Showing posts with label war on terror. Show all posts
Showing posts with label war on terror. Show all posts

Sunday, July 19, 2009

The Post and Abu Zubaydah Part II: Ali Soufan Exposed

The Post and Abu Zubaydah Part II: Ali Soufan Exposed. By Marc Thiessen
NRO, Sunday, July 19, 2009

On March 29, the Washington Post published a front-page story called “Detainee’s Harsh Treatment Foiled No Plots,” in which staff reporters Joby Warrick and Peter Finn declared that “not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions.”

Although they don’t call it that, Warrick and Finn have published what amounts to a full retraction on the front page of the Post this morning.

They write: “Although Abu Zubaydah was not a member of al Qaeda and had limited relations with bin Laden, he was a font of information on the membership of the terrorist group because of his long standing ties with [Khalid Sheikh] Mohammed and North African jihadists” (emphasis added). He became this “font of information” after the use of enhanced interrogation techniques.Moreover, they acknowledge that Zubaydah provided information that led to the capture of al-Qaeda terrorist Jose Padilla only after enhanced interrogation techniques were employed. (Padilla was captured as he arrived in Chicago on a mission from Khalid Shiekh Mohammed, or KSM, to carry out terrorist attacks in the U.S.)

This contradicts the assertions of FBI agent Ali Soufan, who claims that he got the information about Padilla from Zubaydah before enhanced interrogation techniques were applied by the CIA. Writing in the New York Times in April of this year, Soufan wrote: “Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned [Zubaydah] from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence. We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber.”

This last statement, it turns out, is a flat lie. According to today’s Post, Zubaydah did give up the information about KSM before enhanced interrogations began. Then a CIA team took over and began implementing enhanced interrogation techniques, including forced nudity and sleep deprivation. After this, the Post reports today: “Agency officials decided to let the FBI back into the interrogations, but on the condition that forced nudity and sleep deprivation be allowed to continue. . . . Under FBI questioning, Abu Zubaydah indentified an operative he knew as Abdullah al-Mujahir, the alias, he said, of an American citizen with a Latino name. An investigation involving multiple agencies identified the suspect as Jose Padilla, the al Qaeda operative later convicted of providing material support for terrorism. ‘In two different bits, after sleep deprivation, is when Abu Zubaydah gave clues about who Padilla might be.’”

In other words, contrary to Soufan’s assertion in the Times, he only got the information that led to Padilla after the CIA began to implement enhanced interrogation techniques.

Padilla is often dismissed as the man behind a fanciful “dirty bomb” plot, and the Post notes today that he was convicted of “material support for terrorism.” In fact Padilla was a protégé of al-Qaeda’s third in command, Mohammed Atef, who had been sent to America by KSM to carry out a much more sinister and realistic attack on America — a plot to simultaneously blow up apartment buildings using natural gas. He trained for this mission in al-Qaeda camps, and was given $10,000 by KSM and his right-hand man, Ammar al-Baluchi, to carry it out. The night before his departure for America, KSM, Ammar, and KSM’s nephew and 9/11 plotter Ramzi bin al Shibh hosted a farewell dinner for Padilla and his accomplice.

The reason he was convicted of “material support for terrorism” is because the Justice Department could not prosecute him for the full panoply of his crimes without allowing Padilla to call KSM, Ammar, and Ramzi bin al-Shibh as witnesses — thus risking the exposure of highly classified information. They chose to pursue lesser charges rather than expose sources and methods. But the full extent of Padilla’s activities was laid out in a speech by Deputy Attorney General James Comey in June 2004.

The bottom line is that today’s story in the Post proves that: 1) the original Post assertion that “not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions” is flat wrong — the Padilla plot was broken up because of the CIA’s use of enhanced interrogation techniques; and 2) Ali Soufan’s assertion that he got this information before the implementation of enhanced interrogation techniques is false.

Friday, July 17, 2009

Judges Don't Belong on the Battlefield - Recent decisions have altered the way we're fighting in Afghanistan

Judges Don't Belong on the Battlefield. By DAVID B. RIVKIN JR. and LEE A. CASEY
Recent decisions have altered the way we're fighting in Afghanistan.
WSJ, Jul 17, 2009

Earlier this year, a Washington D.C.-based federal court extended the constitutional right to habeas corpus to three foreign nationals detained by U.S. forces in Afghanistan. The case, Maqaleh v. Gates, represents yet another step in the federal judiciary's transformation from Alexander Hamilton's "least dangerous branch" into a fully active policy maker.

Historically, the constitutional right to habeas corpus -- an ancient process permitting prisoners to challenge the legality of their confinement -- was available only to individuals present in the U.S., or to American citizens held by federal authorities overseas. In a leading World War II case, Johnson v. Eisentrager (1950), the high court decided, with "bright line rules," that habeas corpus is unavailable to foreign citizens held outside the U.S.

But last year, the high court reversed itself in Boumediene v. Bush. The court held, by a 5-4 vote, that foreign nationals detained at Guantanamo Bay, Cuba, also have a right to habeas corpus. Articulating a new, multifactor test for determining who can receive habeas corpus overseas, the court left open the possibility that aliens detained at any U.S. controlled foreign facility could sue the government for their release.

In Maqaleh the court concluded that three detainees, held at Bagram airbase in Afghanistan, but actually captured in other countries, have habeas corpus rights under the U.S. Constitution. It reasoned that permitting the president to move captured enemies from one location to another without judicial review would simply give the executive too much power.

What really is at stake is whether the president's actions overseas -- especially in military operations -- are to be subject to judicial supervision. In this light, the courts have never been so bold. Although the Maqaleh court denied it, the premise of its decision is that the Constitution permits judicial involvement in all U.S. actions abroad. While this particular ruling involves habeas rights in Afghanistan, there is in fact no principled limitation on the court's reasoning. The real test in any particular case is whether a federal judge believes the president is operating with insufficient constraints on his authority.

This new state of play has already affected U.S. military operations. American special forces, have now limited their activities in the Afghan-Pakistan border region -- where al Qaeda and the Taliban are now most active -- to avoid claims by enemy fighters that they were captured outside of Afghanistan, in Pakistan. If those enemy fighters were captured outside of Afghanistan, then according to the Maqaleh decision, they are eligible for habeas relief. This provides a strategic sanctuary for Pakistan-based enemy operatives, who are now effectively immune from U.S. ground attacks.

This is obviously not the first time the courts have overstepped their proper constitutional bounds, seeking a political role for themselves. Notorious examples include the Supreme Court's efforts to preserve slavery in Dred Scott v. Sandford (1857) and its determination to oppose federal economic regulation during President Franklin D. Roosevelt's New Deal. In each case, the judges have eventually been strong-armed back, through the force of the public opinion and political pressures, to a more appropriate role.

The sooner this process begins, the better. A good first step would be some questions for Supreme Court nominee Sonia Sotomayor by the Senate. Senate members should determine her views on the proper role of judges in reviewing U.S. military operations overseas.

Justice Robert Jackson, writing in the Eisentrager case, explained why foreign enemies should not have access to American courts. "It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home." The question is: Does Ms. Sotomayor agree?

Messrs. Rivkin and Casey, Washington D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

Wednesday, July 15, 2009

John Yoo: Why We Endorsed Warrantless Wiretaps

Why We Endorsed Warrantless Wiretaps. By JOHN YOO
The inspectors general report ignores history and plays politics with the law.
WSJ, Jul 16, 2009

It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda's inner workings, could not detect its operatives' entry into the country, nor predict where it might strike next.

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden's Afghanistan headquarters. What better way of detecting follow-up attacks? And what president -- of either political party -- wouldn't immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of terrorists without a judicial warrant. The report also suggests that "other" intelligence measures -- still classified only because they are yet to be reported on the front page of the New York Times -- similarly lacked approval from other branches of government.

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA's wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks.

Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do.

In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats "are much less capable to be directed by antecedent, standing, positive laws." Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations. Only the executive can act to protect the "security and interest of the public."

The power to protect the nation, said Alexander Hamilton in the Federalist, "ought to exist without limitation," because "it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them." To limit the president's constitutional power to protect the nation from foreign threats is simply foolhardy. Hamilton observed that "decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." "Energy in the executive," he reiterated, "is essential to the protection of the community against foreign attacks."

Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis. More than a year before the attack on Pearl Harbor, President Franklin Delano Roosevelt authorized the FBI to intercept any communications, domestic or international, of persons "suspected of subversive activities . . . including suspected spies." FDR did not hesitate long over a 1937 Supreme Court opinion (United States v. Nardone) interpreting federal law to prohibit electronic surveillance without a warrant. It is too late to do anything about it after sabotage, assassinations and 'fifth column' activities are completed," he wrote in a secret 1940 memo authorizing the wire tapping. Indeed, he continued to authorize the surveillance even after Congress rejected proposals from his attorney general, Robert Jackson, to authorize national security wiretapping without a warrant.

Every federal appeals court to address the question has agreed that the president may gather electronic intelligence to protect against foreign threats. This includes the special FISA appeals court, which in a 2002 sealed case upholding the constitutionality of the Patriot Act held that "the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The court said it took the president's power "for granted," observing that "FISA could not encroach on the President's constitutional power."

Now, according to the inspectors general, those of us in government following the 9/11 terrorist attacks should have assumed that the usual peacetime rules for domestic wiretaps applied and interpreted FISA in a most curious way -- to delete the president's traditional authority as commander in chief to collect signals intelligence in wartime.

