FEBRUARY 9, 2010
Cheney's Revenge
The Obama Administration is vindicating Bush antiterror policy.
Dick Cheney is not the most popular of politicians, but when he offered a harsh assessment of the Obama Administration's approach to terrorism last May, his criticism stung—so much that the President gave a speech the same day that was widely seen as a direct response. Though neither man would admit it, eight months later political and security realities are forcing Mr. Obama's antiterror policies ever-closer to the former Vice President's.
In fact, the President's changes in antiterror policy have never been as dramatic as he or his critics have advertised. His supporters on the left have repeatedly howled when the Justice Department quietly went to court and offered the same legal arguments the Bush Administration made, among them that the President has the power to detain enemy combatants indefinitely without charge. He has also ramped up drone strikes against al Qaeda and Taliban operatives in Pakistan.
However, the Administration has tried to break from its predecessors on several big antiterror issues, and it is on those that it is suffering the humiliation of having to walk back from its own righteous declarations. This is Dick Cheney's revenge.
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Associated Press Former Vice President Dick Cheney
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Begin with Mr. Obama's executive order, two days after his inauguration, to shut the detention facility at Guantanamo Bay within one year. The President issued this command before undertaking a study to determine how or even whether his goal was feasible. In his May speech, Mr. Obama declared, "The record is clear: Rather than keep us safer, the prison at Guantanamo has weakened American national security."
Mr. Obama's deadline has come and gone, and Guantanamo remains open. In part this is the result of political opposition from Americans—including many Congressional Democrats—who understandably do not want terrorists in their backyards. Another problem is that European allies, while pressing for Guantanamo's closure, have been reluctant to accept more than a handful of detainees who are deemed suitable for release. The upshot is that Congress may never appropriate the money to close Gitmo, and Mr. Obama never mentioned the prison in his State of the Union address.
The Administration similarly has been backing away from its intention, announced in November, to try 9/11 mastermind Khalid Sheikh Mohammed and four other enemy combatants in civilian court a few blocks from Ground Zero. New York Mayor Michael Bloomberg, who at first endorsed the trials, has since reversed himself and urged the Administration to "do the right thing" and move the trials somewhere else, preferably to a military base.
The same day, New York's Senator Chuck Schumer asked officials to find another venue. Within hours, Mr. Obama ordered the Justice Department to do just that, and Mr. Schumer has since said any trial shouldn't be held anywhere in New York state. Meanwhile, bipartisan support is growing in Congress to block money from being spent on any civilian trial for KSM, anywhere.
The Administration seems to have thought no more deeply about the potential legal pitfalls of civilian trials than about the security and logistical problems. Mr. Obama himself responded to criticism by suggesting that what he had in mind was a series of show trials, in which the verdict and punishment were foreordained.
When NBC's Chuck Todd asked him in November to respond to those who took offense at granting KSM the full constitutional protections due a civilian defendant, the President replied: "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him." Mr. Obama later claimed he meant "if," not "when," but he undercut his own pretense of showcasing the fairness of American justice.
There is a real possibility, too, that convictions would be overturned on technicalities. KSM and other prospective defendants were subjected to interrogation techniques that, while justifiable in irregular war, would be forbidden in an ordinary criminal investigation. When Senator Herb Kohl, a Wisconsin Democrat, asked Attorney General Eric Holder what the Administration would do if a conviction were thrown out, Mr. Holder said: "Failure is not an option." A judge may not feel the same way, and the Administration is derelict if it is as unprepared for the contingency as Mr. Holder indicated.
In the event of an acquittal or an overturned conviction, it would be entirely legitimate under the laws of war to continue holding KSM and the others as enemy combatants. But this would defeat the moral rationale of a trial and require the Administration to explain why it was continuing to detain men whose guilt it had failed to establish in court.
A third policy under increasing criticism is the Administration's approach to interrogation. In August, Mr. Holder announced that he had appointed a special prosecutor to investigate—or rather re-investigate—allegations of abuse by CIA interrogators. At the same time, Mr. Obama declared that responsibility for interrogating detainees would shift from the CIA to a new, FBI-led High Value Detainee Interrogation Group, which would employ only tactics that are "noncoercive" or approved by the Army Field manual.
Then came the attempted Christmas bombing and the revelation that the new interrogation group is not fully operational and won't be for months. Not that it would have had a chance to question Umar Farouk Abdulmutallab. On Mr. Holder's order, investigators immediately classified him as a criminal defendant. After interrogating him for just 50 minutes, they advised him of his right to remain silent, which he promptly exercised.
Fifty minutes was plenty of time, White House Press Secretary Robert Gibbs assured "Fox News Sunday" viewers last month: "Abdulmutallab was interrogated, and valuable intelligence was gotten as a result of that interrogation." Mr. Holder told Senate Minority Leader Mitch McConnell in a letter last week that Abdulmutallab "more recently . . . has provided additional intelligence to the FBI"—which is encouraging if true, but makes Mr. Gibbs's earlier assurance look empty.
Meanwhile, one of Scott Brown's most potent campaign themes in Massachusetts was his line that "Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree." Mr. Brown even endorsed waterboarding.
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As long as George W. Bush and Dick Cheney were responsible for keeping Americans safe, Democrats could pander to the U.S. and European left's anti-antiterror views at little political cost. But now that they are responsible, American voters are able to see what the left really has in mind, and they are saying loud and clear that they prefer the Cheney method.
Mr. Holder has nonetheless begun a campaign to defend his decisions on Abdulmutallab and KSM, telling the New Yorker last week that "I don't apologize for what I've done" and that trying KSM in a civilian court will be "the defining event of my time as Attorney General."
Given that he still can't find a venue and that even Democrats are having second thoughts about the spectacle, Mr. Holder may well be right that the trial will define his tenure. Before this debate is over, he may have to explain why he's decided that the best place to try KSM really is a military tribunal—in Guantanamo.
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