In March 2010, the ACLU ran an advertisement in which President Barack Obama’s face morphs into that of President George W. Bush. A few months later, in a report on the first eighteen months of Obama’s term, the civil liberties group charged that Obama was in danger of establishing a “new normal” by entrenching the “worst Bush-era policies.” According to Daniel Klaidman’s new account of President Obama’s struggles to square national security and the rule of law, Kill or Capture, “no criticism seemed to sting more than when liberals accused him of selling civil liberties down the river.”
But it’s not just liberals who make this charge. Jack Goldsmith, a conservative Harvard law professor who served as a lawyer in the Defense Department and the Justice Department under President Bush, opens his new book, Power and Constraint, by contending that “in perhaps the most remarkable surprise of his presidency, Obama continued almost all of his predecessor’s counterterrorism policies.” Washington Post columnist Charles Krauthammer goes further, accusing Obama of blatant hypocrisy:
You go around the world preening about how America has turned a new moral page by electing a president profoundly offended by George W. Bush’s belligerence and prisoner maltreatment, and now you’re ostentatiously telling the world that you personally play judge, jury, and executioner to unseen combatants of your choosing, and whatever innocents happen to be in their company.
More pithily, Stephen Colbert recently remarked that “rather than sending prisoners to Gitmo, [President Obama] is taking the high road by sending them to their maker.”
As Jo Becker and Scott Shane recently noted in a May 2012 New York Times article reviewing Obama’s national security record, “nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record.” One thing is certain: Republican presidential candidate Mitt Romney will not be able to accuse Obama of being soft on security. Obama’s administration not only killed Osama bin Laden, but claims to have killed twenty-two of al-Qaeda’s thirty top leaders. Obama has radically escalated drone strikes, continued military detention without charge and military commissions for trying terrorists, prosecuted more government officials for leaks than all prior presidents combined, maintained the discretion to render suspects to third countries, and opposed efforts to hold US officials accountable for authorizing torture of terror suspects.
How should we assess President Obama’s first term as a national security president from the standpoint of civil liberties and the rule of law? Klaidman and Goldsmith offer very different judgments. Klaidman, a Newsweek reporter, sees a president wracked by indecision, torn between his commitment to legal ideals and his political pragmatism. Goldsmith maintains that President Obama has largely continued his predecessor’s policies, because by the time he took office the system of checks and balances had worked to limit, revise, and legitimate Bush’s policies. Both books offer important insights into the workings of the modern national security state, but in my view, neither gets Obama quite right.
President Obama has in fact decisively broken from the Bush approach. While he has continued to employ tactics traditionally associated with war—military detention, killing, and war crimes trials—he has sought to reconcile those practices with the rule of law that Bush rejected. Where he has fallen short is not in fighting al-Qaeda, but in fighting his critics at home, and in failing to embrace the obligations of transparency and accountability so central to democratic legitimacy. And nowhere is the latter failing more evident than with respect to his aggressive but secretive exercise of the power to target and kill our “enemies.”
In his inaugural address, President Obama firmly rejected “as false the choice between our safety and our ideals.” But as Klaidman illustrates, in a fascinating and detailed account of the administration’s internal battles, there are actually many hard and real choices involved in keeping the country secure from an organization that hides among civilians, targets noncombatants, and has adherents willing to commit suicide to spread mayhem and terror. Based on interviews with more than two hundred sources, most of them current or former Obama administration officials, Klaidman portrays Obama as deeply ambivalent as he presides over repeated debates between those Rahm Emanuel called “Tammany Hall”—the realists represented by himself and David Axelrod in the White House—and those Emanuel disparaged as “Aspen Institute” idealists, such as White House Counsel Greg Craig, Attorney General Eric Holder, and State Department Legal Adviser Harold Koh.
Obama comes across as genuinely prizing American ideals of liberty, due process, and the rule of law, but also wanting to use all available tools within the law—military as well as criminal—to maintain security. Klaidman criticizes Obama for his “Hamlet-like indecision,” saying that it is “one thing to have a ‘team of rivals,’ another to let them fight without any resolution or action.” But his inside accounts of the debates over what to do about Guantánamo detainees, an al-Qaeda suspect captured on the high seas, an American citizen accused of plotting terrorist attacks from Yemen, and the trial of Khalid Sheikh Mohammed actually tell a different story. These were and are all truly difficult dilemmas, fully warranting extended debate, and resisting easy answers. Obama’s willingness to struggle with the ethical and legal issues they present is a sign of strength, not weakness.
