By David Ignatius
Sunday, March 29, 2009
Dick Cheney created an uproar when he told CNN that President Obama's terrorism policies were making the country less safe. "He's making some choices that in my mind will, in fact, raise the risk to the American people of another attack," the former vice president said.
Cheney's comment was outrageous for several reasons, not least in that he was continuing the kind of fear-mongering that has itself weakened the country. But White House press secretary Robert Gibbs made a mistake with his gratuitously disrespectful and partisan remark, "Well, I guess Rush Limbaugh was busy, so they trotted out the next-most popular member of the Republican cabal."
A more useful response would have been to say that America isn't less safe because Obama hasn't changed anti-terrorism policies as much as Cheney's broadside implied. In fact, the administration's new policies on interrogation and detention reflect a careful effort to balance law and national security -- and are a return to pre-Bush administration standards rather than some new left-wing experiment.
To understand the Obama policies, you have to read carefully the executive orders that were issued by the White House on Jan. 22. They ordered the closure within a year of the Guantanamo Bay detention facility, instructed the CIA to shut its secret detention facilities and banned any interrogation techniques not authorized by the Army Field Manual.
With those decisive moves, Obama rejected the Bush administration's legal approach to terrorists as "unlawful enemy combatants," to whom U.S. and international law didn't apply. "It was offensive to the United States and our values that we should have dark holes where people could be made to disappear," explains Jeffrey Smith, a former CIA general counsel who was part of the informal group that advised Obama and White House Counsel Gregory Craig on the new policies.
But to get a get full picture of the Obama approach, you have to read the fine print of the executive orders -- and also what they didn't say.
First, Obama hasn't banned the process known as "extraordinary rendition." This technique has been used by U.S. intelligence and law enforcement agencies for more than 30 years to seize people overseas, either unilaterally or with permission of the host country, and take them somewhere else for interrogation and possible judicial action. That authority hasn't changed, nor has the CIA's ability to work with foreign intelligence services that are interrogating terrorist suspects.
The executive orders propose a new task force that will "study and evaluate the practices of transferring individuals to other nations" to ensure that such transfers don't send prisoners to countries where they would "face torture." Although the CIA secret detention facilities are being closed, the order notes that this doesn't refer to "facilities used only to hold people on a short-term, transitory basis." The order doesn't define "short-term" or "transitory."
"Rendition is still permitted," said Leon Panetta, the new CIA director, in a Feb. 25 meeting with reporters. "If we render someone, we are obviously going to seek assurances from that country that their human rights are protected and that they are not mistreated." The CIA hasn't had any rendition cases since Obama took office, but when opportunities arise they will be cleared with the White House on a case-by-case basis.
In drafting the new policy on interrogation, Obama and his advisers recognized that there could be extraordinary situations -- say, a suspect with information about nuclear terrorism -- where the president could decide to waive the executive order banning harsh techniques. "Everybody understands that if the nation faces a severe threat, the president can do what's needed to protect us. But he has to explain it. The problem with Bush was doing it all in secret, which leads to abuse," argues Smith.
Perhaps that will reassure Cheney about the nation's safety: The Obama team agrees with Supreme Court Justice Robert Jackson that the Constitution isn't "a suicide pact," and it understands that there are extreme situations where the rules on interrogation might have to be stretched. But it doesn't want to make the Bush mistake of opening the door to lawless actions.
Explains Smith: "It's a big mistake to base your position on the idea that we have rules, but if need be, they'll be broken. That's a formula for abuse. On issues like this, you have to have a 'bright line' standard, so that U.S. government personnel all over the world know what the rules are."