In their 9/11 piece "Ten Years On
," the Economist writes:
the Bush Administration rode roughshod over cherished civil liberties. Congress, the courts, and a new president eventually pushed back, but not all the way."
This is only partially correct, and misses the point.
The courts did push back on the Bush Administration's designs for Military Commissions, forcing the tribunals to approximate more closely the traditional criminal courts of the American Constitution. And President Obama did issue an Executive Order banning the use of 'enhanced' interrogation tactics often described as torture. But most of the retreat from Bush's rights-abusing policies was initiated by the security establishment itself because the policies did not work
The FBI, TSA, and ICE walked back from ethnic profiling policies because they caught no terrorists and alienated potentially useful collaborators. The CIA ended the 'enhanced' interrogation program in favor of better-performing methods. And, for every military prosecutor arguing for increased prerogatives for themselves and decreased due process for terror suspects, a military defense attorney has been fighting to defend Article III Constitutional rights on the grounds that they make our legal system more effective and more legitimate.
The Congress, for its part, has done precious little on any of these fronts. It has provided episodic and toothless oversight of executive counterterrorism programs, has greenlighted ineffective security policies agencies have not even asked for, and has even prevented DoD and DoJ prosecutors -- against their preferences -- from transferring terror defendants to Article III Courts, waxing heroic about their responsibility to protect their constituencies from movie-plot attacks on the trial venues.
Washington lawyers and politicians did not end Bush's war on terror. Security officials did. And they ended it, because it didn't make Americans any safer.
Image from The Economist.com