Obama's 'None Of the Above' Terror Policy

Sunday, May 24, 2009

President Obama is:

(a) A disappointing sellout to conservatives, someone who ran promising to reverse the Bush administration's excesses in the war on terrorism and has now embraced them.

(b) A dangerous liberal whose naive views about playing nicely with terrorists threaten national security.

(c) A kinder, gentler George W. Bush, hewing largely to the previous administration's terrorism policies while wrapping them in more pleasing rhetoric.

The president has been accused of all three in the past few days, which suggests that the correct answer is:

(d) None of the above. Obama inherited a minefield of difficult legal issues entwined in the war on terrorism, and he has picked his way carefully, intelligently and -- for the most part -- correctly through them.

Indeed, the president's stumbles have been more in the execution than in policy. He risked (and lost) a congressional vote on funding to close the Guantanamo Bay prison before laying the necessary groundwork. He resisted (but only after seeming to open the door to) forming an independent commission to examine interrogation policies; this could have avoided the current distracting drip-drip-drip of information about who knew what when about waterboarding and whether it worked. He was for releasing the photos of detainee abuse before he was against it.

On the merits, though, Obama has mostly called it right. My disagreements concern, in the scheme of things, relatively minor issues -- the reaffirmation of a broad state secrets privilege and the about-face on releasing the photos -- and these are judgment calls the president made on the basis of more information, by definition, than the rest of us have.

Some of the issues that Obama dealt with in his thoughtful speech on Thursday -- how to handle closing Guantanamo, whether to release memos or photographs of abuse -- were messes left for him by the Bush administration. For example, Guantanamo would have been a perfect place to hold detainees and avoid the current outbreak of not-in-my-backyardism were it not for the fact that the Bush administration chose the base not for its remoteness but for its -- or so it thought -- lawlessness.

Had the Bush administration put in place basic elements of due process and fairness from the start, had it not been so determined to exalt executive power at the expense of coequal branches, Guantanamo would not be the toxic symbol it has become. Had the Bush administration not tainted evidence with its "enhanced interrogation techniques," perhaps more detainees -- and the most dangerous of them -- could be tried and convicted.

Other issues are unavoidably difficult -- "tough calls involving competing concerns," as Obama said about balancing openness and security. The hardest of these is the boldest and most controversial part of Obama's blueprint for building a sustainable legal architecture in the war on terrorism: a mechanism for holding detainees who cannot be tried or released.

The thought of a preventive detention regime should make everyone queasy -- except that the alternatives (freeing dangerous individuals who for various reasons cannot be tried or the current, failing system) should make everyone queasier.

So the caricatures of answers (a) "disappointing sellout" and (b) "naive liberal" are both wrong. Sometimes -- ending the use of "enhanced interrogation techniques," releasing the Office of Legal Counsel memos on the same -- he has embraced the "liberal" side. Sometimes -- reaffirming a broad state secrets privilege, reviving military commissions, envisioning a legal mechanism for preventive detention -- he has come down on the "conservative" side.

Which makes (c) "kinder, gentler Bush" the most intriguing wrong answer. This argument has been made most extensively by Jack Goldsmith, head of the Office of Legal Counsel under George W. Bush. Writing in the New Republic, Goldsmith asserted that Obama has "copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric."

This is true only if you define "the Bush program" as what the courts and, to a shamefully lesser extent, Congress, had forced Bush to do by the end of his administration. Even similar-looking positions contain important differences whose significance Goldsmith minimizes. Obama suspended and then revived the military tribunals that Bush put in place -- but with improvements on excluding information obtained by coercion, limiting the use of hearsay and expanding access to lawyers.

More important, where Bush resisted any encroachments on executive power, Obama welcomes sharing power and responsibility. "Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man," he said. "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight."

That's not glitzy rhetoric cloaking the same old policy. It's smart change, dangerously overdue.

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