I appreciate the opportunity to participate in AEI’s anniversary symposium. I have been involved in post-9/11 work since November 2001 and have been asked to reflect on why I believe my work is important. I was counsel of record in two of the detention cases, Rasul v. Bush (2004) and Munaf v. Geren (2008), and currently represent Abu Zubaydah. But I do not know whether my work is important and leave that assessment to others. All I can relate is why I do it.
My work has always been animated by two elementary convictions. First, the truth is worth pursuing. Second, the statements of people with a stake in the outcome should be tested. These convictions led me initially to Rasul, about habeas for prisoners at Guantanamo, and then to Munaf, involving habeas for American citizens held in Iraq. It seemed to me we should not simply accept the assertion—as though it were gospel—that a man is the demon his jailer represents him to be. If the truth is worth pursuing, and if the statements of people with a stake in the outcome should be tested, then Rasul and Munaf were easy cases. This leads me to Zubaydah. Few have been so demonized, none so misjudged. Even the U.S. government no longer believes what it once said about Zubaydah.
My work has led me to a third conviction. People of good will can disagree, but disagreement is neither proof of venality nor cause for incivility. I do not understand the coarseness that passes for dialogue nowadays. I do not understand why serious issues cannot be given serious thought without resort to vitriol. I do not understand why the debate has become so cheap. It is no answer that much is at stake; that is precisely why it should be otherwise.
Today, nearly ten years since President Bush first sent detainees to Guantanamo Bay and 19 months after President Obama promised the infamous prison camp would be closed, it remains open. One hundred seventy-one men remain imprisoned there, of which 89 have been cleared for release, but with no release in sight.
My organization, New York City’s Center for Constitutional Rights (CCR), was the first—and for a long time, the only—human rights organization willing to represent the detainees. We leapt into action after President Bush issued Military Order #1 in November 2001. It authorized the president to direct the capture of any non-citizen anywhere in the world allegedly involved in international terrorism, and to detain that person indefinitely without access to the remedy of habeas corpus. And when Bush took such an action, CCR stepped in to defend the first detainees.
Yes, we debated whether to become involved. Defense Secretary Donald Rumsfeld swore these detainees were the “worst of the worst.” But we could not stand back and watch the law stripped of a key protection against executive deprivations of liberty, reaching back to 1215 and the Magna Carta.
In 2008, after three appearances before the U.S. Supreme Court, habeas corpus was finally restored to the men at Guantanamo. But our presence and our litigation had its benefits even before Boumediene v. Bush. It’s much harder for any authority to abuse prisoners who have lawyer visits, and ours first gained access to Guantanamo as far back as 2004. At one point we were coordinating the efforts of more than 500 pro bono attorneys from firms nationwide. I believe it’s fair to say that our collective presence, and the threat of further litigation, acted as a deterrent to greater brutality and a larger prisoner population. Six hundred people have been freed from Guantanamo.
It’s discouraging that Guantanamo remains open. And that the D.C. Court of Appeals hollowed out the habeas remedy to the point where the Inter-American Commission on Human Rights called it “illusory.” Still, I believe that the decision of so many members of our community to defend the men there, and the key democratic principle of habeas, represents one of the American bar’s finest hours.
A sharp blow for ObamaCare today as the U.S. Appeals Court for the 11th Circuit in Atlanta ruled against the provision that mandates Americans to buy health insurance or face a penalty. Twenty-six states had challenged the constitutionality of the mandate, which is expected to go all the way to the Supreme Court. “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives,” the majority said in its opinion. The two judges in the majority on the three-judge panel were appointed by Bill Clinton and George H.W. Bush.
Democrats fired back at the ruling. The White House predicted that the 11th Circuit judgment will not stand. House Minority Leader Nancy Pelosi (D-Calif.) tweeted, “Dems oppose efforts to put insurance companies back in charge & I’m confident Affordable Care Act will ultimately be upheld.” The law is supposed to go into effect in 2014, and the legal battle at the Supreme Court could come right smack in the middle of President Obama’s re-election campaign next summer.
- “Taking the Individual Mandate Off Life Support,”The Weekly Standard: “Whether it is repealed by legislation or by the courts, the mandate needs to be replaced by something else that works better to address serious cost and coverage problems in health insurance.”
- “One Year In, Americans Want a Divorce from Obamacare,”Real Clear Markets: “Facing serious constitutional challenges and persistent political opposition to an individual mandate, the Obama administration has tried to defend it by concocting a mix of half-baked economic arguments and exaggerated factoids.”
- “‘Hoist with His Own Petard’ — The Individual Mandate Blows Up ObamaCare,”The Enterprise Blog: “An additional irony is that our current president and many of his Democratic Party allies in Congress and elsewhere have relied for many years on using the courts aggressively, as well as ambitiously extending regulatory interpretations beyond the original text of statutes, to achieve what they could not win through more transparent and accountable, but less malleable, political processes.”
AEI will be hosting a half-day conference on Sept. 15 to examine the various appellate decisions thus far. Confirmed speakers include Greg Katsas, successful counsel for the plaintiffs in the 11th circuit case decided today, Eric Klaeys of George Mason Law School, and Jim Blumstein of Vanderbilt Law. Stay tuned for more details.
The death penalty is not exactly a signature AEI issue. I suspect views on it around here (as at National Review, my other home) vary widely. My own position is straightforward, certain people deserve to die for their crimes. We can debate the merits of all that another day. Instead I thought it would be more fun to debate the merits—or lack thereof—of E.J. Dionne’s column on the execution of Humberto Leal, a Mexican national who lived in the United States from the age of two, and raped, murdered, and mutilated a teenage girl. Here’s how Dionne begins:
WASHINGTON—The unseemly love affair of some American politicians with the death penalty is bad for justice and bad for our country’s standing in the world. It inflicts a wholly unnecessary moral stain on a nation that rightly preaches the rule of law to everyone else.