The 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG's lodestar. In Youngstown, the Court addressed President Harry Truman's effort to seize steel mills shut down by a labor strike during the Korean War. Truman claimed that maintaining production was necessary to supply munitions and material to American troops in combat. Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president's power involving military strategy or tactics in war. If anything, it supports the proposition that one branch cannot intrude on the clear constitutional turf of another.

Moreover, earlier Justice Departments -- reaching across several administrations from both parties -- had likewise concluded that Youngstown did not limit the president's legitimate conduct of foreign affairs and national security policy. This is why all administrations have refused to accept the 1973 War Powers Resolution and have regularly engaged in military conflicts without congressional approval.

Our Constitution created a presidency whose function is to protect the nation from attack. Gathering intelligence -- including intercepting enemy communications -- has long been a key aspect of war. Our military and intelligence agencies cannot attack or defend the nation unless they know where to aim. As we confront terrorists who remain intent on attacking the U.S., using weapons we cannot anticipate, we should be skeptical of those who insist that we radically change the way this country has always made war.

Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.

Sunday, July 5, 2009

Link Between Iraq Violence, Troop Withdrawals Considered

Link Between Iraq Violence, Troop Withdrawals Considered. By Greg Jaffe
Washington Post, Sunday, July 5, 2009

A recent spike in violence in Iraq is prompting senior defense officials to ask whether the gradual withdrawal of U.S. troops from Iraqi cities over the past several months has provided an opening to extremist groups eager to spark sectarian attacks between Sunnis and Shiites.

The latest bombings have highlighted the still-fragile state of the Iraqi government and security forces as the war enters a new phase and U.S. influence in the country continues to wane. Some senior defense officials speculated that the recent increase was part of a last push by Sunni extremist groups, who appeared to be marshaling their resources in May, to make their presence felt before the formal deadline for the U.S. withdrawal from Iraq's cities.

"We knew that if al-Qaeda in Iraq had only five bombs left, they were going to use them all as the last of our forces left the cities," said a senior defense official who follows Iraq. "They wanted to create the narrative that they had driven us from Iraq. Next, they'll want to build the narrative that the Iraqi security forces can't protect the people."

Iraqi civilian deaths, which had dropped in May to among the lowest levels of the war, almost doubled in June, to 447, according to a count by the Associated Press. Gen. Ray Odierno, the top commander in Iraq, played down the impact of the recent attacks. "I still believe that al-Qaeda has been significantly degraded here in Iraq," he told reporters on Tuesday.

Military officials said that in the coming weeks they will be watching closely to see whether al-Qaeda in Iraq and other extremist groups can sustain the recent spate of suicide bombs, which would be a sign that networks of fighters have reinvigorated themselves, and whether the attacks provoke retaliatory violence.

Over the long term, the concern is whether the relative peace between Shiites, who represent the majority in Iraq, and Sunnis can be sustained without a large presence of U.S. troops in Baghdad.

"If Sunnis and Shiites continue to work through their differences politically, Iraq will survive. If not, there is no way it will hold together," said retired Col. Pete Mansoor, who served as a senior aide to the top commander in Iraq in 2007 and 2008.

When U.S. troops moved into Baghdad in large numbers in 2007, they took up positions on the fault lines between Sunni and Shiite neighborhoods in an effort to stop the sectarian killing. "We put ourselves between the sects and functioned as honest brokers," Mansoor said. "That was our primary leverage."

A small number of U.S. advisers and several companies of American combat troops will remain in Baghdad over the coming year. But it will be largely up to Iraqi army and police forces to calm sectarian tensions, which are almost certain to flare as the next national elections, scheduled for January, draw closer.

Senior U.S. officials said they will watch closely for any signs that civilian casualties and sectarian murders in Iraq are increasing in the coming months. So far, the recent bombings have not spurred a cycle of retribution, and even with the recent spike in killings violence still remains at summer 2003 levels.

Another danger is that Iraqi army and police forces will revert to the overtly sectarian behavior of 2006 and 2007 without the stabilizing presence of U.S. forces operating alongside them. It will be difficult for the small number of U.S. advisers embedded with Iraqi units to accompany them on all missions. The conduct of Iraq's senior political leaders, including Prime Minister Nouri al-Maliki, and its top generals will play the biggest role in determining whether the country's security forces hold together or fracture on sectarian lines, military analysts said.

"In 1973 and 1974, there were a lot of good South Vietnamese battalion commanders, but that wasn't enough to compensate for the lack of leadership at senior levels," said Steven Metz, a counterinsurgency expert at the Army War College in Carlisle, Pa.

A major test will be how Maliki and other Iraqi leaders handle the armed groups known as the Awakening or Sons of Iraq. These largely Sunni forces include many former insurgents who agreed to drop their resistance in exchange for positions paying about $300 a month.

Despite its promise to integrate 20 percent of the former Sunni fighters into the Iraqi army and police forces, Maliki's government has found positions for about 5 percent of the 91,000 Iraqis in the program, according to the upcoming quarterly report to Congress on Iraq, which will be released this month. Maliki's government has also targeted a few of the Awakening leaders for arrest in recent months and, at times, has been slow to pay other militia members.

U.S. officials remain optimistic that the Iraqi government will not alienate the former insurgents. "The prime minister and his advisers understand they can't abandon these guys en masse," said the senior defense official.

Even if the government does not meet its promises to the former insurgents, it is unlikely that disaffected Sunnis will turn to groups such as al-Qaeda in Iraq for revenge, military analysts said.

"My worry is that you could see a huge uptick in criminality if the Sons of Iraq aren't integrated into the security forces," Mansoor said. "People have to feed their families, and will resort to oil smuggling, illegal checkpoints and shaking down business owners for protection money."

But if violence rises in Iraq, there is little political appetite in Washington or Baghdad for an increased U.S. role. Some military analysts worried that President Obama had not done enough of late to make it clear to his military commanders and the American people that U.S. troops will push back into Baghdad if necessary.

"Right now, you have a public that is starting to say the war is finished," said Peter D. Feaver, who focused on Iraq as a special adviser to the Bush White House and is a professor at Duke University. "The problem is that we're not done in Iraq. The president is the only one who can mobilize American public support for the war."

Congress's cowardly move to tie the president's hands on detainee transfers

Hypocrisy on the Hill. WaPo Editorial
Congress's cowardly move to tie the president's hands on detainee transfers
The Washington Post, Sunday, July 5, 2009

FOR YEARS, Democrats clamored for the closing of the detention center in Guantanamo Bay, Cuba, using the prison to pummel President George W. Bush for abusing his authority, violating domestic and international law, and tarnishing the reputation of the United States. Sen. Dianne Feinstein (D-Calif.) felt so strongly about the issue that she sponsored legislation in 2007 to force Mr. Bush to shutter the facility.

Now lawmakers are making it nearly impossible for President Obama to close the notorious prison by year's end, as he promised to do.

Ms. Feinstein, Senate Majority Leader Harry M. Reid (Nev.) and 88 other senators -- including every Republican -- voted to attach to a must-pass, supplemental war spending bill several provisions that tie the president's hands. Ms. Feinstein complained that the president lacked a detailed plan to deal with detainees. Facing fear-mongering opponents who essentially accused Mr. Obama of having his heart set on letting hard-core terrorists roam through American backyards, the Senate withered and collapsed, with Maryland Democrats Barbara Mikulski and Benjamin L. Cardin and Virginia Democrats James Webb and Mark Warner joining the pack. Only six senators -- all Democrats -- had the courage to vote against this wrong-headed amendment: Richard J. Durbin (Ill.), Tom Harkin (Iowa), Patrick J. Leahy (Vt.), Carl M. Levin (Mich.), and Rhode Island's Jack Reed and Sheldon Whitehouse.

As a result of the vote, the president is prohibited from using taxpayer funds to order the release of any detainee into the United States, including those cleared by the Bush administration and the federal courts; he is likewise forbidden to bring any Guantanamo prisoners to the United States for preventive detention. The president must give lawmakers a 45-day heads up before ordering any detainee prosecuted in a U.S. court proceeding and he must give Congress 15 days' notice of his decision to send a detainee to another country.

It is therefore easy to understand why Mr. Obama may be tempted to circumvent lawmakers: The Post reported that he is considering an executive order to establish a preventive detention regime for those who may be too dangerous to release but against whom there is not enough usable evidence to file formal charges in a traditional courtroom. But he should resist the temptation of acting alone. Mr. Bush often did end runs around lawmakers for fear of being constrained; eventually the courts circumscribed his powers more than they likely would have if he had worked with Congress. Mr. Obama's best course lies in opening discussions with Congress on fashioning a preventive detention regime that will ensure due process and humane treatment of detainees. Let's hope that there will be leaders on the Hill available for thoughtful discussion.

Monday, June 8, 2009

Bipartisan WMD Panel Criticizes Obama Plan To Fund Flu Vaccine

Bipartisan WMD Panel Criticizes Obama Plan To Fund Flu Vaccine. By Spencer S. Hsu
Washington Post, Monday, June 8, 2009

President Obama's contingency plan to help finance production of a swine flu vaccine with funds set aside to develop defenses against biological attacks would weaken the nation's preparedness for terrorism, the leaders of a bipartisan commission on weapons of mass destruction said yesterday.

The White House asked Congress on Tuesday for authority to spend up to $9 billion more for an H1N1 flu vaccine and other preparations against the novel flu strain that first appeared in April.
Of the total, the administration asked Congress to provide $2 billion in "contingent" funding. Another $3 billion could come from the Project BioShield Special Reserve Fund, created in 2004 to field countermeasures against nuclear, biological or chemical threats; $3.1 billion from stimulus funds appropriated to spur economic recovery; and $800 million from the Department of Health and Human Services.

