Principles of national security

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Monday, March 22, 2010

IN A SPEECH at the National Archives last May, President Obama laid out a vision for handling terrorism cases that was at once thoughtful and bold. "We are indeed at war with al-Qaeda and its affiliates," Mr. Obama said. "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."

Mr. Obama's prohibition of harsh interrogation techniques, his rigorous review of detainee cases and the progress made in relocating prisoners cleared for release are apt applications of the principles he articulated. But failures also have marked the past year. Mr. Obama declined to expend political capital to push for rules to govern habeas corpus proceedings; none also exist for the detentions of prisoners who his administration said could not be tried but were too dangerous to release. The Sept. 11 suspects still have not been held accountable, and the administration is wavering on where and how to try accused mastermind Khalid Sheik Mohammed and four co-defendants. The military prison at Guantanamo Bay, Cuba, remains open some two months past the president's self-imposed deadline to shutter it.

Mr. Obama inherited a legal mess from the Bush administration, and some of the failures -- primarily Guantanamo -- can be fairly laid at the feet of Republicans. Yet Mr. Obama has only himself to blame for the backlash that he is experiencing from even his own party for deciding to try the Sept. 11 defendants in Manhattan; city officials were not consulted in advance and opposed the venue because of security costs.

That trial has now become a bargaining chip in discussions with Sen. Lindsey O. Graham (R-S.C.). Mr. Graham is said to be willing to help Mr. Obama push for the closing of the Guantanamo prison if the Sept. 11 defendants are tried in a military commission. A bipartisan agreement would be welcome but it must be governed by principle -- not just political expedience. It also should be comprehensive.

The legitimacy of U.S. federal courts is unparalleled, which is why terrorism suspects should be tried in these courts when possible. But if a Manhattan trial is untenable and no other federal court venue is suitable, the newly reconstituted military commissions provide a fair alternative, with robust protections for defendants and secure procedures to guard against leaks of national security information. The president should reject any deal that would demand military trials for all current and future terrorism suspects; these decisions must be made on a case-by-case basis, and the president's options should not be curtailed.

Congress and the president should hammer out a set of rules to guide judges on how to handle the Guantanamo habeas cases still wending their way through the system. And they need to agree on a legal framework to govern indefinite detentions now and in the future.

The threat of terrorism is not going to evaporate soon. There undoubtedly will be more instances in which intelligence indicates that a suspect is too dangerous to release but prosecution is not an option. Mr. Obama has acknowledged as much, yet he has insisted, as did his predecessor, that the president has the authority to hold these prisoners unilaterally without interference from the nation's courts. That might be right legally, but it is bad policy. These detentions must be governed by law and overseen by judges authorized to release improperly detained suspects.

Mr. Obama embraced these principles in his National Archives speech. He should not abandon them now.


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