Even more remarkable is the indifference that five justices of the Supreme Court have shown to such considerations.
And then there is Gov. Rick Perry of Texas, who insisted upon pushing ahead with the execution of Humberto Leal, a Mexican national convicted of the rape and killing of a teenager. Even former President George W. Bush—who presided over 152 executions as Perry’s predecessor—had qualms about the case. Bush hasn’t gone soft. He’s legitimately worried about the costs of the United States thumbing its nose at the government of Mexico and the world.
President Obama, the International Court of Justice and the Mexican government all wanted a stay of execution. But Perry’s press secretary was unapologetic. “Texas,” said Katherine Cesinger, “is not bound by a foreign court’s ruling.”
Imagine if an American life was at stake and a press secretary said that Iran—or Russia or Saudi Arabia or China—did not feel “bound by a foreign court’s ruling.”
Let’s be clear: This case involved a brutal crime, and Leal himself seemed to confess his guilt just before he died. “I take full blame for everything,” he said. “I am sorry for what I did.”
Many points could be made, but I’ll settle for two.
First, his opening sentence makes it sound like the death penalty itself—and not this case—undermines our ability to preach the rule of law. At minimum that is unproven.
But it was this sentence that really bugged me. “Imagine if an American life was at stake and a press secretary said that Iran—or Russia or Saudi Arabia or China—did not feel ‘bound by a foreign court’s ruling.’”
Dionne is stealing a number of bases here. If an American raped and murdered a teenage girl in one of those countries, I don’t know that many people would put up that much of a fuss if the perpetrator were executed. After all, Leal, as Dionne grudgingly concedes, admitted to his guilt. What would enrage the American people is if one of those countries—or any country, including the United States—executed an American for a crime that he didn’t commit or that didn’t rise to the level of capital punishment. Dionne’s analogy blurs that distinction in an attempt to play upon sentiments not applicable or at issue.
This is a common technique among opponents of the death penalty. They compare the United States to countries that use the death penalty for abominable reasons and say, in effect, “Do we really want to be like them?”
The answer, of course, is that we don’t want to be like them and, more importantly, we are not like them. We don’t murder people for whistle-blowing on corruption in the government and we don’t murder them for converting to Christianity. We lawfully execute people for crimes like Leal’s. The man raped a teenager, mutilated her body with a stick, and crushed her head with a rock. That is not a “crime of conscience,” it is a crime that shocks the conscience. Blurring the distinction between the two is slanderous.
Last week’s decision by the U.S. Court of Appeals for the Sixth Circuit regarding the constitutionality of the new healthcare law was a disappointment. The decision in many ways passes the buck to the Supreme Court, declining to strike down the law’s requirement that individuals purchase health insurance or face a financial penalty based on the “presumption” that legislation is constitutional. The reliance on this presumption, however, is particularly inappropriate in the context of the new healthcare law. While the court noted that the presumption is based on the “deference due to deliberate judgment by constitutional majorities of the two Houses of Congress,” media accounts at the time make clear that few, if any, legislators actually reviewed the bill, much less engaged in “deliberate judgment” regarding its contents. Moreover, application of a presumption of constitutionality is questionable where, as here, “Congress has never directly addressed” the precise question at issue—i.e., “whether Congress may use its Commerce Clause power to regulate inactivity,” in this case the decision by individuals across the country to refrain from purchasing health insurance. On the bright side, however, the majority’s opinion is significant in that it recognizes that the new healthcare law is not merely seeking to regulate the market in health insurance, but also healthcare delivery. The court’s decision thus implicitly acknowledges that in seeking to require individuals to obtain health insurance, the legislation directly impacts an area—personal healthcare decisionmaking—that the Supreme Court has previously held is subject to special protection.
The Senate wants to do less, and in this case, that is a good thing. It wants to spend less of its time arguing about the confirmation of hundreds of lower-level political appointees.
Opponents of this proposal, like David Addington of the Heritage Foundation, complain that the Senate will give away power to the president. But in reality, the Senate will retain its constitutional powers of advise and consent, and the change would benefit the Senate, the executive branch, and the many presidential nominees who sit in a needlessly bureaucratic process of appointment and confirmation.
In our system, the president appoints thousands of people to political positions in government, and hundreds of them require Senate confirmation. In this respect, America is very different from most of the world. In most parliamentary systems, government is staffed almost exclusively by career bureaucrats, with only a political minister at the top of each department. America has a mix, a skilled group of civil servants, but political appointees at the top three or four levels of each department. The president, with the consent of the Senate, appoints more than 600 positions in the cabinet departments. In addition, there are hundreds of ambassadors and U.S. attorneys who serve outside D.C., but who also require Senate confirmation. Add to that a long list of unpaid appointees to part-time advisory boards, and you realize that the Senate spends too much of its time debating and confirming many low-level officials.
There are also many political appointees who do not require Senate confirmation: hundreds of staffers in the White House, chiefs-of-staff to political appointees, and many lower-level schedule C staffers who also come from a political background.
While this system of numerous political appointees is very different than much of the rest of the world, it has several great strengths. First, a new president can bring his or her people into government. Strong supporters, campaign workers, and other fans of the president can not only advocate for the president’s election, but can serve in public office to help further the president’s agenda. Second, a president can draw on expertise outside of government, from people with careers in academia, business, labor, Congress, and the nonprofit sector. Third, the system allows our Senate to have a say on whether higher-level presidential appointees get into office.
But despite its strengths, the system of the president appointing and the Senate confirming appointees is not working very well today. The system is clogged and bureaucratic and discourages many good people from serving in government. Fortunately, there is a modest effort moving forward in the Senate to improve this process.
The Senate is considering removing lower-level appointees from the Senate confirmation process altogether, providing for an expedited vote for appointees to part-time, unpaid commissions, and creating a commission to rationalize the mess of the financial disclosure and background check process.
