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The Bounds of War
President Obama sketches a legal framework that's been absent since the Sept. 11 attacks.

Friday, May 22, 2009

"WE ARE indeed at war with al-Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process, in checks and balances and accountability."

This lucid declaration by President Obama yesterday perfectly outlined the challenges facing a nation battling a violent, nonstate enemy. By framing the matter in the context of war, Mr. Obama correctly acknowledged the limitations of traditional law enforcement tools and venues to contain and bring to justice those who would harm the United States. Yet he repudiated what he called the Bush administration's "ad hoc," the-ends-justify-the-means approach and spoke eloquently about the need to craft legitimate and effective legal structures that give meaningful rights to the accused while protecting the country's national security interests.

Mr. Obama spoke in greatest detail about his plans for dealing with the 240 detainees held at the U.S. Naval Base at Guantanamo Bay, Cuba. Batting aside the fear-mongering of lawmakers who this week withheld funds to close the detention center, Mr. Obama made clear that any detainees brought to the United States would be held in the highest-security prisons -- from which no inmate has ever escaped. Those who can be prosecuted in federal court, Mr. Obama said, will be tried there. Those who are accused of violating the laws of war will be tried before military commissions that Mr. Obama has vowed to revamp with extra legal protections for defendants. In perhaps the most controversial proposal -- but one that the president is right to consider -- Mr. Obama said that he would work with Congress to craft a legal regime to provide for the detention of suspects who are deemed too dangerous for release but against whom there is not enough admissible evidence to bring formal charges.

Mr. Obama is criticized for both sides of his equation. From the left, some deny that the battle against al-Qaeda should be considered in the context of the law of war. From the right, critics suggest that to construct fair rules or demand accountability in the conduct of that war will hamstring the nation's defense. The Bush administration understood the first half but stubbornly refused to work with Congress to establish the necessary institutions; the result was years of false starts, immoral behavior and terrible blows to America's reputation. Former vice president Richard B. Cheney's rebuttal speech yesterday not only failed to acknowledge his administration's failures but falsely posited the national security choice as one between a "comprehensive strategy [that] has worked" and a view that Sept. 11, 2001, "was a one-off event . . . not sufficient to justify a sustained wartime effort."

Mr. Obama's wisdom lies in accepting the reality of war but insisting that it can be fought in fidelity to U.S. values. Yesterday, he spelled out the crucial difference. "I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred," he said. "Our goal is not to avoid a legitimate legal framework."

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