"Using BioShield funds for flu preparedness will severely diminish the nation's efforts to prepare for WMD events and will leave the nation less, not more, prepared," the commission's chairman, former senator Bob Graham (D-Fla.), and vice chairman, former senator James M. Talent (R-Mo.), wrote to Obama in a letter sent yesterday and in another dated Wednesday to his budget director, Peter Orszag.

Raiding BioShield would weaken the ability of private firms to raise credit and sustain long-term research and development on drugs to respond to bioterror threats, for which there is no private market, industry officials said. The former lawmakers said the H1N1 influenza virus poses a public health threat that merits its own funding.

They also encouraged Obama to name Vice President Biden to take charge of the administration's efforts to counter weapons proliferation and WMD terrorism.

"You already know what he offers: long experience working on WMD, an understanding of how to move the levers of power to meet urgent goals, and most important, the unique credibility and stature of his office," Graham and Talent wrote.

The Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, created by Congress in 2007, warned in December that an attack involving such weapons was more likely than not to occur somewhere in the world by the end of 2013, probably involving a biological weapon.

The commission's opposition followed other criticism of the administration's flu vaccine funding plans. Congressional Republicans attacked the White House's request for authority to use up to 1 percent of $311 billion in discretionary stimulus funds, or $3.1 billion, saying Democrats were using the economic recovery money as a "slush fund."

"It's not necessarily the policy issue that we're concerned about," said Jennifer Hing, minority spokeswoman for the House Appropriations Committee. "It's the concern that this could potentially open the door for stimulus monies to be used for other Democratic priorities that turn up, instead of having extra money lying around being used to pay down the deficit."

White House officials said they expect that the request for $2 billion marked "Unanticipated Needs for Influenza" will be adequate for flu preparations, when combined with another $1.5 billion to $2.05 billion that Congress is already set to approve. HHS officials have already committed to spending $1.4 billion and said last month that plans were moving forward to develop as many as two doses of H1N1 flu vaccine for each American, or about 600 million doses, although a formal decision has not been made.

But the president asked for the additional BioShield, stimulus and HHS discretionary funds as a matter of prudence in case the virus mutates into a much more lethal form and a swift and massive response is needed in coming months, Obama aides said.

"Except in extraordinary circumstances, BioShield funds will not be accessed," said Kenneth S. Baer, spokesman for the Office of Management and Budget.

The BioShield fund has $3 billion left of $5.6 billion it was given to spend over 10 years to research and develop medicines to care for Americans after a WMD terrorist attack, an OMB official said.

Sunday, May 31, 2009

Why It's So Hard to Close Gitmo

Why It's So Hard to Close Gitmo. By David B Rivkin Jr and Lee A Casey
Holding jihadists in existing U.S. facilities probably violates international law.
WSJ, May 30, 2009

President Barack Obama is retaining many important Bush administration antiterror policies, including the detention without trial of jihadist captives as well as military commissions. He is determined, however, to close the Guantanamo detention facility because he believes doing so will not cause many problems in the U.S., and will improve our image abroad and bolster international support for U.S. antiterror policies. He will be disappointed on all counts.

Guantanamo has always been a symbol, rather than the substance, of complaints against America's "war on terror." It's the military character of the U.S. response to 9/11 that foreign and domestic critics won't accept.

There are also longstanding ideological currents at work here. At least since the 1970s, "progressive" international activists have sought to level the playing field between nation states (especially the U.S. and Israel) and nonstate actors such as the Palestine Liberation Organization and Hamas. Although international humanitarian law is supposed to apply neutrally to all belligerents, international opinion now gives nonstate actors far more leeway to ignore fundamental norms such as the rule against deliberately targeting civilians. The underlying implication is that terrorist tactics, however regrettable, are justified as the only means of achieving laudable goals like national liberation.

This mindset will not change if Guantanamo closes. At the same time, closing the detention facilities will create numerous headaches quite beyond the security issues raised by dangerous detainees who might escape or serve as a magnet for terrorist attacks in U.S.-based facilities.

One immediate problem, identified by FBI Director Robert Mueller, is the very real possibility that the Guantanamo detainees will recruit more terrorists from among the federal inmate population and continue al Qaeda operations from the inside. Radical Islamists already preach jihad in prisons -- this was how the just-arrested New York synagogue bombers were recruited -- and criminal gangs have proved that a half-in/half-out management model works.

A longer-term problem is that once Guantanamo is closed the option of holding captured enemy combatants any place overseas will be undermined. Over time, more and more such individuals, including the ones convicted by military commissions, would have to be brought to the U.S., especially as Europe backs away from taking such individuals. Aggregating the world's worst jihadists on American soil, from which they can never be repatriated, is not a smart way to fight a war.

Meanwhile, the legality of incarcerating captured terrorists in U.S. domestic prisons is far from clear. Today the Guantanamo detainees are held under well-established laws of war permitting belligerents to confine captured enemies until hostilities are over. This detention, without the due process accorded criminal defendants, has always been legally justified because it emphatically is not penal in nature but a simple expedient necessary to keep captives from returning to the fight. It was on this basis that the Supreme Court approved the detention of war-on-terror captives, without trial, in Hamdi v. Rumsfeld (2004).

The Guantanamo detainees are "unlawful" enemy combatants and not "prisoners of war" under the Geneva Conventions. Yet they are still combatants, not convicts. By contrast, the individuals held in the federal prison system, and especially those in the maximum security facilities suggested for the Guantanamo detainees, are convicted criminals.

It is very doubtful that under the customary laws and customs of war, the Hamdi decision, or Common Article 3 of the Geneva Conventions (which the Supreme Court also has applied to the war on terror) the Guantanamo detainees can be treated like convicted criminals and consigned without trial to the genuinely fearsome world of a super-max prison.

Segregating the detainees from the overall prison population -- to maintain the "non-penal" character of their confinement as well as to frustrate any recruiting activities or continuing al Qaeda operations -- is also legally dubious. Unless a new Guantanamo is to be constructed, this segregation will have to take place in existing isolation wards used to discipline (and sometimes protect) federal inmates.

This could mean solitary confinement, perhaps for 23 hours a day, without regard to a detainee's conduct or disciplinary status. The chances that courts would consider this to be the "humane" treatment required by the Geneva conventions are not overwhelming.

The Obama administration can be certain these conditions will be challenged in the courts, and it is difficult to see how, in light of current judicial attitudes, the detainees will be denied the entire panoply of constitutional rights claimed by ordinary inmates -- including lawsuits challenging their conditions of confinement. If courts conclude that these conditions are unconstitutional, or that they cannot be held indefinitely as enemy combatants, judges could mandate the release of these jihadists into the U.S.

Mr. Obama can still reverse his decision to close Guantanamo. This would cost him significant political support among his base. But making unpopular decisions to serve the national interest is a president's duty and obligation. In this regard, Mr. Obama should follow his predecessor's example and put American national security before the vagaries of popular approval.

Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush, and have served as expert members of the U.N. Subcommission on the Promotion and Protection of Human Rights.

Friday, May 29, 2009

US foots the bill for terrorists - Poor oversight of US aid programs at fault

U.S. foots the bill for terrorists. By Joel Mowbray
Poor oversight of U.S. aid programs at fault
Washington Times, Friday, May 29, 2009

If President Obama is serious about tackling the ever-elusive goal of achieving peace in the Middle East, he should start his efforts not with prodding Israel or the Palestinians, but rather a little closer to home -- Foggy Bottom.

Through either deliberate neglect or simple ineptitude, the State Department has made U.S. taxpayers complicit in perpetuating the single greatest impediment to Middle East peace: an increasingly radical Palestinian society that despises Israel and embraces terrorism.

Despite multiple government audits and several changes enacted in the law over the past few years, the department still cannot ensure that U.S. taxpayer dollars are not enriching terrorists or underwriting terrorist propaganda in schools across the West Bank and Gaza. According to a critical report issued last week by the Government Accountability Office, the auditing arm of Congress, the State Department has fallen short overseeing aid to Palestinians through both the U.S. Agency for International Development and the United Nations Relief and Works Agency, which administers Palestinian refugee camps.

This means in practical terms that many of the Palestinians who are consuming a steady diet of Islamist indoctrination and glorification of violence receive this brainwashing courtesy of the U.S. taxpayer. It doesn't require high-level deductions to predict how badly this wounds - if not kills - any hope for Palestinian society to embrace peaceful coexistence with a Jewish state of Israel.

Given the billions of dollars U.S. taxpayers have steered to the Palestinians - almost $600 million just last year - the United States has as much leverage as anyone to put a stop to this nonsense. Unfortunately, though the State Department has done a bit to improve matters, it has not done nearly enough.

The GAO report, requested in part because of congressional concerns over reporting by this journalist in The Washington Times, indicates that the State Department has dropped the ball on overseeing UNRWA. For example, existing U.S. law requires that UNRWA take "all possible measures" to prevent assistance from going to anyone who has engaged in any terrorist activity. The department, however, "has not defined the key term 'all possible measures' or defined nonconformance."

Some of GAO's recommendations are comically simple, such as "establishing criteria to evaluate UNRWA's efforts." Others are so obviously necessary that it's shocking they haven't been required all along, such as "screening the names of UNRWA contractors against lists of individuals and entities of concern to the United States."