The effect can only be positive. Senators will still be able to vote for, vote against, or hold up political appointees at the highest levels of every department of government. But it will spend less of its time in fruitless argument over the lowest level nominees. It will have no less leverage over the executive, but more time to legislate. It is not a gift to the executive branch, but a sensible measure to free up senate and executive branch resources and make modest improvements for nominees going through the presidential appointment process. Win, win.
David Brooks, writing for the New York Times, contrasts the political atmosphere in the United States with that of the United Kingdom, arguing that despite our shared heritage the Brits have turned out to be plain better at governing than we are. While our politicians debate through tweets, sound bites and, where necessary, from separate studios across cable news channels, in the more intimate atmosphere of Great Britain politicians debate face to face, whether in the House of Commons or on television, a structure that breeds a more informed, and also a more responsible, class of elected official.
I lived in the United Kingdom from 1988 through 1995 and was often struck by the same point: Britain’s elected officials simply seemed to know more than ours and to be better able to express what they know. Unlike congressional hearings, where members question witnesses by reading staff-written questions off of a 3-by-5 card, parliamentary debate demands the ability to think on your feet and both the courage and the responsibility to argue directly to your opponent’s face. The quality of discourse is simply much higher.
Brooks hits on a second point that’s also struck me in recent years: that our national failure to address pressing issues, such as entitlement reform, is as much a failure of political institutions as of political culture. In a recent meeting with a member of Parliament, I was asked why Americans find it so difficult to pass important legislation while the U.K.’s Conservative/Liberal Democrat coalition has passed far-reaching reform to address fiscal shortfalls—including, most recently, a pledge to erase the structural budget deficit in five years. While not easy, the British majority was able to explain the legislation to the public and get it passed. Here in the United States, it’s unlikely we’ll even be able to pass a budget governing day-to-day spending, much less fix our massive long-term fiscal gap.
The answer I gave was that political institutions play a large role in our failures. Our system of divided power, in which legislation must attain majority approval in the House, super-majority approval in the Senate, then be signed by the president, and then, in the case of healthcare reform at least, survive challenge in the courts, allows veto power by too many parties at too many steps of the way. The parliamentary system, by contrast, allows the party in power much greater ability to shape legislation, such that large changes are possible over a short period. At the same time, however, the majority party bears sole responsibility for the outcomes and, if defeated, the new majority can reverse prior plans.
Importantly, though, these reversals are less common than you would guess. While the minority Labour Party opposed most of the free-market reforms instituted under the Thatcher and Major governments, when Labour became the majority under Tony Blair it left most of those reforms in place. This structure allows needed reforms to be made and kept in place, even if one party’s official stance is opposed. Call it hypocrisy, but it works. In the United States, such an approach might, for instance, allow Republicans to increase the Social Security retirement age and for the Democrats to leave the increase in place once they regained power.
The fact that we can’t operate in this way means that we increasingly outsource policy making to unelected commissions, such as President Obama’s fiscal responsibility panel. However, even in this case the president was unable to support their recommendations. Similarly, in the 1990s we utilized the so-called BRAC commission to close redundant military bases, a commission necessitated only by Congress’s inability to do so itself. As I wrote here, our inability to manage the programs that make up the lion’s share of the federal budget means, simply put, that “the government can’t do what the government does.” That is, these aren’t ancillary functions of government that take up trivial shares of the federal budget; rather, as the federal government increasingly comes to resemble an insurance plan with an army, we increasingly acknowledge that our political institutions are able to effectively manage neither the insurance plan nor the army.
It sounds un-American to say it—ok, it probably is un-American to say it—but the system established by the Founding Fathers to organize a federal government that was defined more by what it couldn’t do than what it could isn’t well-suited for the federal government we have today, where almost nothing is taken to be off-limits. The best solution, of course, is to put many federal activities back off limits, to push them to the states, local governments, or individuals where the dysfunction is hopefully less severe or, in any event, less costly. But unless this happens in the near future, I’m pessimistic about our ability to manage our challenges, in particular our budgetary challenges, without some damaging trigger event pushing us to action. Unlike our cousins across the pond, neither our personnel nor our political structures seem up to the job.
Tom Donnelly eloquently explains why the appointment of General David Petraeus as director of the CIA is bad news for the Department of Defense. Here is why his appointment may be bad news for the CIA as well.
Petraeus is a hero to many for his bold leadership of the military surges in Iraq and Afghanistan—and I count myself among his most ardent admirers in this regard. He might well have been an outstanding chairman of the Joint Chiefs of Staff. But his outspoken public criticism of the men and women of the CIA, whose interrogation of high-value terrorist leaders helped stop a second wave of attacks on the United States, make him an unfortunate choice for the CIA job.
In an interview with Fox News in May 2009, Petraeus aligned himself squarely with critics of the CIA, who have accused top counterterrorism officials in the agency of violating the law and violating our values. He declared:
When we have taken steps that have violated the Geneva Conventions, we rightly have been criticized. So as we move forward, it is important to, again, live our values, to live the agreements we have made in the international justice arena, and to practice those.
You can see the video here:
In fact, as I make clear in my book Courting Disaster, the United States did not violate the Geneva Conventions. When Petraeus declares that CIA officials did so, he is effectively calling them war criminals. That is not encouraging to the men and women he may be about to lead.
Of course, his statements are in line with those made by Attorney General Eric Holder and President Obama, each of whom has leveled similar accusations. Current CIA director Leon Panetta was also a critic of CIA interrogations before taking the helm of the agency. But once he arrived at Langley, while not backing off his prior opposition to the program, Panetta became a strong defender of the agency’s interrogators—vigorously opposing the release of the Justice Department memos detailing the CIA’s interrogation techniques, and fighting Holder’s decision to re-open criminal investigations into their conduct, overriding the considered opinions of career prosecutors who declined to prosecute them. In light of Petraeus’s unfortunate comments, CIA officials have a right to wonder: will they have a similarly vigorous advocate in their new director?
