07/24/2013 02:53 pm ET Updated Sep 23, 2013

What Terror Requires

The scandal surrounding the National Security Agency's surveillance program has given way to a global game of where will Snowden find asylum? Politically this is good news for the Obama administration, as the American public has concerned itself more with Snowden, the fugitive, than with the substance of what he revealed, though it's beginning to be discussed more.

If Snowden is a threat to U.S. security, he is a second-order one. By his actions, he has exposed a national security program designed, we are told, to address the primary threat, terrorism. And that is what this scandal is about: terror and what it requires of a democracy.

This is apparent in the administration's defense of its surveillance program. On June 18, NSA Director Keith Alexander told Congress that NSA surveillance has helped thwart over 50 attacks since 9/11, a claim that Obama repeated the next day in Germany. The President also emphasized that the NSA's program is limited in scope. It does not snoop on Americans without a court order. And as Josh Earnest, the White House's deputy press secretary, argued, the program is governed by a "robust legal regime" and "subject to strict controls and procedures."

We have heard this before and recently, too. About a month ago, in his much discussed, national security speech, Obama assured the American public that the CIA's drone program is subject to "strong oversight" and involves the "narrow" targeting of "those who want to kill us."

These arguments are not Obama's alone. They are borrowed, nearly point for point, from the Bush administration's defense of "enhanced interrogation." In a 2006 speech on terrorism, Bush defended the CIA's use of "an alternative set of procedures" by describing, in gripping detail, the attacks thwarted by those procedures' use. Bush also asserted that, as Obama now does when defending drones and surveillance, "These procedures were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively, and determined them to be lawful."
These arguments are meant to weave each President's most controversial counter-terror programs back into the moral fabric of U.S. culture. But at their core, these arguments are empty, withholding as much as they reveal. They offer little insight into the legal foundations of "enhanced interrogation," targeted killings, or surveillance. In fact, Obama, like Bush before him, has been reluctant to release the documents that articulate the legal reasoning of his administration.

A president's assurance that a national security program has undergone legal review is not nothing, but it is not much. What we learned from the Bush administration's experiment with "enhanced interrogation" is that American lawyers and elected officials could review and approve even abject cruelty, finding a home for it in U.S. law. We also learned that, for all the talk of oversight and procedure, "enhanced interrogation" drifted towards extremes. Two detainees died while in CIA custody; CIA Interrogators used unauthorized practices on some detainees and used authorized practices in unauthorized ways on still others. Despite Obama's assurances to the contrary, it is an open question of whether the CIA's drone program and the NSA's surveillance program have experienced similar excesses and abuses.

Since its inception, the "war on terror" has been characterized by covert programs at the fringes of domestic and international law. Obama, though seemingly committed to winding down this type of war, clearly believes that such programs remain necessary. And yet the President can still profoundly alter the politics of terror in the U.S. by releasing his administration's legal reasoning on drones and surveillance and by publicly engaging Congress on these programs. Admittedly, this would be a change of style more than substance. Drones would still kill. The NSA would still snoop. But the point would be for the administration to make a two-fold case to the public: while terror requires such controversial programs, it does not require that those programs exist on the "dark side," to borrow former Vice President Dick Cheney's well-worn phrase, of democracy.