Leading congressional efforts to prevent U.S. taxpayer money from flowing to terrorists or their propaganda has been Rep. Steven R. Rothman, New Jersey Democrat. Earlier this year, he introduced a resolution calling for UNRWA to put its textbooks on the Internet for public inspection and for the United States to screen the agency's payroll for terrorists.
His ultimate goal, he explains, is simple: "Not one penny of U.S. taxpayer dollars should go either directly or indirectly to anyone associated with Hamas or any other terrorist organization. Nor should any go to terrorist propaganda in classrooms."

Congress moved one step further in that direction earlier this month. In the supplemental appropriations bill that included an additional $119 million for UNRWA for the current fiscal year, lawmakers made it clear they are not happy with the status quo. The spending bill requires the State Department to propose a plan to increase the transparency and accountability of UNRWA. More important, it sets aside $1 million for the department's inspector general to audit USAID.

Within the next month, the House foreign aid appropriators could go even further in the spending bill for 2010. Mr. Rothman has several proposals to increase accountability and transparency for both USAID and UNRWA.

However, changing the law alone is not enough. Judging by current procedures, the State Department seems intent on not enforcing the laws passed by Congress.

Lawmakers have dictated repeatedly and explicitly that no U.S. taxpayer funds can go to any organization that has even "advocated" terrorism - meaning no money should go to groups whose leaders have declared on Al-Jazeera or elsewhere that suicide bombers are "martyrs." This is not trivial. Figures who lionize terrorists and praise evil acts poison society and ultimately help cause more terrorism.

The State Department's bar that contractors and aid recipients must clear is much lower. Even under the most thorough vetting the department conducts, essentially only people who have actively participated in terrorism would be declared ineligible. It appears the department hasn't even bothered to think of a way to determine which people trying to receive U.S. taxpayer dollars have advocated terrorism.

Considering Europe's and the United Nations' longstanding indifference to Palestinian radicalism, the United States likely is the only party that can start to drain the cultural swamp. The stakes are high. If the United States doesn't put its full efforts toward real peace, what signal does that send to Israel and the Palestinians?

Joel Mowbray is an investigative journalist living in New York City.

US plans appeal on abuse photos

U.S. plans appeal on abuse photos, by Lyle Denniston
Thursday, May 28th, 2009 9:15 pm

The Obama Administration has decided to go to the Supreme Court — if Congress does not act first — to stop public disclosure of an array of U.S. Army photos that apparently show severe abuse of terrorist detainees in Iraq and Afghanistan. The Justice Department on Thursday asked the Second Circuit Court to put a ruling ordering release on hold because the Solicitor General has decided to appeal to the Supreme Court “absent intervening legislation.”

A motion to recall the Circuit Court mandate, along with other court papers, can be found here. This was the latest legal maneuver by the Administration since President Obama changed his mind, from agreeing to release the photos to opposition to their disclosure.

The Second Circuit ruled last September, in American Civil Liberties Union, et al., v. Department of Defense (docket 06-3140), that the photos must be released under the Freedom of Information Act. After the Circuit Court refused in March to rehear the case en banc, the Administration decided not to take the case on to the Supreme Court, and the Circuit Court issued its mandate.

The President decided this month, however, that release of the photos “would pose an unacceptable risk of danger to U.S. troops in Afghanistan and Iraq.” A federal judge in New York was then advised of the switch in position. Shortly afterward, the Senate took up legislation to block the release — the Detainee Photographic Records Protection Act — by changing the language of the Freedom of Information Act.

The Senate adopted that provision May 21 as part of a new government funding bill. The House version of that bill does not include the photos provision, but the Senate has asked for a conference with the House to work out the differences between the two bills — an action expected to occur early in June.

The deadline for filing a petition for review in the Supreme Court is now June 9. Under the Court’s Rules, if the Administration wanted a postponement of the filing deadline, it would have to ask for an extension ten days before the deadline — that is, in this case, by no later than this weekend.

In the motion filed in the Circuit Court Thursday, Solicitor General Elena Kagan and other Justice Department officials noted that, if both houses of Congress adopt the FOIA amendment, the Defense Secretary would be allowed “to preclude release under FOIA of the photographs at issue in this case.”

“If the aforementioned bill does not become law by the deadline for seeking Supreme Court review, the United States will file a petition for a writ of certiorari,” the motion said. “Recalling the mandate would serve the important purpose of preserving the status quo pending a determination by the Supreme Court.”

To bolster its argument that disclosure of the photos would put U.S. troops abroad at risk, the papers included sworn statements to that effect by Gen. David H. Petraeus, the overall U.S. military commander for Iraq and Afghanistan, and Gen. Raymond T. Odierno, U.S. commander in Iraq. (Those statements are included, in redacted form, in the papers linked above.)

At issue in the case are 44 photos that are covered by the ACLU request for release. The Administration said in its motion, however, that the Circuit Court ruling would also apply to “a substantial number” of additional photographs.

“The potential scope of this [Circuit] Court’s ruling makes it critically important that the Supreme Court have an opportunity to address the pressing legal questions in this case,” the new filing argued.

Although the proposed legislation has not yet been enacted, the motion noted, “the Senate’s action indicates the imminent possibility of a significant change in the law that strongly reinforces the grounds for recall of the mandate.”

Obama continues to trash Bush in words — but his actions speak louder

Bush Obsessive-Compulsive Disorder. By Victor Davis Hanson
Obama continues to trash Bush in words — but his actions speak louder.
National Review On-line

Last July I wrote a column entitled “Barack W. Bush” outlining how candidate Barack Obama was strangely emulating Bush policies — even as he was trashing the president.

Nearly a year later, President Obama has continued that schizophrenia, criticizing Bush while keeping in place Bush’s anti-terrorism protocols. The result of this Bush Obsessive-Compulsive Disorder is that, thanks to Obama, history will soon begin reassessing George W. Bush’s presidency in a more positive light.

Why? Because the more Obama feels compelled to trash Bush, the more he draws attention to the fact that he is copying — or in some cases falling short of — his predecessor. He seems to wish to frame his presidency in terms of the Bush years, even though such constant evocation is serving his predecessor more than it is serving Obama himself.

For eight years conservatives whined — and Democrats railed — at the Bush deficits. In the aggregate over eight years they exceeded $2 trillion. The administration’s excuses — the 2000 recession; 9/11; two wars, in Afghanistan and Iraq; Katrina; and two massive new programs, No Child Left Behind and Medicare Prescription Drug — fell on deaf ears.

Between 2001 and 2008 we still spoke of annual budget shortfalls in billions of dollars. But an early effect of the Obama administration is that it has already made the Bush administration’s reckless spending seem almost incidental. In the first 100 days of this government we have learned to speak of yearly red ink in terms of Obama’s trillions, not Bush’s mere billions. Indeed, compared to Obama, Bush looks like a fiscal conservative.

Another complaint was the so-called culture of corruption in the Republican Congress — and the inability, or unwillingness, of the Bush administration to address party impropriety. Jack Abramoff, Larry Craig, Duke Cunningham, Tom DeLay, and Mark Foley were each involved in some sort of fiscal or moral turpitude that — according to critics — was never convincingly condemned by the Bush administration.

But compared to some of the present Democratic headline-makers, those were relatively small potatoes. Speaker Nancy Pelosi has slurred the CIA and accused it of habitually lying to Congress. Rep. Charles Rangel has not paid his income taxes fully, and has improperly used his influence to lobby corporations for donations; he has also violated rent-stabilization laws in New York. Sen. Chris Dodd has received discounts and gifts from shady corporate insiders in clear quid-pro-quo influence peddling. Rep. Barney Frank got campaign money from Fannie Mae before it imploded, despite the fact he was charged with regulating the quasi-governmental agency — which at one time hired his boyfriend as a top executive. Former Rep. William Jefferson, an outright crook, is about to go on trial in federal court.

As for other prominent Democrats, the sins of Blago and Eliot Spitzer bordered on buffoonery. A series of Obama cabinet nominations — Daschle, Geithner, Richardson, Solis — were marred by admissions of tax evasion and the suspicion of scandal. In other words, should either the Democratic leadership or President Obama now rail about a “Culture of Corruption” — and neither unfortunately has — the public would naturally assume a reference to Democratic misdeeds.

For the last eight years, a sort of parlor game has been played listing the various ways the Bush anti-terror policies supposedly destroyed the Constitution. Liberal opponents — prominent among them Sen. Barack Obama — railed against elements of the Patriot Act, military tribunals, rendition, wiretaps, email intercepts, and Predator drone attacks. These supposedly unnecessary measures, plus Bush’s policies in postwar Iraq, were said to be proof, on Bush’s part, of either paranoia or blatantly partisan efforts to scare us into supporting his unconstitutional agenda.

Now, thanks to President Obama, the verdict is in: All of the Bush protocols turned out to reflect a bipartisan national consensus that has kept us safe from another 9/11-style attack.

How do we know that?

Because President Obama — despite earlier opposition and current name changes and nuancing — has kept intact the entire Bush anti-terrorism program. Apparently President Obama has kept these protocols because he suspects that they help to explain why his first few months in office have been free of successful terrorist attacks — witness the foiled plot earlier this month to murder Jews in New York City and shoot down military planes in upstate New York.

There are only two exceptions to Obama’s new Bushism. Both are revealing. The president says he wishes to shut down Guantanamo in a year, after careful study. But so far no one has come up with an alternative plan for dealing with out-of-uniform terrorists caught on the battlefield plotting harm to the United States. That’s why Obama himself did not close the facility immediately upon entering office, and why the Democratic Congress has just cut off funding to close it. So we are left with the weird paradox that Obama hit hard against his predecessor for opening Guantanamo, while members of his own party are doing their best to keep it open. Obama says he opposes waterboarding and calls it torture. Many of us tend to agree. But despite the partisan rhetoric of endemic cruelty, we now learn that the tactic was used on only three extraordinarily bad detainees.

Furthermore, the administration that disclosed the once-classified technique to the public now refuses to elaborate on whether valuable information that saved lives emerged from such coerced interrogations.

Meanwhile, liberal congressional icons like Jay Rockefeller and Nancy Pelosi are on record as being briefed about the technique — and, by their apparent silence as overseers, de facto approving it. Senator Schumer, remember, all but said that we must not rule out the resort to torture in the case of terrorist suspects.

Mini-histories have already been written blasting Bush for unprecedented deficits, for being in bed with a sometimes corrupt Republican Congress, and for weakening our civil liberties. Now the historians will have to begin over again and see Bush as a mere prelude to a far more profligate, and ethically suspect, administration.

More important, President Bush bequeathed to President Obama a successful anti-terrorism template that the latter has embraced and believes will keep the nation safe for another eight years. And, oddly, we are the more certain that is what he believes, the more a now obsessive-compulsive President Obama attacks none other than former President Bush.

— Victor Davis Hanson is a senior fellow at the Hoover Institution and a recipient of the 2007 National Humanities Medal and the 2008 Bradley Prize.

Monday, May 25, 2009

Leo Thorsness: Torture thoughts on Memorial Day

Leo Thorsness: Torture thoughts on Memorial Day. By Scott Johnson
Powerline blog, May 25, 2009 at 10:00 AM

Leo Thorsness is the Minnesota native who was awarded the Medal of Honor for unbelievable heroics in aerial combat over North Vietnam in April 1967. Within a few days of his heroics on his Medal of Honor mission, Col. Thorsness was shot down over North Vietnam and taken into captivity. In captivity he was tortured by the North Vietnamese for 18 straight days and periodically thereafter until his release in 1973.

Col. Thorsness recounts his experiences in Surviving Hell: A POW's Journey, about which I wrote at length here. In its own modest way, it is a great and timely book.

Thinking of Memorial Day in the context of current controversies, Col. Thorsness wrote the folllowing column:

Think Memorial Day and veterans usually come to mind. Think veterans and our national debate about torture comes to mind.

Of the 350 "old timer" Vietnam POWs, the majority were severely tortured by the North Vietnamese. Ironically the Department of Defense did not formally study torture after the POWs were released in 1973. We provided our military an actual "torture database library" but to this day, the Pentagon has never tapped the resource to help clarify national debate about "what is torture."

I and many other Vietnam POWs were tortured severely - some were tortured to death. Several POWs wrote books after our release in 1973 describing the torture in detail. Mike McGrath's book had extensive drawings vividly depicting types of torture the North Vietnamese used. (A gallery of McGrath's drawings is accessible here.)

When I wrote Surviving Hell in 2008, initially I did not include discussions of torture, knowing that others had earlier described it. My editors encouraged me to add it; if our younger population reads only current books, they may perceive that the treatment at Abu Grab and Gitmo was real torture. I added my experience being tortured so that readers will know that there is abuse and humiliation, and there is torture.

If someone surveyed the surviving Vietnam POWs, we would likely not agree on one definition of torture. In fact, we wouldn't agree if waterboarding is torture. For example, John McCain, Bud Day and I were recently together. Bud is one of the toughest and most tortured Vietnam POWs. John thinks waterboarding is torture; Bud and I believe it is harsh treatment, but not torture. Other POWs would have varying opinions. I don't claim to be right; we just disagree. But as someone who has been severely tortured over an extended time, my first hand view on torture is this:

Torture, when used by an expert, can produce useful, truthful information. I base that on my experience. I believe that during torture, there is a narrow "window of truth" as pain (often multiple kinds) is increased. Beyond that point, if torture increases, the person breaks, or dies if he continues to resist.

Everyone has a different physical and mental threshold of pain that he can tolerate. If the interrogator is well trained he can identify when that point is reached - the point when if slightly more pain is inflicted, a person no longer can "hold out," just giving (following the Geneva Convention) name, rank, serial number and date of birth. At that precise point, a very narrow torture "window of truth" exists. At that moment a person may give useful or truthful information to stop the pain. As slightly more pain is applied, the person "loses it" and will say anything he thinks will stop the torture - any lie, any story, and any random words or sounds

This torture "window of truth" is theory to some. Having been there, it is fact to me. While in torture I had the sickening feeling deep within my soul that maybe I would tell the truth as that horrendous pain increased. It is unpleasant, but I can still dredge up the memory of that window of truth feeling as the pain level intensified.

Our world is not completely good or evil. To proclaim we will never use any form of enhanced interrogations causes our friends to think we are naïve and eases our enemies' recruitment of radical terrorists to plot attacks on innocent kids, men and women - or any infidel. If I were to catch a "mad bomber" running away from an explosive I would not hesitate a second to use "enhanced interrogation," including waterboarding, if it would save lives of innocent people.

Our naïveté does not impress radical terrorists like those who slit the throat of Daniel Pearl in 2002 simply because he was Jewish, and broadcast the sight and sound of his dying gurgling. Publicizing our enhanced interrogation techniques only emboldens those who will hurt us.

At the end of the second paragraph of his column, Col. Thorsenss adds the following footnote: "Kepler Space University is beginning a study of Vietnam POW torture, headed by Professor Robert Krone, Col., USAF (ret.)." Thanks to Col. Thorsness for permission to post his column here today.

New Evidence Points to Hezbollah in Hariri Murder

New Evidence Points to Hezbollah in Hariri Murder. By Erich Follath
Der Spiegel, May 23, 2009

The United Nations special tribunal investigating the murder of former Lebanese Prime Minister Rafik al-Hariri has reached surprising new conclusions -- and it is keeping them secret. According to information obtained by SPIEGEL, investigators now believe Hezbollah was behind the Hariri murder.

Interrogations and Presidential Prerogative - The Executive and substantial discretionary powers

Interrogations and Presidential Prerogative. By Walter Berns
The Founders created an executive with substantial discretionary powers.
WSJ, May 25, 2009

Recently, an Episcopal church in Bethesda, Md., displayed a banner with the following words: "God bless everyone (no exceptions)." I confessed to the rector of my own church that, try as I might, I simply could not obey this injunction. Judging by what he had to say about "enhanced" interrogations, Sen. Lindsey Graham (R., N.C.) seems not to share my difficulty.

Mr. Graham believes that we're either a rule-of-law nation or we're not, and no exceptions. "I don't love the terrorists. I just love what Americans stand for," he said in an interview with Newsweek in 2006. His point was that our definitions of torture should not vary with the sort of person being questioned -- terrorists, for example, or merely prisoners of war.

Mr. Graham's position is similar to the one taken by Chief Justice Roger Brooke Taney during the Civil War. In 1861, Confederate sympathizers in Maryland were burning railroad bridges, tearing up their tracks, and attacking federal troops so as to prevent them from reaching the national capital. Since local officials did nothing about this, Abraham Lincoln did. He ordered the military to suspend the writ of habeas corpus, which led to the arrest and imprisonment of John Merryman, a leader of the sympathizers.

Chief Justice Taney ruled in Ex Parte Merryman (1861) that only Congress could suspend the writ of habeas corpus and ordered Merryman released. Lincoln disobeyed the order, believing that the executive must sometimes do things it would not do in ordinary times. Would he have done this if the issue had been the interrogation of terrorists? Does the law have something to say about this?

And would Taney and Graham find support for their views in the writings of our Founders or their philosophical mentors, particularly John Locke, the 17th century Englishman sometimes referred to as "America's philosopher"? Locke is the source of our attachment to the rule of law and the priority of the legislative power.

Locke argued in the Second Treatise of Civil Government that the "first and fundamental law is the establishment of the legislative power." And so it is that the first article of the U.S. Constitution is devoted to the legislative power. There is safety in law, he said; the law is "promulgated and known to the people," and everyone without exception is subject to it.

But Locke admitted that not everything can be done by law. Or, as he said, there are many things "which the law can by no means provide for." The law cannot "foresee" events, for example, nor can it act with dispatch or with the appropriate subtlety required when dealing with foreign powers. Nor, as we know very well indeed, can a legislative body preserve secrecy.

Such matters, Locke continued in the Second Treatise, should be left to "the discretion of him who has the executive power." It is in this context that he first spoke of the "prerogative": the "power to act according to discretion, for the public good without the prescription of the law, and sometimes even against it." He concluded by saying "prerogative is nothing but the power of doing public good without a rule" (italics in the original).

Did the Framers find a place in our Constitution for this extraordinary power? What, if anything, did they say on the subject or, perhaps more tellingly, what did they not say?

They said nothing about a prerogative or -- apart from the habeas corpus provision -- anything suggesting a need for it. But they provided for an executive significantly different from -- and significantly more powerful than -- the executives provided for in the early state constitutions of the revolutionary era. This new executive is, first of all, a single person, and, as the Constitution has it, "he shall be Commander in Chief of the Army and Navy." This is no mean power; Lincoln used it to imprison insurgents and to free the slaves.

The Framers seemed to be aware of what they were doing when they established the office. I draw this conclusion from their reaction when the office was first proposed.