Thanks to Obama the CIA is out of the interrogation business, so there is no immediate impact on U.S. interrogation policy (or lack thereof). But that is also the problem. Appointing a CIA director with such restrictive views on interrogation does not bode well for the chances of much-needed improvements in our detention and interrogation policy.
General Petraeus should be asked tough questions during his confirmation hearings. These include:
• If he really believes that CIA officials violated the Geneva Conventions and thus the laws of war, does he support criminal prosecution of those who approved enhanced interrogations and those who carried them out?
• Is the Army Field Manual (whose drafting he supervised) really sufficient to question high-value detainees?
• Since the manual is publicly available on the Internet, can’t terrorists train to resist those techniques?
• Does the Field Manual exhaust every possible lawful interrogation technique? And if not, why should the United States deprive itself of other lawful interrogation techniques?
• What does he think of former CIA Director Mike Hayden’s argument that the president’s executive order should be amended to allow additional lawful techniques, or that a classified annex be added to the manual to restore some uncertainty as to what captured terrorists may face?
• Why is it that, outside of Iraq and Afghanistan, there has been not one single detention of a high-value al Qaeda terrorist by the United States since Obama took office? And what, if anything, will he do to change that?
• Does he believe that high-value terrorists should be taken into custody alive whenever possible, rather than being killed with unmanned drones?
• If he agrees that terrorists should be taken into custody alive whenever possible, exactly where should they be taken? Does he agree with current CIA Director Leon Panetta’s statement to Congress that if the United States captured any high-value al Qaeda terrorists, they would likely be taken to Guantanamo Bay for questioning?
• What will he do about Umar Patek—the first high-value al Qaeda terrorist captured alive since Obama took office? Patek is in Pakistani custody, and the United States has reportedly not been allowed access to him. Press reports indicate that Patek was in Yemen before his capture, and attended a meeting of fellow jihadists in Mecca before heading to meet with al Qaeda leaders in Pakistan—meaning he could have potentially life-saving information about plots against the homeland.
• Is it acceptable for the United States to be without access to such a high-value terrorist? Does he agree that it is essential such a high-value terrorist be taken into U.S. custody for interrogation? As CIA director, would he do everything in his power to ensure that Patek in transferred into U.S. custody, just as Khalid Sheikh Mohammed and other senior al Qaeda leaders were once handed over to the United States by Pakistan?
General Petraeus is an outstanding military leader who turned the tide of the conflict in Iraq and has set the battle in Afghanistan on a positive trajectory. He deserves respect and admiration for these achievements. But this does not mean that he is the right man to lead the CIA. Petraeus should have to answer these and other pressing questions before he is confirmed by the Senate for this critical post.
(U.S. Navy photo by Photographer’s Mate 1st Class Shane T. McCoy)
Washington Post writers Peter Finn and Anne Kornblut recently examined the Obama administration’s vexations toward closing down the Guantanamo Bay Detention Center. The article cites lack of leadership, legislative restrictions, and legal hurdles in the administration’s slow reversal of its plan to try detainees in civilian court.
Public opinion should be added to the list of obstacles. Although President Obama recently told AP that he doesn’t plan to “stop making the case” to close the prison, he may have missed his opportunity in ensuring public support. Polling shows that the high-water mark for approval of closing the Guantanamo Bay prison was in early 2009, at the beginning of his presidency. Over the last two years, opinions have shifted to favoring keeping the facility open. In February 2009, a plurality of 46 percent told Pew pollsters that they approved of Obama’s decision to close the military prison. Thirty-nine percent disapproved. By November 2009, only 39 percent approved and nearly half, 49 percent, disapproved. While new polling on the issue has been scarce, 67 percent approved the administration’s decision of “keeping open the prison at Guantanamo Bay for terrorist suspects” in an April 2011 NBC/Wall Street Journal poll.
It probably doesn’t come as much surprise that people are paying little attention to the issue. Only 16 percent told Pew in March 2011 that they were paying a lot of attention to “President Obama’s decision to allow military trials of detainees at Guantanamo Bay.” Back in February 2009, 57 percent said they were paying a lot of attention to Obama’s decision to close Guantanamo in a year.
Recent polling has shown that Americans favor military tribunals over civilian trials. In a January 2010 Quinnipiac poll, a solid majority, 59 percent, preferred “trying people suspected of involvement in terrorists attacks” in “a closed military court with a military judge.” Thirty-four percent preferred an open criminal court.
A driving factor behind the shift in attitudes, as the Post article cites, is that people don’t want the prisoners in the United States. A January 2010 Fox News question, which asked respondents to assume that Guantanamo was closed, found that a majority (58 percent) wouldn’t want the prisoners to be transferred to the United States. Only a third were in favor of transfer. Given these strong public reservations, it seems that Obama has quite an uphill battle ahead if he still plans to close the prison.
What the New York Times released, the stolen property of the U.S. government, are the JTF Guantanamo Joint Intelligence Group Detainee Assessment Branch DAB Assessments. They were organizational assessments and should not be construed as the exclusive Department of Defense or U.S. government determination regarding specific detainees, but within a continuous broader framework of conscientious assessment and review.
The damage through this unauthorized disclosure, of course, is the potential exposure of sources and methods; potential risk of exposure of U.S. personnel; and the negative impact on detainees who provided information, as well as the effect on future sources of intelligence, because the perception will be that the United States cannot protect its sources of information. There is no upside for anyone, interrogee or cooperative source, if the end result is being exposed before the population of the planet on the Internet. There is certainly no upside for the American public, nor for the children, fathers, husbands, and wives serving in hostilities in faraway lands.
As to the content of the assessments, I was directly and personally responsible for the JTF Guantanamo process, I oversaw, reviewed, and approved each assessment which subsequently became the JTF commander’s recommendation. I am proud of the process, and notwithstanding detractors, am confident that a reasonable person would conclude the assessments were accomplished in a professional, deliberate, thoughtful, and conscientious manner, with regard only to determining whether or not an individual posed and continued to pose a threat to U.S. military personnel, citizens, and interests.
