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Obama and Gitmo -- Two Articles




Obama and Guantanamo-Fighting terrorism is simpler when you're a candidate.

Jack Bauer Exception-Obama's executive order wants it both ways on interrogation.


Obama and Guantanamo-Fighting terrorism is simpler when you're a candidate.


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By The Wall St. Journal
http://online.wsj.com/article/SB123258578172604569.html
Jan. 22, 2009

Campaign promises are so much easier to adhere to when they're strictly hypothetical, as Barack Obama is discovering. The then-President-elect said 10 days ago on ABC that while he still plans to close Guantanamo, "it is more difficult than I think a lot of people realize" and that "many" of the enemy combatants are "very dangerous."

Merely for gesturing at this reality, Mr. Obama suffered the blunt-force trauma of his left-wing allies, and the panicked transition leaked new details on the Administration's intentions last week. On Tuesday the Pentagon halted military commissions at Guantanamo for 120 days, and reports as we went to press yesterday said Mr. Obama would sign an executive order today that the base be closed within a year. This was after he told the Washington Post that closure might take even longer. Isn't responsibility fun?

The first practical question is where to transfer Khalid Sheikh Mohammed and the 245 or so other remaining Gitmo prisoners. Dangerous enemy combatants can't simply be released into the streets. The Obama camp says that after reviewing the classified files, it will try to repatriate as many as safely possible. But 60 already cleared for release remain because they may be persecuted by their home countries. And even Mr. Obama's vaunted diplomacy is unlikely to convince rights-protecting countries to resettle people he believes are too dangerous to release in the U.S. -- and the more willing Mr. Obama is to release prisoners, the more difficult this problem will become.

One suggestion is moving the remaining prisoners to Kansas's Fort Leavenworth, but state politicians are already sounding a red alert. The military base is integrated into the community and, lacking Guantanamo's isolation and defense capacities, would instantly become a potential terror target. Expect similar protests from other states that are involuntarily entered in this sweepstakes.

In any event, this option merely relocates Guantanamo to American soil under another name. The core challenge is not a matter of geography but ensuring a stable legal framework for detaining and punishing fighters engaged in unconventional warfare against the U.S.

In the Military Commissions Act of 2006, the Bush Administration and Congress painstakingly set thresholds for who can be detained and under what rules. Mr. Obama argues that work was flawed and that the trials should not continue in their present form. But he also said in his ABC sitdown that he wants to create "a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, but doing it in a way that doesn't result in releasing people who are intent on blowing us up."

Sounds great. But this "balance" is difficult to strike because many of the Guantanamo prisoners haven't committed crimes per se but are dedicated American enemies and too dangerous to let go. Other cases involve evidence that is insufficient for trial but still sufficient to determine that release is an unacceptable security risk.

The stock anti-antiterror position is that detainees should be charged with crimes, either through military courts-martial or (preferably) the ordinary criminal justice system. Anyone who can't be indicted should be set free. But such trials are unworkable even for the 70 or 80 detainees that prosecutors had planned to try with military commissions, let alone prisoners who are too dangerous to release but for which there isn't sufficient evidence for a tribunal, much less civilian courts. Critics like to point to aggressive interrogations as somehow tainting these cases, but the real problems are far more prosaic. For instance, any evidence probably can't be admitted in civilian courts because terrorists aren't read their Miranda rights when picked up in combat zones.

An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.

But legal experts across the political spectrum including Harvard's Jack Goldsmith, the Brookings Institution's Ben Wittes and Georgetown's Neal Katyal advance this option as a way to restore "credibility" to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.

Then again, such rules would be almost identical to those now used in . . . George Bush's military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama's problem.


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Jack Bauer Exception-Obama's executive order wants it both ways on interrogation.


By The Wall St. Journal
http://online.wsj.com/article/SB123267082704308361.html
Jan. 23, 2009

Most politicians would rather do anything than make a difficult choice, and it seems President Obama hasn't abandoned this Senatorial habit. To wit, yesterday's executive order on interrogation: It imposes broad limits on how aggressively U.S. intelligence officers can question terrorists, but it also keeps open the prospect of legal loopholes that would allow them to press harder in tough cases.

While that kind of double standard may resolve a domestic political problem, it's no way to fight a war. The human-rights lobby and many Democrats are still experiencing hypochondria about the Bush Administration's supposed torture program, and their cheering about this "clean break" means they may be appeased. But the larger risk is that Mr. Obama's restrictions end up disabling an essential tool in the U.S. antiterror arsenal.

Effective immediately, the interrogation of anyone "in the custody or under the effective control of an officer, employee, or other agent of the United States Government" will be conducted within the limits of the Army Field Manual. That includes special-ops and the Central Intelligence Agency, which will now be required to give prisoners gentler treatment than common criminals. The Field Manual's confines don't even allow the average good cop/bad cop routines common in most police precincts.

The Army Field Manual is already the operating guide for military interrogations. The crux of the "torture" debate has been that the Bush Administration permitted more coercive techniques in rare cases -- fewer than 100 detainees, according to CIA Director Michael Hayden. Yesterday Mr. Obama revoked the 2007 Presidential carve-out that protected this CIA flexibility.

The techniques that had been permissible until yesterday remain classified but were widely believed to include such things as stress positions, exposure to cold and sleep deprivation. Senior officials have said they stopped waterboarding in 2003 -- which in any case was only used against three senior al Qaeda operatives and succeeded in breaking these men to divulge information that foiled terror plots.

The unfine print of Mr. Obama's order is that he's allowed room for what might be called a Jack Bauer exception. It creates a committee to study whether the Field Manual techniques are too limiting "when employed by departments or agencies outside the military." The Attorney General, Defense Secretary Robert Gates and Director of National Intelligence-designate Dennis Blair will report back and offer "additional or different guidance for other departments or agencies."

In other words, Mr. Obama's Inaugural line that "we reject as false the choice between our safety and our ideals" was itself misrepresenting the choices his predecessor was forced to make. At least President Bush was candid about the practical realities of preventing mass casualties in the U.S.

The "special task force" may well grant the CIA more legal freedom to squeeze information out of terrorists when it could keep the country safe. An anecdote former Clinton counterterror czar Richard Clarke recounts in his memoir "Against All Enemies" is instructive. In 1993, White House Counsel Lloyd Cutler was horrified by Mr. Clarke's proposal for "extraordinary rendition," where our spooks turn over prisoners to foreign countries like Egypt so they can do the interrogating.

While Mr. Clinton was still chewing his fingernails and seemed to side with Mr. Cutler, Al Gore arrived late to the meeting. "Clinton recapped the arguments on both sides," Mr. Clarke writes. "Gore laughed and said, 'That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass.'"

The wider danger Mr. Obama is inviting by claiming to draw a line while drawing no line at all is the message it sends to Langley. CIA interrogators are already buying legal insurance in the expectation that a Senator like Carl Levin or some prosecutor-on-the-make rings them up for war crimes. The executive order is bound to produce a more risk-averse CIA culture and over time less intelligence-gathering. No one may be willing to be Jack Bauer when Mr. Obama really needs him. This will have consequences for U.S. safety, and for the Obama Administration if there is another 9/11.
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