According to the "Records of the Federal Convention of 1787," on June 1, a mere two weeks into the life of the convention, James Wilson "moved that the Executive consist in a single person." Charles Pinckney seconded the motion. Then, "a considerable pause" ensued, and the chairman asked if he should put the question. "Doc Franklin observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put and Mr. Rutledge animadverted on the shyness of gentlemen. . . ."

Why the silence? Why were they shy? Apparently because the proposal was so radically different from the executives provided in the state constitutions (and the fact that there was no executive whatsoever under the Articles of Confederation). All of these governmental bodies (except New York), and especially those whose constitutions were written in the years 1776-78, included "almost every conceivable provision for reducing the executive to a position of complete subordination," as Charles C. Thach Jr., noted in "The Creation of the Presidency, 1775-1789." The gentlemen were also shy because the provision for a single executive reminded them of George III and of what he had done.

This new, single executive is also required to take an oath to "preserve, protect and defend the Constitution of the United States." This was the provision of his oath President George W. Bush used to capture, hold and interrogate terrorists.

Questions arise: Was the Constitution or, better, the nation actually in jeopardy after 9/11? Was Mr. Bush entitled to imprison the terrorists in Guantanamo? Were the interrogations justified? Were they more severe than necessary? Did they prove useful in protecting the nation and its citizens? These are the sorts of questions Locke may have had in mind in his chapter on the prerogative. Who, he then asked, shall be judge whether "this power is made right use of?" Initially, of course, the executive but, ultimately, the people.

The executive in our case, at least to begin with, is represented by the three Justice Department officials who wrote the memos that Mr. Graham and many members of the Obama administration have found offensive. They have been accused of justifying torture, but they have not yet been given the opportunity in an official setting or forum to defend what they did.

That forum could be a committee of Congress or a "truth commission" -- so long as, in addition to the assistance of counsel, they would be judged by "an impartial jury," have the right to call witnesses in their favor, to call for the release of evidence including the CIA memos showing the success of enhanced interrogations, and the right to "confront the witnesses" against them as the Constitution's Fifth and Sixth Amendments provide. There is much to be said for a process that, among other things, would require Nancy Pelosi to testify under oath.

Mr. Berns is a resident scholar at the American Enterprise Institute.

Wednesday, May 20, 2009

On Professor Goldsmith's New Republic article on President Obama approach to fighting terrorism

The Goldsmith Variations. By Scott Johnson
Powerline Blog, May 20, 2009 at 5:29 AM

Professor Jack Goldsmith's New Republic article gives President Obama high marks for his approach to fighting terrorism, in part because he appears to be continuing controversial policies established by President Bush. Paul Mirengoff commented on Goldsmith's article here. Professor Goldsmith is a preeminent authority with on-the-job professional experience in the issues he addresses in the article.

Several of the policies considered by Professor Goldsmith are policies for which Obama condemned the Bush administration (and for which he continues to condemn it). I deduce from Professor Goldsmith's account that the Democratic critique of Bush administration national security policies has been long on partisanship and short on principle. Professor Goldsmith, however, commends Obama with respect to his superior diplomacy in continuing these policies.

Professor Goldsmith does not indict Obama for his partisan treatment of the issues. According to Professor Goldsmith, Obama is merely finding governing harder than campaigning. That is certainly one way of putting it. Professor Goldsmith explains Obama's actions by reference to the fact "that many of the Bush policies reflect longstanding executive branch positions." One might think that this basic fact places Obama's "campaigning" in a poor light, along with his continuing criticism of the Bush administration policies he is following.

Goldsmith criticizes the expansive rhetoric of the Bush administration on executive power based on Justice Department opinions, presidential signing statements and Vice President Cheney's express desire to "leave the presidency stronger than we found it." He finds this rhetoric unprecedented. If this expansive rhetoric was the keystone of Bush administration policies, one might think that Professor Goldsmith could have quoted a full sentence from some speech given by President Bush in the course of his eight years in office.

Here Goldsmith compares Obama favorably to Lincoln and Roosevelt, by contrast with President Bush:

[The Obama administration] seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

Finally, the Obama administration is following the Lincoln-Roosevelt approach to rhetoric and public symbols. The president talks frequently about the importance of adhering to constitutional values, he worries publicly about terrorism policies going too far, and he suggests that he is looking for ways to keep them in check. He has said not a word about presidential prerogative in national security or the importance of expanding his power. Closing GTMO--especially in the face of loud opposition--is an important symbol of the new president's commitment to the rule of law even if the detainees ultimately receive no greater rights. The small restrictions his administration has placed on itself as compared to the late Bush practices are public indications of restraint, especially when contrasted with the early Bush insistence on maximum presidential flexibility at all costs. They are yet more significant because the Obama administration is embracing them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny.

Is this contrast between Bush on the one hand, and Lincoln and Roosevelt on the other hand, fair? Does Bush compare unfavorably to them with respect to sensitivity to civil liberties in wartime? (As for public rhetoric, no one, including Obama, can compare with Lincoln.)

The constitutional powers of the commander-in-chief in time of war are critical to the system established by the framers. Lincoln's analysis and exercise of the commander-in-chief's war powers during the Civil War both serve to illuminate those powers and to place Bush's actions in a relevant context.

Lincoln's primary aim as commander-in-chief was of course the preservation of the Union -- the restoration of democracy and the rule of law among the seceding states. He meant to demonstrate that "among free men, there can be no successful appeal from the ballot to the bullet; and that those who take such appeal are sure to lose their case, and pay the cost."
Indeed, as Professor Daniel Farber recalls in Lincoln's Constitution, Lincoln originally called up the militia in the name of the rule of law because "the laws of the United States have been for some time past, and now are opposed, and the execution thereof obstructed" by "combinations too powerful to be suppressed by the ordinary course of judicial proceedings."

In subduing the Confederacy, Lincoln took his bearings by his constitutional duty to "preserve, protect and defend the Constitution." Though this is the subject for another day, it should be noted that, given the Supreme Court's handiwork in the Dred Scott case, he was not an advocate of judicial supremacy. As president and commander-in-chief, he suspended habeas corpus, used martial law, instituted military trials, and exercised power to the limits of his constitutional authority in a manner that suggests the loose nature of those limits when confronted by necessity.

As Farber notes, "several Civil War actions taken under military authority impinged on freedom of speech." Perhaps best known is the case of former Ohio Congressman Clement Vallandingham. As commanding general of the Department of Ohio, Ambrose Burnside prohibited "the habit of declaring sympathies for the enemy." In the spring of 1863, Burnside had Vallandingham arrested for violating the order in a speech calling the war "wicked, cruel and unnecessary."

As Farber recounts, "he called upon his audience to [use the ballot box to] hurl 'King Lincoln' from his throne." The echoes of Vallandingham in the Democrats' recurrent gibes at President Bush are surely inadvertent. The Peace Democrats of 1863 nevertheless sound remarkably like the contemporary Democrats who have castigated President Bush.

In any event, the military commission found Vallandingham guilty of violating Burnside's General Order No. 38 and ordered him confined until the war ended. The ensuing controversy elicited Lincoln's famous letter to Erastus Corning defending the policy of military arrests in the name of public necessity. Lincoln ultimately resolved the controversy over Vallandingham's conviction and confinement by banishing him to Confederate territory (from which he escaped to Canada). Perhaps Lincoln's letter provides an example of the superior rhetorical dexterity that Professor Goldsmith attributes to Lincoln, but he also had more to justify than President Bush ever did.

From the case of Vallandingham, Farber moves on to consider the case of the New York World. The case of the World combines elements of the 2004 presidential campaign and the role played by another New York newspaper of our own day in a way that gives it a surprisingly contemporary feel. As Farber tells it:

Two journalists forged an Associated Press story about a bogus presidential call for drafting four hundred thousand men. (As a signal of desperation by the president, this "news" was supposed to drive up the price of gold, allowing the two men to make a quick profit.) The World fell for the stunt and published the story. Suspecting a Confederate plot, Lincoln ordered the arrest of the editors and publishers, as well as the seizure of the premises. This put the newspaper out of business until the order was countermanded.

So much for Lincoln. What about Franklin Roosevelt? Even before World War II, Franklin Roosevelt was concerned about domestic subversion. In Roosevelt's Secret War: FDR and World War II Espionage, Joseph Persico writes that "[f]ew leaders have been better suited by nature and temperament for the anomalies of secret warfare than FDR." He quotes Roosevelt: "You know that I am a juggler, and I never let my right hand know what my left hand does." As Persico demonstrates (pages 34-36), President Roosevelt's enthusiasm for intelligence extended to prewar domestic wiretapping of "diplomats, journalists, labor leaders and political activists" in the face of newly enacted statutory bans on wiretapping that had been upheld by the Supreme Court.

"I have agreed with the broad purpose of the Supreme Court relating to wiretapping in investigations," Roosevelt instructed J. Edgar Hoover. "However, I am persuaded that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation." Persico summarizes: "In short, never mind Congress, the Supreme Court, or the attorney general's qualms. The nation was in peril." (Persico's reference to Roosevelt's attorney general is of course to future Supreme Court Justice Robert H. Jackson.) Roosevelt's wiretapping program was not blessed by congressional consultation. Neither rhetoric nor public symbols were invoked to support it.

During the war, President Roosevelt did not seem particularly moved by constitutional limits or self-imposed restraint. To take just one example, consider the detention of Japanese American citizens that took place on his order. It took place under the authority of Executive Order 9066 without let or hindrance by the Supreme Court in Hirabayashi and Korematsu . Was this because of Roosevelt's brilliant public tact? I don't think so.