Discerning readers should clearly understand that the unauthorized disclosure of this material in no way declassifies it, or alters the underlying rational that disclosure of such material may be harmful to U.S. personnel and interests. Further, it should be clearly understood that the material released through unauthorized disclosure does not reflect the full body of information available to our military intelligence analysts that may have contributed to findings in individual assessments.
Paul Rester is former director of the Joint Intelligence Group, Guantanamo Bay. The opinions expressed are those of the author.
Something’s missing around Washington this week. The lawmakers? Spread to the four corners with the winds of recess: John Boehner’s off in Afghanistan, Harry Reid is leading a delegation to China. With our congressional leaders goes the drama, leaving the Hill a bit quieter and the Metro platforms a little less crowded. But not all has been still in the House, as President Obama’s administration has brushed off a request from the lower chamber’s top cop, Oversight Committee Chairman Darrell Issa, to provide documents related to ATF operations in which the United States allowed guns to be smuggled to drug cartels in Mexico.
Issa fired off a letter to the Bureau of Alcohol, Tobacco, Firearms, and Explosives today noting that the documents were requested March 16, the subpoena was issued on March 31, the deadline was April 13, and instead of the documents Issa says he received “vague assertions”—but not a claim of executive privilege—about the sensitivity of an ongoing investigation as an excuse of why the documents weren’t handed over. Issa spells it out: “We are not conducting a concurrent investigation with the Department of Justice, but rather an independent investigation of the Department of Justice.”
And to spell it out even further: “If you do not comply with the subpoena, the Committee will be forced to commence contempt proceedings.”
He of the cop stick figure avatar threatened the same in a tweet late this morning: “If ATF refuses to comply w/ #gunrunner subpoena, we’ll be forced to start contempt proceedings.”
The Daily Caller notes that this is the first time since the GOP took over the House in midterm elections that the administration has turned its nose up at a congressional subpoena. And it’s not like they weren’t prepared. Before he even took the Oversight gavel, Issa promised, “I’m going to go after a lot of things, and I’m going to do a lot of investigating.” So expect a tale to unfold that has more to do with White House politicking and less to do with ATF record keeping.
Who said there weren’t any good Hill battles during recess?
In this Sunday’s New York Times, William Shawcross (whose father was the chief British prosecutor at Nuremberg) published a vigorous defense of military commissions to try Khalid Shiekh Mohammed. In it, Shawcross makes this intriguing proposal:
President Obama could seek to make trials in Guantánamo more accessible to the rest of the world… Even on Sept. 11, hundreds of those killed were non-Americans. Britain lost 67 people that day. Their families, too, have an interest in seeing justice done. They could also assist.
The United States is well practiced at military officer exchanges. Why not invite those nations with a jurisdictional claim against Mr. Mohammed—those which lost citizens on 9/11—to send cleared and qualified senior military lawyers to serve in the court at Guantánamo? This could be done after Congressional modification of the 2009 Military Commissions Act to determine in what roles they could serve. Britain, Japan and Ghana are three countries that could qualify.
Such internationalization of the court in Guantánamo would call the bluff of those American allies who benefit from American protection but cannot resist criticizing its processes. It would not be precisely modeled on the successful tribunal at Nuremberg, but it would follow in that hybrid tradition of using the best civilian and military advocates, prosecutors and processes all carrying out their tasks in the full view of the press.
This is, quite simply, brilliant. The image of jurists from countries that have spent the last decade portraying Guantanamo as a modern-day gulag sitting in judgment at a military trial at Guantanamo is almost too delicious to pass up.
Unfortunately, the idea is probably unworkable, for one simple reason having nothing to do with Guantanamo: the case against KSM will be a capital case. It will likely end with the execution of the 9/11 mastermind and his collaborators. Most of the countries we would ask to participate in such a scenario oppose capital punishment. Indeed, many have laws barring extradition of suspects to the United States if the government intends to pursue the death penalty. They would likely demand that we take the death penalty off the table in exchange for their participation. The idea of Guantanamo’s critics helping to try KSM at Guantanamo is intriguing. But if it means forswearing KSM’s eventual execution, the price is too high.
In his press conference this afternoon announcing that Khalid Skeikh Mohammed and his fellow 9/11 co-conspirators would (finally) be tried by military commission, Attorney General Eric Holder insisted that he was right all along, and lashed out at those who opposed his plan for civilian trials. Said Holder:
After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court. I stand by that decision today.
As the indictment unsealed today reveals, we were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators – one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor …
Unfortunately, since I made that decision, members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue… Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications …
Sadly, this case has been marked by needless controversy since the beginning. But despite all the argument and debate it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points … This case has always been about delivering justice for [the] victims, and for their surviving loved ones. Nothing else. It is my sincere hope that, through the actions we take today, we will finally be able to deliver the justice they have so long deserved.
With all respect to the attorney general, spare me.
First, while Holder complains about the powerful case civilian prosecutors had worked so hard to prepare, and how all that outstanding research must now be put aside, he failed to mention that military prosecutors had also carefully prepared a powerful case against KSM and his cohorts—before Holder took the case away from them, casting aside all their hard work. You could almost see the eyes rolling in the Office of Military Commission as Holder spoke.
Second, while he complained about others using this prosecution as a vehicle for “settling ideological arguments,” it was in fact Holder’s ideological insistence on moving the trial into the civilian criminal justice system that started the “needless controversy” in the first place. KSM had offered to plead guilty at Guantanamo. Holder effectively rejected his plea and moved the case into civilian courts, delaying justice for years. So Holder’s claim that “this case has always been about delivering justice for [the] victims, and for their surviving loved ones. Nothing else” is a bit insincere. If that was really his concern, he should have left the case in the hands of military prosecutors who were ready to accept a guilty verdict and proceed to execution.
