What should trouble Americans is that their leaders don’t feel the need to make those justifications transparent or, in the case of intercepted communications, participate in the checks and balances that ensure good governmental behavior.

The Bush administration, with its secret and flawed rationale on torturing terrorists, showed us the danger of ignoring transparency. It remains a bad precedent, not necessarily because the administration is going too far in the fight against terrorism, but because it requires all of us to simply trust that future presidents will protect our liberties, not just our soil.

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