One might well ask whether President Bush ever took any action remotely comparable to these undertaken by Lincoln or Roosevelt at the margin of their authority. Again, I don't think so. Lincoln certainly did not escape the severe censure of his Democratic opponents. Indeed, the vituperation heaped on Bush during his eight years in office by Obama et al. might be roughly comparable to that heaped on Lincoln during his tenure in office. At least to me, Professor Goldsmith's analysis seems lacking in an element of fairness.

Professor Goldsmith's invocation of Franklin Roosevelt in this context is instructive, if not exactly as he intends. It is difficult to imagine Barack Obama wielding the powers of his office against America's foreign enemies with anything like the enthusiasm and ferocity of Roosevelt or, for that matter, Harry Truman, whom Obama seems more apt to apologize for than to emulate.

(On Lincoln, this post closely follows Farber's book at pages 170-173 and 176. For more, see Professor Michael Paulsen's brilliant review of Farber's book in the spring 2004 issue of the University of Chicago Law Review, Mark Neely's Pulitzer Prize-winning The Fate of Liberty, and William Rehnquist's All the Laws But One.)

Why Barack Obama is waging a more effective war on terror than George W. Bush

The Cheney Fallacy. By Jack Goldsmith
Why Barack Obama is waging a more effective war on terror than George W. Bush.
The New Republic Published: Monday, May 18, 2009

Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration 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 does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

The Bush approach to counterterrorism policy included eleven essential elements. Here is the Obama position to date on each.

1. War v. Crime

A bedrock Bush principle was that the threat posed by al Qaeda and its affiliates required the president to assert military war powers. The legality of controversial policies like military detention, military commissions, and targeted killings depends in the first instance on the United States being in a state of war. Many Obama supporters and most allies sharply disagree with the war characterization, and maintain that the criminal justice system--arrest, extradition, civilian trials, and the like--suffices to meet the terror threat. President Obama mostly skirted this issue on the campaign trail. But his administration has embraced the Bush view that, as a legal matter, the United States is in a state of war with al Qaeda and its affiliates, and that the president's commander-in-chief powers are triggered. This position should be unsurprising: Congress has made clear that we are at war with these groups, and the Supreme Court has affirmed that we are.


2. Guantanamo Bay

President Obama has announced that he is closing the detention facility at Guantanamo Bay, Cuba. By itself, this is not a departure from the Bush administration, which also stated a desire to close GTMO. The new administration is implementing this policy with greater vigor, however, and is seriously considering bringing terrorist detainees to the United States. Congress and our allies are throwing up roadblocks to these efforts. Even if the administration overcomes them, closing GTMO may have no material impact on U.S. detention practice. Because the Supreme Court has ruled that habeas corpus rights extend to detainees on the island, the detainees will likely receive no more rights on U.S. soil than in Cuba. The real question is not where the detainees are located, but rather the basis for their detention. On this issue, as explained below, the new president is swimming close to the old one.


3. Military detention

Many Obama supporters thought he would oppose the detention of terrorist suspects without trial. But not so. Last month Secretary of Defense Gates hinted that up to 100 suspected terrorists would be detained without trial. And a few weeks ago the Obama Justice Department filed a legal brief arguing that the president can detain indefinitely, without charge or trial, members of al Qaeda, the Taliban, "associated forces," and those who "substantially support" these groups, no matter where in the world they are captured. Federal district court judge Reggie Walton correctly noted that the Obama administration refinements drew "metaphysical distinctions" with the Bush position that seemed to be "of a minimal if not ephemeral character." The Obama refinements might preclude detention of some suspected terrorists who would be detainable under the Bush regime, but only at the margin. The core Bush legal position remains in place.


4. Habeas Corpus

During the campaign former professor Obama spoke eloquently about the importance of habeas corpus review of executive detentions of enemy soldiers. Habeas corpus is "the foundation of Anglo-American law" and "the essence of who we are," he said. But his administration has applied this principle in the same narrow fashion as the late Bush administration. It has argued that Guantanamo detainees can challenge the "fact, duration, or location" of confinement on habeas review, but not their "conditions of confinement." It has maintained that "the Geneva Conventions are not judicially enforceable by private individuals" in habeas proceedings. And it has made clear its belief that the limited habeas rights it recognizes for the two hundred or so detainees on Guantanamo Bay do not extend to the 600 or so detainees in Bagram Air Base. This latter position might prove more controversial for President Obama than for President Bush. The new president's enlarged military commitment in Afghanistan and Pakistan, combined with the forthcoming closure of Guantanamo, means that the number of suspects detained in Bagram--without charge or trial and without access to lawyers or habeas rights--is likely to increase, perhaps dramatically.


5. Military Commissions

On his first day in office, President Obama sought a 120-day suspension of military commissions that many viewed as their death knell. But last week the Obama administration said it would revive military commissions. The main impetus for this decision, according to The Washington Post, is that the new administration, like its predecessor, concluded that its cases "would fail in federal courts or in standard military legal settings." The new commissions rules have not been published but they will apparently disallow evidence obtained from coercion, admit hearsay only if it is reliable, and give detainees more freedom to choose their attorneys. These are not large changes from the Bush rules as they stood in 2008. Under the Bush regime military judges could and did suppress evidence obtained from coercive interrogations (though not to the same degree as they will be able to do under Obama) and declined to admit unreliable hearsay. And the Obama alteration on defense lawyers does not appear substantial. So, if we map the distance between the rights that suspected terrorists would receive under Bush military commissions and the rights they would receive in civilian trials, suspects tried in Obama military commissions gain relatively little from the Bush baseline.


6. Targeted Killing

Targeted killing is another Bush administration policy being continued, and indeed ramped up, by President Obama. The new administration has used unmanned predator drones to kill suspected al Qaeda targets in Afghanistan and Pakistan at a greater rate than the Bush administration. These more aggressive targeted killings have predictably caused more collateral damage to innocent civilians. In what appears to be the worst episode since 9/11, a predator attack earlier this month killed many dozens of civilians, including many women and children, in the Farah province of Afghanistan. The targeted killing policy has grown very controversial in Afghanistan and among human rights groups. The International Committee of the Red Cross maintains that international law permits targeting only of people "continuously" engaged in hostile actions, and that only "necessary" force can be used against them. This standard would require a significant rollback of the Obama targeted killing program. It is thus not surprising that the Obama State Department views the Red Cross restrictions as "problematic."


7. Rendition

The Obama administration has said that it will continue renditions--the practice, dating back at least to the Clinton administration, of grabbing suspected terrorists in one country and bringing them to another. CIA director Panetta has said that the Obama administration will not render suspects for purposes of torture, and many have seen this position as a rejection of the Bush form of rendition. But despite this rhetoric, the Obama administration will continue to use the Bush-Clinton standard of foreign country assurances concerning torture, a standard that prohibited rendition only when it is "more likely than not"--that is, a greater than 50 percent chance--"that the suspect will be subjected to torture." Because the public knows little about the rendition practice, it is unclear how, if at all, the practice will change under Obama. But the core legal standard articulated by the new administration appears to be the same as its predecessor.


8. Secret Prisons

While the Obama administration has not rejected rendition to third countries, it has dismantled the Bush system of secret overseas prisons (so-called "black sites") and thus has eliminated rendition to and detention in these prisons. Although the Bush administration used these facilities little in recent years, this seems like a departure from the Bush era. But even here the Obama practice may be closer to the late Bush practice than meets the eye. President Obama's executive order barring the CIA from using "detention facilities" contained a loophole for "facilities used only to hold people on a short-term, transitory basis." The degree to which the Obama policy is a true departure from the late Bush practice thus depends on the administration's (probably secret) interpretation of what it means to detain someone on a "short-term, transitory basis."


9. Surveillance

In the summer of 2008, candidate Obama voted to put President Bush's unilateral warrantless wiretapping program, which he had opposed as an abuse of presidential power, on a legally more defensible statutory basis. Obama supported the bill even though it gave telecommunication firms that cooperated with President Bush immunity from lawsuits, a provision Obama disliked. In office, President Obama has not renounced or sought to narrow any of the surveillance powers used by the late Bush administration, and has not sought legislation to reverse the telecom's immunity. Nor has he yet acted to fulfill his campaign pledge to significantly strengthen the Privacy and Civil Liberties Board that oversees and protects civil liberties in intelligence gathering. The Obama surveillance program appears to be identical to the late Bush era program.


10. State Secrets

The state secrets doctrine allows the government to prevent the disclosure of evidence in court based on its view that the disclosure would endanger national security. Candidate Obama criticized the Bush administration's use of this doctrine. But in at least three lawsuits growing out of Bush-era surveillance and rendition practices, the Obama Justice Department endorsed the same broad view of the state secrets privilege as the Bush administration. President Obama said last month that "the state secret doctrine should be modified" to make it a less "blunt instrument," and his lawyers are seeking ways to narrow the doctrine in some cases. But it is unclear how far this initiative will go, and in any event for now the Obama position is the Bush position.