Finally, as for the ideological opposition to civilian trials in Congress, Holder failed to mention that it was the outgoing Democratic Congress that passed the restrictions about which he complained today. The opposition to civilian trials for KSM and the other terrorist behind 9/11 was overwhelming and bipartisan. The only one who didn’t seem to get it—and who stubbornly insisted on using this case to pursue his own ideological agenda—was Eric Holder.
Moments before a conference call with reporters was scheduled to get underway on Tuesday morning, apparently unaware that many of the reporters were already on the line, Charles Schumer of New York, the No. 3 Democrat in the Senate, began to instruct fellow senators on how to talk to reporters about the contentious budget process.
After thanking his colleagues — Barbara Boxer of California, Ben Cardin of Maryland, Tom Carper of Delaware and Richard Blumenthal of Connecticut — for doing the budget bidding for the Senate Democrats, who are facing off against the House Republicans over how spending for the rest of the fiscal year, Mr. Schumer told them to portray John Boehner of Ohio, the Speaker of the House, as painted into a box by the Tea Party, and to decry the spending cuts that he wants as extreme. “I always use the word extreme,” Mr. Schumer said, “That is what the caucus instructed me to use this week.”
A minute or two into the talking-points tutorial, though, someone apparently figured out that reporters were listening, and silence fell.
Then the conference call began in earnest, with the Democrats right on message.
“We are urging Mr. Boehner to abandon the extreme right wing,” said Ms. Boxer, urging the House to compromise on the scale of spending cuts and to drop proposed amendments that would deny federal financing for Planned Parenthood and for government agencies like the Environmental Protection Agency.
Mr. Carper continued with the theme, referring to some House Republicans’ “right-wing extremist friends.” Mr. Cardin decried Mr. Boehner giving into “extremes of his party.” Mr. Blumenthal closed by speaking of the “relatively small extreme group of ideologues” who are “an anchor” dragging down the budget negotiation process.
Yesterday, the U.S. Supreme Court declined to hear arguments in S&M Brands v. Caldwell. The case presented a challenge to the 1998 “Master Settlement Agreement” (MSA) between large tobacco manufacturers and state attorneys general, which imposed—without the consent of the Congress, and without the vote of a single state legislator—a $250 billion tax on tobacco consumers. (The proceeds of that tax have since been shared between Big Tobacco, the states, and the trial lawyers who assisted the states.) Lower courts had sustained the agreement. The Supreme Court’s denial of certiorari has effectively affirmed those holding and immunized the MSA from here to eternity.
The cert denial bodes ill—very ill—for any lawsuit predicated on the notion, or hope, that the Supreme Court will one of these days enforce the structure of the Constitution. The Constitution’s Compact Clause categorically prohibits any agreement among the states without congressional consent, let alone an agreement among all states to create monopoly profits and to share them with tobacco peddlers. The plaintiffs’ case was sufficiently compelling to draw vocal support from constitutional luminaries across the political spectrum—from Michael McConnell to Kathleen Sullivan; from Alan Morrison to Richard Epstein, as well as a group of prominent antitrust experts. And yet, in the teeth of the clear constitutional language, and in a political environment that, shall we say, suggests heightened public concern over crony capitalism, government collusion, and the erosion of constitutional norms, the justices couldn’t be bothered. (S&M Brands was “re-listed” once, meaning that it died not at the hands of some law clerk but after discussion among the justices themselves.) They’re too busy adjudicating the constitutionally mandated distance between funerals and obnoxious protesters.
Perhaps, a team of justices that fumbles the simple S&M Brands hand-off is yet capable of catching a constitutional Hail Mary—say, an ObamaCare “mandate” lawsuit. The smart money says otherwise: when it comes to constitutional constraints on government, we’re on our own.
The New York Times reports that the International Criminal Court (ICC) is sticking its nose into the conflict in Libya:
The International Criminal Court has started a formal investigation into possible crimes against humanity in Libya that will focus on the role of the country’s leader, Col. Muammar el-Qaddafi, several of his sons and members of his inner circle, the chief prosecutor said Thursday.
Luis Moreno-Ocampo, the prosecutor, said his office had received confirmation that Libyan security forces had fired on peaceful demonstrators, killing hundreds, and that many had been illegally detained in episodes involving at least nine different towns since Feb. 15.
Mr. Moreno-Ocampo said he hoped that at this stage his actions could have a deterrent effect. He said he was putting senior officials in Libya — “individuals with formal or de facto authority” — on notice that they could be held responsible if forces under their command committed crimes.
Actually, Moreno-Ocampo’s actions could have precisely the opposite effect—causing more violence and more atrocities. Here is why: If we have any hope of convincing dictators like Qaddafi to step down, in exchange for abdicating power they must have the option of some form of safety in exile. (Case in point: Tunisia,where President Zine al-Abidine Ben Ali handed over power and left with his family for a comfortable exile in Saudi Arabia).
But when the ICC begins an investigation, particularly before the outcome of a conflict is determined, it closes off this possibility and sends dictators and other top officials a message: no matter what you do, the world will not rest until you are sitting in a courtroom in The Hague. The lesson the dictators take is: Never step down—you’d be a fool to give up power. Fight until the last man.
This is the message sent to Qaddafi and his coterie when the ICC announced its investigation. Indeed, the Times’s Nicolas Kristof (unintentionally) makes the case in his column yesterday:
A well-connected friend in Tripoli grimly said of Colonel Qaddafi: “He believes that since he has nowhere to go, he’ll take as many people with him as he can.”
The ICC has just helped seal that impression in Qaddafi’s mind, and that may help seal the fate of the innocent people he might take with him.
The desire for justice is understandable in the face of the atrocities we have seen in Libya in recent weeks. But our first priority should be to prevent further atrocities. The ICC is making them more likely. Who among us would not trade Qaddafi a comfortable exile in exchange for ending the bloodshed now? Apparently, the International Criminal Court.
