Jack Goldsmith, a former assistant attorney general in the Bush administration, is a professor at Harvard Law School and a member of the Hoover Institution task force on national security and law. He is the author of “Power and Constraint: The Accountable Presidency after 9/11.”
As the general-election campaign comes into focus, conventional wisdom holds that President Obama is untouchable on national security. But the presidential politics of counterterrorism are less clear than they may seem. Mitt Romney has advantages; the risk is that he will overplay them.
The nation has suffered no major terror attack during Obama’s presidency. Through bold use of intelligence, drones and special forces, Obama’s team has killed Osama bin Laden and dozens of other senior terrorists. Almost as important, Obama’s rhetorical focus on war against al-Qaeda rather than war against Islamists has damaged al-Qaeda’s brand and has drawn complaints from terrorists (including bin Laden, according to documents found after his death). The original al-Qaeda organization seems in disarray. Unsurprisingly, Obama receives high marks from the American people on national security.
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These successes have not translated into political capital on counterterrorism issues at home. Obama failed in his signature pledge to close the Guantanamo Bay detention center. His administration had to back down from its attempt to prosecute in civilian court senior terrorist leaders held at Guantanamo. In both contexts, large majorities in Congress, with broad popular support, opposed the president’s policies and enacted laws that forbid closing Guantanamo or trying terrorists held there in civilian court.
Congress pushed back against Obama partly for political reasons and partly because lawmakers did not fully trust his judgment in those contexts. Problems began with some clumsy public errors in the administration’s first year, including the ill-advised attempt to release some detainees into the United States, a waffling reaction to the failed Christmas Day attack by “underwear bomber” Umar Farouk Abdulmutallab and the poorly vetted decision to prosecute 9/11 mastermind Khalid Sheik Mohammed in civilian court. These and related controversies spurred Republicans and many Democrats to hurl charges of insufficient seriousness on counterterrorism — and led to the unprecedented congressional restrictions under which Obama labors.
Obama never really tried to leverage his reputation for killing terrorists abroad into success on Guantanamo-related issues at home. The Bush administration used every tool of the presidency — the bully pulpit, political trench warfare in Congress and threats to disregard congressional restrictions — to further its counterterrorism priorities. The Obama administration has been internally divided on terrorist detention and trial issues and preoccupied with higher-priority matters; it has rarely spent political capital on the Guantanamo detainees.
Although he has not exerted himself, Obama insists he wants to implement his unpopular positions on Guantanamo and civilian trials for accused terrorists. This provides an opening for Romney, who could acknowledge Obama’s successes with targeted killings and at the same time lambaste the president for being too solicitous toward Guantanamo detainees.