Washington Post Editorial: The Bounds of War/New York Times Editorial: The Real Path to Security/Cheney Lost to Bush

Washington Post Editorial: The Bounds of War - President Obama sketches a legal framework that's been absent since the Sept. 11 attacks.
Copyright by The Washington Post
Friday, May 22, 2009
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/21/AR2009052103483.html


"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."





New York Times Editorial: The Real Path to Security
Copyright by The New York Times
Published: May 21, 2009
http://www.nytimes.com/2009/05/22/opinion/22fri1.html?_r=1&th&emc=th


We listened to President Obama’s speech on terrorism and detention policy with relief and optimism.

For seven years, President George W. Bush tried to frighten the American public — and successfully cowed Congress — with bullying and disinformation. On Thursday, President Obama told the truth. It was a moment of political courage that will make this country safer.

Mr. Obama was exactly right when he said Americans do not have to choose between security and their democratic values. By denying those values, the Bush team fed the furies of anti-Americanism, strengthened our enemies and made the nation more vulnerable.

Such clarity of thought is unlikely to end the partisan posturing. It certainly didn’t quiet former Vice President Dick Cheney, who was fear-mongering in full force on Thursday. But we hope that lawmakers who voted this week against closing the prison in Guantánamo Bay, Cuba — starting with the Senate majority leader, Harry Reid — were listening closely.

We do not agree with every aspect of Mr. Obama’s solutions, especially his opposition to the court-ordered release of photographs of prisoner abuse and the positions he has taken on state secrets. But the course he outlined was generally based on due process and democratic governance.

Mr. Obama flatly rejected Mr. Cheney’s claims that torture saved “hundreds of thousands” of lives and reminded Americans that those abuses were ineffective, recruited more terrorists than they brought to justice, destroyed the nation’s image and will make it much harder to try some of the most dangerous terrorists.

Affirming that a detention policy has to be based on law and subject to Congressional and judicial scrutiny, Mr. Obama voiced the profound truth that eluded Mr. Bush, “In our constitutional system, prolonged detention should not be the decision of any one man.”

Mr. Obama said he had no intention of releasing any dangerous terrorist but added that some detainees must be tried and jailed in this country — a message to Democratic lawmakers who first demanded the closing of Guantánamo and now take the ludicrous position that no inmate can set foot in the continental United States, even in irons and headed for a maximum-security prison.

Mr. Obama sensibly grouped the prisoners into five categories, starting with those who can and should be tried in civilian criminal courts on terrorism charges.

There are Guantánamo prisoners who violated the laws of war and should be tried in military tribunals, but not the existing ones created by Congress in 2006. That law should not be tinkered with. It should be scrapped and those prisoners should tried under military law.

Some prisoners can be transferred to other governments’ custody and some, who committed no crimes, should be released. And, yes, some should be allowed to live in the United States.

The most troubling category is the one for prisoners — like Abu Zubaydah, an alleged top member of Al Qaeda — who seem to be highly dangerous terrorists but were tortured. It’s hard to imagine how they can be tried on that evidence. Some can be tried on other terrorism charges, like Ahmed Ghailani, whom the administration is properly moving to a civilian federal court to face charges related to the 1998 embassy bombings in Africa.

Mr. Obama vowed to deal with the rest of the prisoners under the law and the Constitution, but forthrightly admitted he wasn’t sure how. There are proposals to create a new “preventive detention” regime that we are not convinced is needed.

As he moves forward, we hope Mr. Obama bears in mind a point he made on Thursday. The problem is not the crime of terrorism, which the judicial system can normally handle. It is the way Mr. Bush undermined that system — and this country’s reputation and security — with his policies of arbitrary detention and abuse.




Cheney Lost to Bush
By DAVID BROOKS
Copyright by The New York Times
Published: May 21, 2009
http://www.nytimes.com/2009/05/22/opinion/22brooks.html?th&emc=th


President Obama and Dick Cheney conspired on Thursday to propagate a myth. The myth is that we lived through an eight-year period of Bush-Cheney anti-terror policy and now we have entered a very different period called the Obama-Biden anti-terror policy. As both Obama and Cheney understand, this is a completely bogus distortion of history.

The reality is that after Sept. 11, we entered a two- or three-year period of what you might call Bush-Cheney policy. The country was blindsided. Intelligence officials knew next to nothing about the threats arrayed against them. The Bush administration tried just about everything to discover and prevent threats. The Bush people believed they were operating within the law but they did things most of us now find morally offensive and counterproductive.

The Bush-Cheney period lasted maybe three years. For Dick Cheney those might be the golden years. For Democrats, it is surely the period they want to forever hang around the necks of the Republican Party. But that period ended long ago.

By 2005, what you might call the Bush-Rice-Hadley era had begun. Gradually, in fits and starts, a series of Bush administration officials — including Condoleezza Rice, Stephen Hadley, Jack Goldsmith and John Bellinger — tried to rein in the excesses of the Bush-Cheney period. They didn’t win every fight, and they were prodded by court decisions and public outrage, but the gradual evolution of policy was clear.

From 2003 onward, people like Bellinger and Goldsmith were fighting against legal judgments that allowed enhanced interrogation techniques. By 2006, Rice and Hadley brought Khalid Shaikh Mohammed in from a secret foreign prison to regularize detainee procedures. In 2007, Rice refused to support an executive order reviving the interrogation program. Throughout the second Bush term, officials were trying to close Guantánamo, pleading with foreign governments to take some prisoners, begging senators to allow the transfer of prisoners onto American soil. (It didn’t occur to them that they could announce the closure of Gitmo first, then figure out what to do with prisoners.)

Cheney and Obama might pretend otherwise, but it wasn’t the Obama administration that halted the practice of waterboarding. It was a succession of C.I.A. directors starting in March 2003, even before a devastating report by the C.I.A. inspector general in 2004.

When Cheney lambastes the change in security policy, he’s not really attacking the Obama administration. He’s attacking the Bush administration. In his speech on Thursday, he repeated in public a lot of the same arguments he had been making within the Bush White House as the policy decisions went more and more the other way.

The inauguration of Barack Obama has simply not marked a dramatic shift in the substance of American anti-terror policy. It has marked a shift in the public credibility of that policy.

In the first place, it is absurd to say this administration doesn’t take terrorism seriously. Obama has embraced the Afghan surge, a strategy that was brewing at the end of the Bush years. He has stepped up drone activity in Pakistan. He has promoted aggressive counterinsurgency fighters and racked up domestic anti-terror accomplishments.

As for the treatment of terror suspects, Jack Goldsmith has a definitive piece called “The Cheney Fallacy” online at The New Republic. He lists a broad range of policies — Guantánamo, habeas corpus, military commissions, rendition, interrogation and so on. He shows how, in most cases, the Obama policy represents a continuation of or a gradual evolution from the final Bush policy.

What Obama gets, and what President Bush never got, is that other people’s opinions matter. Goldsmith puts it well: “The main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.”

Obama has taken many of the same policies Bush ended up with, and he has made them credible to the country and the world. In his speech, Obama explained his decisions in a subtle and coherent way. He admitted that some problems are tough and allow no easy solution. He treated Americans as adults, and will have won their respect.

Do I wish he had been more gracious with and honest about the Bush administration officials whose policies he is benefiting from? Yes. But the bottom line is that Obama has taken a series of moderate and time-tested policy compromises. He has preserved and reformed them intelligently. He has fit them into a persuasive framework. By doing that, he has not made us less safe. He has made us more secure.