District court decisions over the “individual mandate” provisions of ObamaCare (most recently, Judge Kessler’s February 22 decision) have highlighted a nasty constitutional difficulty. Call it the “bootstrap problem.”
Shorn of its alluring fur, the administration’s defense of the mandate is this: through minimum-coverage mandates and a prohibition against excluding applicants with pre-existing conditions, ObamaCare turns health insurance into a product that cannot survive in an ordinary market. Therefore, it is “necessary and proper” to compel its purchase by people who would rather not buy it. Judge Vinson, in the course of an impressive opinion in the Florida case, noted the obnoxious logic of this argument: “The more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.” Judge Kessler’s opinion contains a variation on the theme. Confronting the plaintiffs’ argumentum ad broccolum—“If Congress may mandate the purchase of health insurance on the theory that everyone will need it at some point, it may also mandate the purchase and consumption of broccoli”—the judge responds that we can be confident that future consumers of food won’t be permitted to rake it off the shelves without paying. Not so with healthcare: federal law compels healthcare providers (such as hospitals) to care for needy patients, regardless of their ability to pay. The cross-subsidy makes the healthcare market “unique” and provides the constitutional hook for the individual mandate.
Why haven’t plaintiffs contested this bootstrap rationale head-on? Because the case law, and the Constitution itself, block that attack. Wickard v. Filburn (1942), the notorious commerce clause case over a federal prohibition against the production of wheat for home consumption, is a classic bootstrap case. After the Smoot-Hawley tariffs had destroyed U.S. export markets, the country confronted excess capacity and supply in agricultural commodities, which Congress—compounding, as usual, one idiocy with another—sought to reduce by means of marketing quotas. To make the quotas stick, the government had to control the local transactions. Concede the premise (that is, the congressional power to limit national supply): contrary to lore, Wickard is an easy case, correctly decided. And the premise, for better or worse, is unassailable. The power to regulate interstate commerce encompasses the power to regulate it into the ground.
The challenge in the individual mandate cases is to craft an argument that steers around this fateful logic. A clear-eyed recognition of the problem may make that difficult task a little bit easier.
In Kelo v. City of New London (2005), the Supreme Court restated as a “long . . . accepted” constitutional principle of the Fifth Amendment’s takings clause “that the sovereign may not take the property ofA for the sole purpose of transferring it to another private partyB,” and this is so “even ifA is paid just compensation.” “Long accepted” is right; the quotation can be traced back to Calder v. Bull in 1798, and has been picked up in many takings analyses in between.
Given this, one would be surprised to see the Department of Justice argue in court that transferring property from A to B is not just the effect but the justification for a law.
Yet ObamaCare has produced many strange and wonderful things, and one of them is to elicit precisely this argument from the DOJ. According to Judge Vinson’s opinion (pp. 56-57), the defense of the individual mandate under the necessary and proper clause rested on the proposition that ObamaCare bans insurance companies from charging higher premiums to those with pre-existing conditions, and that as a result it is necessary to force those who might not otherwise buy insurance into the pool so they can subsidize the first group, since, obviously, no sensible person without a condition would buy insurance.
It is difficult to see this as anything except taking money from A (those without pre-existing conditions) to give it to B (those with). So how did this practice, regarded as indisputably unacceptable under the takings clause, become positively virtuous under the commerce clause?
This issue also illustrates a problem with the ObamaCare litigation. The focus on the activity/inactivity distinction under the commerce clause makes excellent sense as a matter of legal tactics, but the real defects of the law are far more basic. They involve concepts of arbitrary takings, undue delegation, chaotic congressional procedure, equal protection, and the need for some as-yet-unrecognized right to rudimentary competence and honesty in government. The fact that constitutional litigation has become such a stylized ritual that it has no tools for addressing these real issues is a problem even more serious than the healthcare law itself.
U.S. District Judge Roger Vinson’s thorough and well-reasoned opinion granting summary judgment to plaintiffs in Florida, et. al v. Department ofHealth and Human Services, changes the landscape over which the merits of ObamaCare will now be debated. As the judge said, the lawsuit is not about whether healthcare reform is a good idea or a bad idea, but whether Congress has the constitutional authority to require nearly every American to obtain and maintain healthcare insurance. This healthcare insurance “mandate” is at the core of the Patient Protection and Affordable Care Act (PPACA), and it is that requirement the court determined to be unconstitutional because it exceeds Congress’s enumerated powers.
In particular, the court rejected the administration’s claims that the simple failure to have healthcare insurance as prescribed by Congress is a form of economic “activity” that Congress can reach under its power to regulate interstate commerce. The court agreed that, if the commerce power were interpreted so broadly that Congress could reach the failure to act, simply because that failure may have an economic impact at some level, then there would be no effective limit on congressional/federal power.
This, of course, was not the purpose or intent of the Constitution’s framers, and upholding the exercise of such a power would be fundamentally inconsistent with the federalist system they adopted. As a result, the court struck down the individual mandate and, because that central provision cannot be severed from the rest of the PPACA, the entire Act has fallen.
There will obviously be appeals, and ultimately it will be the Supreme Court that settles the issue. For the time being, however, the federal government cannot enforce the PPACA against any of the 26 states who are parties to this lawsuit, or against the individuals and the National Federation of Independent Business, who are also plaintiffs in this case. Our task will now be to defend Judge Vinson’s excellent decision through the appeals process.
David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker Hostetler LLP and are the lead outside counsel in the Florida litigation for the 26 states and the National Federation of Independent Business.
Imagine for a moment if Khalid Sheikh Mohammed had been acquitted by a civilian jury on 2,966 individual murder counts for the attacks of 9/11, but convicted on a single count of “conspiracy to destroy government property.” Who in their right mind would call that a victory?
