A politica de segurança americana revista e a teoria constitucional

O jornal New York Time faz circular o editorial a respeito da revisão de politica de segurança nos Estados Unidos hoje. Após o evento de de 11 de setembro de 2001 produziu-se uma vasta literatura constitucional que possibilitaria a convivência entre o estado de exceção e a constituição. Ackerman, por exemplo, propos a teoria do "escalator" permitindo uam compatibilidade da limitação de direitos individuais com segurança. Hoje diante dos abusos praticados pelos drones, a interferência do Estado na sociedade americana pela sua Receita Federal e a mudança do perfil do denominado terrorismo mais para um  aspecto pontual, há uma produção de uma nova literatura. Depois de anos, temos a volta de Stephen Griffin produzindo. Saiu esse mês maio sua obra a respeito da teoria constitucional e os poderes de guerra. Temos na data de hoje circulando também a resenha de Richard Pildes e Samuel Issacharoff sobre uma obra a respeitodos drones. É sob essa perspectiva que deve ser lido editorial do New York Times de 24 de maio de 2013. Por fim, o que se espera, seguindo um texto clássico do constitucionalista americano Lawrence Tribe que, mais uma vez "a noite estrelada liberal americana" mais uma vez desapareça diante de uma "constitutional dictartoship".



Editorial

The End of the Perpetual War

By THE EDITORIAL BOARD

Published: May 23, 2013 436 Comments




President Obama’s speech on Thursday was the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post-9/11 America. For the first time, a president stated clearly and unequivocally that the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.

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Pivoting From a War Footing, Obama Acts to Curtail Drones (May 24, 2013)





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“Our systematic effort to dismantle terrorist organizations must continue,” Mr. Obama said in the speech at the National Defense University. “But this war, like all wars, must end. That’s what history advises. It’s what our democracy demands.”
As frustratingly late as it was — much of what Mr. Obama said should have been said years ago — there is no underestimating the importance of that statement. Mr. Obama and his predecessor, President George W. Bush, used the state of war that began with the authorization to invade Afghanistan and go after Al Qaeda and others who planned the Sept. 11 attacks to justify extraordinary acts like indefinite detention without charges and the targeted killing of terrorist suspects.
While there are some, particularly the more hawkish Congressional Republicans, who say this war should essentially last forever, Mr. Obama told the world that the United States must return to a state in which counterterrorism is handled, as it always was before 2001, primarily by law enforcement and the intelligence agencies. That shift is essential to preserving the democratic system and rule of law for which the United States is fighting, and for repairing its badly damaged global image.
Mr. Obama said the Authorization for Use of Military Force, which was passed after Sept. 11, 2001, must be replaced to avoid keeping “America on a perpetual wartime footing.” He added: “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.”
He did not say what should replace that law, but he vowed: “I will not sign laws designed to expand this mandate further.” Mr. Obama’s speech covered the range of national security, counterterrorism and civil liberties issues facing the United States since 2001.
TARGETED KILLINGS For the first time, Mr. Obama admitted to ordering the death of an American citizen, Anwar al-Awlaki, and to the unintentional deaths of three other Americans, including Mr. Awlaki’s 16-year-old son, in drone strikes.
Mr. Obama announced important shifts in the policy of using unmanned drones to kill citizens of other countries, in the territory of sovereign nations, without any public, judicial or meaningful Congressional oversight. From now on, the Central Intelligence Agency and the military will no longer target individuals or groups of people in countries like Pakistan based merely on the suspicion that their location or actions link them to Al Qaeda or other groups allied with the terrorist network. Those attacks, referred to as “signature strikes,” have slaughtered an untold number of civilians and have become as damaging a symbol of American overreach as the prison camp in Guantánamo Bay, Cuba.
The targeting of citizens of other countries will now be subjected to the same conditions the administration uses to kill American citizens abroad. They must be shown to pose “a continuing, imminent threat to Americans,” as Attorney General Eric Holder Jr. wrote in a letter to Congress that was made public on Wednesday. In addition, the letter said, lethal force can be used only when capture is not feasible and there are “no other reasonable alternatives to effectively address the threat.”
The acknowledgment of the killing of Mr. Awlaki in 2011, and, more important, the supplying of compelling evidence that he was organizing terrorist attacks and not just preaching jihad on the Internet, was a much-needed step. The administration’s refusal to talk about the Awlaki killing and other aspects of the drone policy until now had been highly damaging to Mr. Obama personally and to America’s relationship with other countries, like Pakistan.
We wish Mr. Obama had pledged an accounting for the civilian deaths caused by drone strikes, and some form of reparations, but he did not. He should do so.
Mr. Obama did say that he does “not believe it would be constitutional for the government to target and kill any U.S. citizen — with a drone or with a shotgun — without due process.” Nor, he said, “should any president deploy armed drones over U.S. soil.” He also said that he had informed Congress about every planned drone strike outside of Iraq and Afghanistan and that he had ordered his administration to prepare a strict, written set of rules for targeted killings in the future. (Still, it was disturbing to hear that the rules would be in a classified document, not be shared with the public. It’s hard to believe that some version could not be declassified.)
In the past, we have been deeply troubled by the administration’s insistence that the review of planned targeted killings be handled entirely within the executive branch. On Thursday, he said he was willing to talk to Congress about “options for increased oversight” — including the establishment of “a special court to evaluate and authorize lethal action” or “an independent oversight board in the executive branch.” Mr. Obama said he had constitutional and operational concerns about both ideas; in the end, he may not agree to either. But at least he did not contemptuously dismiss them as some of his advisers have done in the past.
GUANTÁNAMO BAY Mr. Obama called on Congress to remove the restrictions it has placed for purely partisan reasons on the transfer of most detainees from the prison in Cuba. He endorsed the limited use of military tribunals to try terrorist suspects, about which we have grave doubts, and asked Congress to designate a place in the United States where military tribunals can be held. But he said most terrorism cases should be handled by the federal courts, which have proved their ability to do so efficiently and justly.
“Given my administration’s relentless pursuit of Al Qaeda’s leadership, there is no justification beyond politics for Congress to prevent us from closing a facility that should have never been opened,” said Mr. Obama, who was briefly stopped by a heckler from outlining the very closure plans that she demanded.
One huge obstacle to closing Guantánamo was created by Mr. Bush’s policies of detaining prisoners illegally and using torture in interrogations. Those practices left some truly dangerous men in custody without a clear way to try them because the evidence against them is so tainted. Mr. Obama acknowledged this legal disaster but added that once a commitment has been made on a process for closing the prison, “I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”
He said passionately that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.” And he talked about the force-feeding of hunger strikers and added: “Is this who we are? Is that something our founders foresaw? Is that the America we want to leave our children?”
CIVIL LIBERTIES Mr. Obama pledged to create new protections for Americans’ civil liberties “to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are.” He called for an independent board to preserve civil liberties. Alluding to the recent disclosure that the Justice Department secretly collected months’ worth of phone logs from The Associated Press and considered criminal charges against a Fox News reporter, Mr. Obama defended the need to investigate leaks. But he said: “A free press is also essential for our democracy. That’s who we are. And I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”
Mr. Obama said “journalists should not be at legal risk for doing their jobs.” And he repeated his welcome call, even if oddly belated, to “pass a media shield law to guard against government overreach.” He said he had instructed Mr. Holder to “review existing Department of Justice guidelines governing investigations that involve reporters,” convene media groups to “hear their concerns” and report back to him by July 12.
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There have been times when we wished we could hear the right words from Mr. Obama on issues like these, and times we heard the words but wondered about his commitment. This was not either of those moments.