Published Jan 9, 2010
From the magazine issue dated Jan 18, 2010
Dick Cheney has said that President Obama is "trying to pretend that we are not at war" with terrorists. Tell that to the terrorists. According to data compiled by Peter Bergen and Katherine Tiedemann for the New America Foundation, the Obama administration in less than a year in office has carried out more than 50 Predator strikes against terrorist targets. That's more than George W. Bush did during his entire presidency. At the same time, liberals accuse Obama of betraying his ideals and his promises to restore the rule of law. This accusation is equally wrongheaded. Obama has made—or more precisely has permitted his attorney general, Eric Holder, to make—a series of decisions that weigh proper judicial procedure and the appearance of justice over risks to national security.
Obama's split-the-difference approach on terrorism is consistent with what we have learned about the president in his first year. He is a realist and compromiser who seeks the middle way, not a liberal ideologue. His approach is judged highly by most counterterror professionals, who understand that the most effective policies are often the least palatable politically. Where Obama has stumbled, though, is when he has allowed politics or a legalistic approach to get in the way of common sense about public safety. While the rantings from the right and from the left should be rejected or discounted, Obama can be a little too Solomonic in his judgment when it comes to balancing the rule of law and protecting the homeland. In some cases, rather than relying on current laws, he should be working harder to change them.
Obama, on balance, falls into the lawyer camp. A Harvard Law grad who taught constitutional law at the University of Chicago, he is steeped in a tradition that privileges the Bill of Rights over the crude or arbitrary exercise of power. He is also a considered analytical thinker. Lawyers, at their best, weigh the equities and reject one-sided arguments. In his reasoning and pronouncements, Obama has shown an appreciation for shades of gray.
In their desire to avoid inflammatory language—referring to terrorism as "man-caused disaster" and the like—Obama's lieutenants have from time to time tried too hard. Still, Obama's greatest contribution so far to national security policy has been tonal. He has softened the Bush-era rhetoric and turned down the volume on what a former CIA chieftain once called "the Mighty Wurlitzer," a mythical organ that blasts out the music of American salvation and superiority. Obama is keenly sensitive to appearances. He has always known that speaking of a "crusade" and "Islamofascism" was a good way to make jihadists out of Muslim teenagers, and that the American prison at Guantánamo was Al Qaeda's best recruiting tool.
Obama was hardly alone or unusual in these views. Even President Bush recognized that Guantánamo was doing more harm than good, and his administration had begun to free detainees and take steps toward closing the prison. Bush was simply too discredited to gain much PR benefit from such moves.
Obama, on the other hand, has also been scrupulous about keeping open his options for fighting terrorism. His antiterror policies are essentially those of Bush's second term. Brutal interrogation methods such as waterboarding were no longer being used by 2005. Obama formally banned not only torture but all forms of coercion—even angry shouting or threats—as interrogation methods. But sharp-eyed lawyers have pointed out that he did so by executive order rather than by Congressional legislation, which means he is free to change his mind without first obtaining the approval of elected representatives. The post-9/11 system of warrantless wiretapping was reformed and made legal by Bush's Justice Department and Congress. Obama has continued the "rendition" policy of sending captured terror suspects back to their home countries, as long as their hosts promise not to torture them.
In many ways, Obama has governed on national security from the right of center. As Peter Baker points out in The New York Times Magazine, he has emphatically told his subordinates that the CIA is to get whatever it needs in the way of resources. But the deciding factor is effectiveness, not ideology—and he's open to changing policies that don't work. Although Obama put a one-year deadline on closing Guantánamo, for instance, he missed it. The job of sorting the truly lethal from the less dangerous detainees is complex and time-consuming. So too is persuading a foreign country to accept detainees who have been schooled in jihadist ideology in the prison yard of Guantánamo.
That doesn't mean the president hasn't miscalculated. To signal a new era shortly after taking office, Obama ordered his minions not to resist an ACLU lawsuit to publicly release CIA documents detailing the torture methods used against captured Qaeda operatives. He also went along with Attorney General Holder's decision to investigate intelligence officials involved in the post-9/11 interrogation program. In doing so he overlooked or rejected warnings by outgoing CIA director Michael Hayden, among others, that he risked seriously undermining morale in the intelligence community. The morale of the CIA is not to be taken lightly. Intelligence officers are less likely to take risks if they think they will be left to shoulder the blame when things go wrong. As Obama cranks up covert operations from Afghanistan to Yemen, he is going to need to have the intelligence community behind him—leaning forward, not watching their backs.
Obama may also have been short-sighted in supporting Holder's decision to try 9/11-mastermind Khalid Sheikh Mohammed in federal court in Manhattan. Presumably Obama wanted to show the world that even a fanatical terrorist could get a fair trial in America, and saw little risk that KSM, as the spooks call him, would be acquitted. Holder's decision even drew support from former Bush Justice Department officials Jim Comey and Jack Goldsmith, who are celebrated for standing up to the Cheneyites on the question of torture and warrantless eavesdropping in 2004. In a Washington Post op-ed last November, Comey and Goldsmith argued that trying KSM in Manhattan was "unlikely to make New York a bigger target." They reasoned that "if al-Qaeda could carry out another attack in New York, it would—a fact true a week ago and for a long time."
True enough. But the real threat now may be less from Al Qaeda Central, holed up in the mountains of Pakistan, than the various Qaeda offshoots and wannabes, some of whom may live in New York. For a suicide bomber tempted by immortality, avenging the trial of the 9/11 mastermind by blowing up a New York subway will be a powerful lure.
In this case Obama could have worked harder to find a middle path. He has not abolished the system of military commissions set up by Bush to try terrorists. Rather, he has tinkered with the rules, making it harder to introduce evidence obtained through coercion. But the legality of those panels, and the ability of the government to hold detainees indefinitely, is under challenge in the regular federal courts. Lacking proper guidance, federal judges have been making up the rules as they go along. Obama actually promised to seek legislation to determine how and for how long detainees can be held without trial—but he backed off under pressure from liberals and civil libertarians, who oppose enshrining any form of preventive detention into law.
Obama may be regretting that caution. When the underwear bomber, Umar Farouk Abdulmutallab, was arrested, he was granted a lawyer after 30 hours and stopped talking. Conservatives squawked, but in fact the Bush administration had done the same for the so-called shoe bomber, Richard Reid, back in 2001. There needs to be some kind of system that would allow interrogators to question a terror suspect captured inside the United States for a period of time—say two weeks—before he is put in the criminal justice system and "lawyered up." Abdulmutallab might have tipped off the CIA to other plots or plotters before he went silent.
Conservatives who complain that Abdulmutallab should have been treated like an illegal combatant and thrown in a military brig overlook an important point. Under the existing system of military commissions, detainees have a right to a lawyer, just like ordinary criminal suspects. So he would have been silenced either way. What we really need is a new system that looks at the whole difficult question of preventive detention. While the talking heads shout and cast blame, someone in Congress or the administration needs to find a solution that accommodates the needs of intelligence gathering and the rule of law. Obama, the law professor, could probably write such a law himself.
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