February 13, 2008 | Commentary on National Security and Defense

House Does Terrorism Tap Dance

The day after the Pentagon announced it would be charging six of the detainees held at Guantanamo Bay with crimes (including plotting the 9/11 strikes on Washington and New York), the congressional House leadership signaled again that it wants to push off legislation authorizing the terrorist surveillance program used to prevent future attacks. Even more frustrating, the House continues to dither even after the Senate finally and handily passed its version, The Protect America Act, on a bi-partisan vote.

The Defense Department's declaration that it plans to put six suspected members of al Qaeda on trial serves to remind Americans that we're in a Long War -- that we have enemies trying to kill us and that our government must stop them. The framers of the Constitution put the phrase "provide for the common defense" in the preamble for a reason. Defending America is our government's first obligation. And because we also expect government to safeguard our liberties, that means Washington must fight and win our wars by the rule of law.

Indeed, respecting and upholding the laws of the nation is an integral part of winning the Long War. Protecting individual freedoms is what makes wars worth fighting for. It's also an important part of winning the war of ideas. When America shows it can fight and win by protecting liberty and respecting law, it demonstrates the fundamental and enduring strengths of a free society.

The government's intention to try the alleged-terrorists at Guantanamo demonstrates that Washington wants to win the Long War the right way. The accused will be tried under the Military Commissions Act of 2006. Passed by large majorities in both chambers and signed it into law by the president on Oct. 17, 2006, the law set up courts modeled after the Uniform Code of Military Justice -- the code the U.S. military uses to try soldiers, sailors, airmen and Marines.  The court provides unprecedented rights to alien unlawful enemy combatants at trial. The commissions provide the accused virtually the same due process and rights the United Nations provides in its war crimes tribunals, such as the International Criminal Tribunal of Yugoslavia and the International Criminal Tribunal of Rwanda. 

While the Pentagon deals with enemies already under detention, the House is ignoring its responsibility to help deter future attacks. Rather than simply pass the Protect America Act, House leaders want to just grant another temporary extension of surveillance authorities -- even though they've been debating for six months.

More temporary extensions just aren't good enough. It puts intelligence-gatherers in an impossible situation: They must try to guess what sort of legislation Congress will pass, and act accordingly. If they guess incorrectly, they'll have wasted hundreds of hours of work per warrant application and potentially delay investigations by weeks or months.

The men and women trying to make us safe should not have to fight al Qaeda and congressional uncertainty. Congress must make the authorities in the Protect America Act permanent. Now.

James Jay Carafano is Senior Research Fellow for National Security and Homeland Security in the Allison Center for Foreign Policy Studies at The Heritage Foundation.

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow