Dick Cheney has it backward. The problem with President Obama's counter-terrorism policy isn't its (rather limited) divergence from the Bush-Cheney approach. The problem is Obama's emulation of one of the biggest Bush-Cheney mistakes.
That is relying too much on unilateral presidential power and judicial improvisation rather than seeking new legislation -- as two notable judicial opinions have recently urged -- to legitimize and regulate the detention and interrogation of terrorism suspects outside the ordinary criminal process.
The case of the Nigerian who authorities say tried to blow up an airliner over Detroit on Christmas Day has helped expose two reasons why this presidential unilateralism is intolerable.
First, treating terrorism suspects captured in America as ordinary criminal defendants from the moment of arrest unnecessarily rules out aggressive, incommunicado interrogation that might disrupt other plots and thus save lives. New legislation could legitimize questioning such people without lawyers for a limited period (maybe 10 days, or longer in exceptional cases) before launching the criminal process.
Second, Obama's January 5 suspension of the transfer of Guantanamo Bay prisoners to Yemen -- where the Christmas bombing plot was hatched -- is the latest sign that he will perpetuate for years the George W. Bush-created regime of long-term detention without trial. Obama acted even though he has recognized this approach to be inconsistent with "our values and our Constitution" unless legitimized by careful congressional, as well as judicial, oversight.
The attacks by Cheney and other conservative critics on the administration's handling of the case of would-be bomber Umar Farouk Abdulmutallab focus on the decision to treat him as an ordinary criminal defendant, with the usual Miranda rights, lawyers counseling silence, and all the rest.
"If we find Abdulmutallab in a Qaeda training camp in Yemen," writes conservative columnist Charles Krauthammer, "we snuff him out with a Predator -- no judge, no jury, no qualms. But if we catch him in the United States in the very act of mass murder, he instantly acquires protection not just from execution by drone but even from interrogation." This, Krauthammer points out, mocks Obama's declaration that "we will not rest until we find all who were involved."
Liberal columnist Michael Kinsley offers this response: "This anomaly didn't arise with the Obama administration.... A liberal democracy aspires to punish only the guilty. But war is inherently unfair -- it distributes suffering arbitrarily among enemy combatants, civilians, and one's own soldiers. A line has to be drawn somewhere to determine which of these utterly different standards of government behavior is applied where -- and the nation's border is as good a line as any."
Strong points on both sides. But Krauthammer overlooks the perils of unilateral presidential detention without due process of people arrested in America. Might suspected domestic terrorists be next? Suspected drug dealers? And Kinsley ignores the lives that could be saved by aggressive, incommunicado interrogation of terrorists captured here as well as abroad.
Abdulmutallab was chatty at first. But we may never know what he might have revealed had the government not supplied a lawyer to shut him up. The plea-bargaining process on which the administration fatuously pins its hopes for getting more information takes much too long to reap timely intelligence.
Both columnists overlook the fact that the government should not have to choose between such stark options. It would not face that dilemma if Obama and Congress were to adopt the kind of legislation sketched below.
To be sure, the convictions of Jose Padilla and Ali Saleh Kahlah al-Marri -- who spent years in military custody without access to lawyers after being arrested in Chicago and Peoria, Ill., respectively -- show that a new law may not be strictly necessary to allow for a period of incommunicado interrogation followed by prosecution, so long as evidence derived from the interrogation is excluded from court.
But even Bush treated as ordinary criminal defendants, with full Miranda rights, the vast majority of those accused of terrorism who were captured in America. "In our constitutional system, prolonged detention should not be the decision of any one man," as Obama rightly said in a major May 21 speech.
The president was also right when he continued: "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."
Obama quietly (and unwisely) abandoned this plan in September, apparently because of the difficulty of getting sensible rules through Congress and protests from human-rights groups that didn't want to see a system of detention without charge enshrined in legislation.
The aftermath of the Christmas bombing attempt helps show why he should reverse course again and seek new legislation.
The plot's origination in Yemen -- together with other signs of Al Qaeda's strength there -- drove the last nail into the coffin of Obama's hope of shipping out most of the 91 Yemenis among the 198 men who remain at Guantanamo. Most of these 198 are deemed by the government to be both dangerous and non-prosecutable. Obama has vowed not to free those who are dangerous -- as at least two Yemenis and others released by Bush have proved to be.
So Obama has now made his own the Bush policy of long-term detention without trial of many scores of Guantanamo detainees.
This does not vindicate Republican demands that the president abandon his pledge to close Guantanamo. That prison camp -- which has in reality been a model facility for several years -- nonetheless remains a toxic symbol of law-free detention and brutal interrogation. For Obama to abandon his promise would be a devastating blow to American credibility and hopes of rallying allies to help us fight terrorism.
But emptying Guantanamo will not change the fact that Obama has now irrevocably adopted for the long term a regime of detention without criminal charges or trials. The Illinois prison to which Obama plans to send the detainees is properly called "Gitmo North" because they will enjoy no more due process rights there than they do now.
Not, that is, unless Obama and Congress devise an appropriate legal regime as promised in Obama's May 21 speech.
Congress could, for example, authorize preventive detention and incommunicado interrogation of suspects such as Abdulmutallab for up to 10 days if, and only if, the attorney general certifies that there are reasonable grounds to believe that the suspect is a member or material supporter of an international terrorist group or conspiracy and that the suspect's release would endanger public safety.
Such a law could also provide that after the 10 days, or longer in special cases if the government makes a showing of necessity, authorities must choose whether to relegate the suspect to the ordinary criminal process, to a military commission, or to longer-term detention without criminal charges as an enemy prisoner.
Terrorism suspects who are subjected to long-term detention could have a right to timely, trial-like due process hearings at which to dispute claims that they are dangerous, both 10 days after their arrest (except in special cases) and at regular intervals thereafter. The government's burden of proving dangerousness should become heavier as the time spent behind bars increases.
The federal courts in the District of Columbia have been muddling through by creating -- as well as applying -- legal rules to govern such detentions since the Supreme Court's 2008 Boumediene decision gave Guantanamo detainees the right to petition for release.
But two of the judges most steeped in this process have recently complained that the slow-moving courts are ill-suited to devise on a case-by-case, incremental basis the fundamental national defense policies that ought to be set by the political branches.
The "new and frightening" challenges that we face call for Congress to "intervene pursuant to its policy expertise, democratic legitimacy, and oath to uphold and defend the Constitution," Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit wrote in a January 5 concurrence.
And in a December 14 opinion, U.S. District Judge Thomas Hogan, whose colleagues entrusted him with the lead role in consolidating and managing common issues in the many Guantanamo cases, noted that different judges have inevitably adopted "different rules and procedures [and] rules of evidence" and "a difference in substantive law." This confusion, he said, "highlights the need for a national legislative solution with the assistance of the [chief] executive so that these matters are handled promptly and uniformly and fairly for all concerned" -- perhaps by a new, expert court.
These judicial pleas also highlight the fact that in dealing with terrorism suspects, the president and Congress have for far too long abdicated to the judiciary their duties -- identified in the Preamble to the Constitution -- to "provide for the common defense" and to "secure the blessings of liberty to ourselves and our posterity."
This article appears in the January 9, 2010, edition of National Journal Magazine.