11. Interrogation

On his first day in office President Obama signed an executive order requiring the CIA to use only the relatively benign techniques approved by the military field manual. He later released and rejected Department of Justice legal interpretations of the Torture statute and related laws. This is a large change in announced policy from the Bush administration, and the change that the former Vice President seems to like least. But it is less of a departure from the late Bush practice than meets the eye. Several reports suggest that a 2006 Supreme Court ruling, legislation concerning interrogation that same year, and growing public opprobrium led the Bush team, by 2007, to narrow the range of CIA-approved interrogation techniques, especially as compared to 2002-2003. Moreover, the Obama executive order established a task force to study whether the CIA should be able to use different interrogation techniques than the military, and CIA Director Panetta supports tougher interrogation techniques for his agency in some circumstances. As a result, the jury is still out on the differences between CIA interrogation techniques used during the late Bush administration and those ultimately used by Obama's CIA.

The Obama administration is still debating many of these issues, and its final policies are not all set. Its changes to Bush practices thus far--cutting back on secret detentions, probable new restrictions on interrogation, and relatively small procedural changes to military commissions--will leave some suspected terrorists in a better place than they would have been under the Bush regime (although Obama's increase in targeted killings will likely result in more deaths and injuries, without due process, to terror suspects and innocent civilians). Even with these caveats, at the end of the day, Obama practices will be much closer to late Bush practices than almost anyone expected in January 2009. Why has this happened, and what does it mean?

One reason the Obama practices are so close to the late Bush practices is that the late Bush practices were much different than the early ones. In 2001-2003, both fear of terrorism and Bush unilateralism were at their height. But in the last six years, the terror threat has appeared to fade (at least to the public), and Congress and the courts have engaged on terrorism issues, pushing back on some, approving others, and acquiescing in yet others. Congress altered somewhat and then approved the early Bush approach to surveillance, military commissions, and military detention. Rendition and targeted killings have gone on for over a decade without congressional pushback. Congress and the courts restricted permissible interrogations. Some courts have approved the state secrets doctrine as well as military detention without trial. The Supreme Court declared that a portion of the Geneva Conventions applies to the conflict with al Qaeda and rejected early Bush positions on the scope of habeas corpus. In these and many other ways, U.S. terrorism law looked wholly different at the outset of the Obama administration than in 2001-2003. The law was much clearer in 2009, and there was much greater consensus--across political parties and the branches of government--about permissible policies and their limits. Many Obama policies reflect that consensus.

The Obama policies also reflect the fact that the Bush policies were woven into the fabric of the national security architecture in ways that were hard if not impossible to unravel. The new administration would not face the difficulties of closing GTMO if GTMO had not been used as a detention facility in the first place. It would have an easier time prosecuting some terrorist suspects in civilian courts had information about their crimes not been extracted through coercion (assuming, that is, that it would have nabbed the suspects in the absence of the information gained through coercion). And so on. It is impossible to know how an Obama (or any other) administration would have dealt with the manifold terrorist challenges beginning on 9/11, or how the world might look different today if the Bush administration had made different decisions. But no doubt some of the Obama agreement with Bush policies reflects the fact that Obama inherited challenges that were created by decisions with which he would not have agreed.

A third reason for the closeness of the Bush and Obama policies is that many of the Bush policies reflect longstanding executive branch positions. Every wartime president has asserted the right to detain enemy forces without charge or trial during war. Many of them used military commissions for war criminals. Presidents dating back at least to Carter have maintained that habeas corpus review does not extend to aliens detained outside the United States. The state secrets doctrine is over a century old and has been employed vigorously by presidents since the 1970s. Rendition and targeted killings began under Clinton if not earlier. It is no surprise that President Obama seeks to maintain these presidential powers. It would be a surprise if he did not do so.

A final explanation for the congruence between Obama and Bush policies is that governing is much harder than campaigning. The presidency invariably gives its occupants a sober outlook on problems of national security. The "responsibilities placed on the United States are greater than I imagined them to be, and there are greater limitations upon our ability to bring about a favorable result than I had imagined them to be," said President John F. Kennedy, nearly two years into his presidency. "There is such a difference between those who advise or speak or legislate, and between the man who must select from the various alternatives proposed and say that this shall be the policy of the United States. It is much easier to make the speeches than it is to finally make the judgments."

President Obama has gone from a legislator and presidential candidate to the commander in chief wholly responsible for the nation's safety. He now reads the same threat reports as President Bush and confronts the same challenge of stopping Islamist terrorists who hide among civilians and who want to use ever-smaller and more deadly weapons to disrupt our way of life. He also faces the same paucity of truly useful information about the enemy and the same hard tradeoffs between liberty and security. And he knows that the American people will blame him and no one else if the terrorists strike. "The whole government is so identified in the minds of the people with [the president's] personality," said William Howard Taft, "that they make him responsible for all the sins of omission and of commission of society at large." The intense personal responsibility of the president for national security, combined with the continuing reality of a frightening and difficult-to-detect threat, has unsurprisingly led President Obama, like President Bush, to want to use the full arsenal of presidential tools.

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.

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric. Department of Justice opinions and presidential signing statements, for example, made broad claims for an untouchable Commander-in-Chief power that were unnecessary to the tasks at hand. Just as damaging was the administration's frequently expressed desire to expand executive power in order, as Vice President Cheney put it, "to leave the presidency stronger than we found it."

Such rhetoric was unprecedented in American wartime history, and was especially unfortunate in a war involving a novel enemy and widespread public doubts about the appropriateness of using war powers against such an enemy. The public worries about excessive presidential power during war, and prudent presidents try to assuage and meet these concerns. Abraham Lincoln and Franklin D. Roosevelt were the most powerful war presidents in our history. They never talked publicly about a desire to expand their power, for doing so would have been self-defeating and politically stupid. When they exercised extraordinary authorities, as they often did, they put forth a grudging public face, expressions of respect for constitutional values, and explanations about why the steps were an unfortunate but necessary means to an important national security end.

The Bush administration's opposite rhetorical strategy led many people to suspect that the president was acting to increase his own power rather than to keep the country safe. The strategy's main effect was to distort the legitimacy of many Bush wartime practices that had been uncontroversial in previous wars. The early Bush administration failed to grasp what Lincoln and Roosevelt understood well: the vital ongoing need to convince the citizenry that the president is using his extraordinary war powers for the public good and not for personal or institutional aggrandizement. By the time the Bush administration began to act on this principle in its second term, it was too late; its credibility on these issues--severely damaged not only by unilateralism and expansive rhetoric, but also by mistaken intelligence in the war with Iraq--was unrecoverable.

President Obama, by contrast, entered office with great stores of credibility in speaking about the dangers of terrorism and the difficulties of meeting the terror threat. The new president was a critic of Bush administration terrorism policies, a champion of civil liberties, and an opponent of the invasion of Iraq. His decision (after absorbing the classified intelligence and considering the various options) to continue core Bush terrorism policies is like Nixon going to China. Because the Obama policies play against type and (in some quarters of his party) against interest, they appear more likely to be a necessary response to a real terror threat and thus less worrisome from the perspective of presidential aggrandizement than when the Bush administration embraced essentially the same policies.

This credibility cannot last forever, and probably won't last long without careful nurturing. The Obama administration shows every sign of trying to do just that. It seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

Finally, the Obama administration is following the Lincoln-Roosevelt approach to rhetoric and public symbols. The president talks frequently about the importance of adhering to constitutional values, he worries publicly about terrorism policies going too far, and he suggests that he is looking for ways to keep them in check. He has said not a word about presidential prerogative in national security or the importance of expanding his power. Closing GTMO--especially in the face of loud opposition--is an important symbol of the new president's commitment to the rule of law even if the detainees ultimately receive no greater rights. The small restrictions his administration has placed on itself as compared to the late Bush practices are public indications of restraint, especially when contrasted with the early Bush insistence on maximum presidential flexibility at all costs. They are yet more significant because the Obama administration is embracing them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny.

A good example of these strategies in action is the Obama administration's "new" rationale for detaining enemy forces indefinitely without charge or trial. The administration took the same basic position as its predecessor but placed it in prettier wrapping. It eliminated the dreaded label "enemy combatant." It narrowed the scope of those who can be detained from persons who "support" al Qaeda and its affiliates to persons who "substantially support" them--a change without large practical consequences, but a change nonetheless. And it grounded its authority to detain in Congress's authorization for the war and the international laws of war, showing that the president's detention powers were approved by bodies outside the presidency. This was the Bush position as well, but with an important difference: The Bush administration argued that it could detain enemy soldiers on its own constitutional authority, and without congressional support. The Obama administration dropped this argument (but did not reject it), and won favorable press coverage for its "departure" from the Bush position even though the change affected nothing in the president's present power to detain.

One can view these and many similar Obama administration efforts as attempts to save face while departing from campaign promises and supporter expectations. And no doubt there is an element of this in the Obama strategy. But the Obama strategy can also be seen, more charitably, as a prudent attempt to legitimate and thus strengthen the extraordinary powers that the president must exercise in the long war against Islamist terrorists. The president simply cannot exercise these powers over an indefinite period unless Congress and the courts support him. And they will not support him unless they think he is exercising his powers responsibly, under law, with real constraints, to address a real threat. The Obama strategy can thus be seen as an attempt to make the core Bush approach to terrorism politically and legally more palatable, and thus sustainable.

If this analysis is right, then the former vice president is wrong to say that the new president is dismantling the Bush approach to terrorism. President Obama has not changed much of substance from the late Bush practices, and the changes he has made, including changes in presentation, are designed to fortify the bulk of the Bush program for the long-run. Viewed this way, President Obama is in the process of strengthening the presidency to fight terrorism.

Jack Goldsmith, a professor at Harvard Law School and a member of the Hoover Institution Task Force on National Security and Law, was an Assistant Attorney General in the Bush administration and is the author of The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton 2007).