Moreover, Klaidman’s account actually demonstrates that Obama made plenty of decisions about which his advisers disagreed. He overruled the CIA and Emanuel on disclosing the previously secret Office of Legal Counsel memos that had justified torture. He vetoed a military proposal backed by Mike Mullen, the chair of the Joint Chiefs of Staff, for a major strike at a Shabab training camp in Somalia, instead ordering a more surgical and targeted approach. He initially forbade the use in Yemen of so-called “signature strikes,” in which targets are not personally identified but chosen because they fit a profile, although more recently he has reportedly authorized such strikes. He insists on personally signing off on all strikes in Yemen and Somalia, and all strikes in Pakistan where there is any risk that civilians might be harmed. And he backed Holder’s decision to try Khalid Sheikh Mohammed in civilian criminal court, even though Emanuel condemned the move as “a self-inflicted wound.”
Most importantly, where his predecessor sought to thrust the law aside, Obama consistently seeks to reconcile US counterterrorism policy with the rule of law. He does not always succeed in this, but it’s not through indecision. It is, rather, through his unwillingness to take the fight for what he believes in to the American public.
Many of Obama’s problems arose not from pressures created by real or perceived security needs, but from domestic demagoguery by his critics. Consider, for example, the vexed subject of Guantánamo Bay. On his second day in office, Obama vowed to close it within a year, reasoning, as have many before him from both parties, that the human rights abuses inextricably associated with the prison continue to taint our counterterrorism policy while buttressing al-Qaeda’s recruitment. Yet three and a half years later, the prison remains open, holding over 160 men, with no end in sight, either to their detentions or to the facility’s existence.
The primary blame, however, is Congress’s. Playing shortsighted domestic politics, Congress has refused to allow any Guantánamo detainees to be brought to the United States—even those, like a group of Chinese Uighurs, who have been determined to pose no threat, and to have been wrongly detained in the first place. When Representative Frank Wolf of Virginia learned that two Uighurs were to be relocated in his district, he took to the floor of Congress, objecting to the idea of letting terrorists into his backyard—even though the men were not terrorists at all. There seemed little the administration could do; as Klaidman shows, even Democratic Senate leader Harry Reid played the fear card, saying, “we don’t want them around.”
Similarly, the obstacles to trying Khalid Sheikh Mohammed in civilian criminal court were political, not legal. President Obama’s announced policy is that where possible, terrorists should be tried in civilian criminal courts. To that end, Justice Department prosecutors fully investigated KSM’s case, and prepared a four-hundred-page briefing book setting out the case they would make against him. In doing so, Klaidman reports, they discovered a trove of secret recordings of prison yard conversations between KSM and his fellow inmates, in which they freely admitted their roles in the September 11 attacks—evidence the military prosecutors inexplicably had decided not to use. Those admissions, untainted by the torture inflicted on KSM, were so explicit that it made conviction all but certain.
Policy considerations also strongly favored a civilian criminal trial. The federal courts have successfully prosecuted more than two hundred defendants on “terrorism” charges since September 11. While many of those prosecutions involve dubious practices of entrapment and trumped-up charges of “material support,” federal courts have undoubtedly shown that they can handle terrorism cases. Their judges are seasoned, their rules are clear, and their process has the legitimacy earned through years of application to millions of Americans.
The military commissions, by contrast, are subject to continuing change, with few or no precedents to rely upon. Their military lawyers and judges have no experience with serious terrorist trials. And the proceedings lack legitimacy, both because they remain tainted by the lawless form they initially took under President Bush, and because by design they apply only to noncitizens, and not to Americans. Their track record to date has been dominated by false starts, Keystone Cops procedures, and surprisingly light sentences.
So any rational actor would choose to try KSM in civilian criminal court. That’s precisely what Attorney General Holder did. He’s been widely criticized ever since for failing to prepare the way for the announcement by informing New York officials sufficiently ahead of time, and for failing to defend the announcement forcefully. But Klaidman reveals that the decision to delay informing New York officials was driven by a concern about leaks, and that all relevant officials, including Mayor Michael Bloomberg, supported the decision when it was announced. It was only later, when the New York officials were inundated by the complaints of their constituents, that they reversed course.
Holder, it turns out, wanted to mount a major public relations defense, including appearances on the Sunday talk shows and an Op-Ed for The New York Times. But Emanuel, uncomfortable with the decision, ordered Holder not to do so, and limited him to a single appearance on NewsHour. At the same time, Emanuel called Republican Senator Lindsey Graham, who he knew to be an avid opponent of trying KSM in civilian court—not in order to stave off Graham’s opposition but to stoke it. Graham—a reserve officer in the army’s legal department—and others objected vociferously, and ultimately convinced Congress to forbid the expenditure of any money to try KSM in the United States.