Yet that is exactly what supporters of civilian trials for terrorists are calling Ahmed Ghailani’s sentencing yesterday to life in prison—a victory for the criminal justice system. It is nothing of the sort. Indeed, the length of his sentence is irrelevant. Ghailani wasn’t going to be released regardless of the outcome of his trial. Last year, when Judge Lewis Kaplan barred the government’s star witness from testifying in Ghailani’s trial, he reassured Americans that Ghailani would not be set free any time soon because his status as an “enemy combatant” would permit his detention “until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”
The purpose of Ghailani’s prosecution was not to keep him off the streets. It was to deliver justice to his victims—and in this the Obama administration failed dramatically. Ghailani was acquitted on 284 of 285 counts brought against him, a fact that was buried in most of the news coverage (and sometimes not mentioned at all). His lawyers convinced a jury that he was a dupe who did not know the target of the attacks were two American embassies. As a result, he was convicted on one count of conspiracy to destroy government property (not the actual destruction of government property, mind you—just “conspiracy” to do so). Even Judge Kaplan acknowledged this was an injustice to Ghailani’s victims. As I point out in the Washington Post, when the defense sought to overturn Ghailani’s lone conviction, calling it a “manifest injustice,” Judge Kaplan slapped them down, declaring “If there was any injustice in the jury’s verdict, the victims were the United States and those killed, injured, and otherwise devastated by these barbaric acts of terror.”
In the courtroom yesterday, some of Ghailani’s victims spoke out about the suffering they had endured. CBS News described the scene:
Howard Kavaler, who worked with his wife, Prabhi, in the Kenya embassy—she died in the attack—turned directly to the defense table. “I hope you’re listening, Mr. Ghailani,” Kavaler said. His college-age daughters, who were 10 and 5 when they lost their mother, were in court with him. “I hope that Mr. Ghailani awakes every morning knowing the world regards him as a cowardly infidel.”
Elizabeth Maloba, from Kenya, said she was representing all the African women made widows by the bombings. “We live in a lot of agony; we live in a lot of anger,” she said. “The peace that I once enjoyed is no more in my life.”
Justina Mdobilu, who still works in the Dar es Salaam embassy, said she represented the Tanzanian victims—those principally hurt by Ghailani’s actions. Mdobilu, a political assistant who was eight months pregnant at the time, survived the blast and gave birth to a healthy boy, now 12, but she suffers from post-traumatic stress and hearing loss. “I have been able to move on, but I am struggling,” she said.
James Ndeda, from Kenya, spoke to the court as a survivor, having battled head injuries, asthma, and impotence since the Nairobi blast. “We lost fathers, mothers, brothers, sisters, neighbors, colleagues, and friends,” he said. Ndeda volunteered that he felt Ghailani deserved one year in prison for each of the 224 people killed.
But Ghailani was not convicted of killing any of those 224 people. Not one. Quite the opposite, he was acquitted of each of those 224 murders—declared “not guilty.” If Ghailani’s prosecution represents the kind of justice our civilian system can deliver to terrorist killers, it’s time to see what our system of military commissions at Guantanamo Bay can offer. And apparently that is precisely what President Obama plans to do. The president’s decision to resume new trials by military commission is the clearest admission of all that Ghailani’s trial was not a victory, but a debacle.
The text of the SOTU as delivered can be read in a few minutes, and be understood much more straightforwardly than by watching. Why watch?
I am a big fan of civic rites (I would never vote by mail if I could get to a polling place), and the SOTU was once such a ceremony that I felt duty-bound to watch. But those were the days when the president soberly gave a speech and our elected representatives listened quietly, with occasional applause. The president got a standing ovation when he entered the House chamber and when he completed the speech, as is appropriate. But for many years the SOTU has become a political circus. Yesterday’s speech was interrupted more than 75 times by applause, the Washington Post tells me. Since I didn’t watch, I can only guess how many of them involved some members leaping to their feet. A lot, I bet. It’s a bipartisan degradation of a fine old tradition. I wish the television ratings would plummet, and that the pollsters would discover that people no longer watched because they are disgusted. Who knows? A president sometime in the distant future might quietly send word to the senators and representatives that he doesn’t want them to interrupt him while he tries his best to describe the state of the union.
President Obama is reversing course and lifting the ban he imposed after his inauguration on new trials by military commission at Guantanamo—and not a moment too soon. As I point out in the Washington Post, Obama’s decision comes in the wake of the failed prosecution of Ahmed Ghailani, who was acquitted on 284 counts relating to his role in the bombing of our embassies in Kenya and Tanzania—in large part because the civilian jury never heard his 2007 confession to said crimes. The Ghailani case, which was supposed to be an easy conviction, underscores why civilian courts are the wrong venue for trying high value terrorist detainees.
The Obama administration seems to be coming to grips with this reality, as their decision to resume military commissions indicates. The next logical step should be to announce that the first new military commissions case will be brought against Khalid Sheikh Mohammed and his accomplices in the attacks of September 11, 2001.
But why stop there? With military commissions resuming, it would make sense for the administration to go all in, and resume bringing high-value terrorists to Guantanamo for interrogation as well. As I have written, and John Yoo recently wrote on this blog, the fact that Obama has stopped bringing terrorists to Cuba creates a strong incentive for our military to kill, rather than capture, high-value terrorists. The results are undeniable: While drone strikes have escalated in the past two years, outside the war zones of Afghanistan and Iraq, there has not been one reported high-value detention by the United States since Obama took office. We have stopped even trying to bring in high-value terrorists alive. This means we are losing invaluable intelligence because we have nowhere to detain and interrogate terrorists once they are captured.
Guantanamo is the logical place to do so. The facility is not closing anytime soon—the outgoing Democratic Congress saw to that. There are plenty of empty cells on the island. And Gitmo already has skilled and experienced military interrogators in place, ready to quickly exploit any fresh captures. Guantanamo is open for business in every respect but this. Obama ought to make his Guantanamo reversal complete and begin bringing captured terrorists to the island.
Does resuming new terrorist interrogation at Gitmo seem far-fetched? Perhaps. But when Obama first took office, it also seemed far-fetched that two years later Guantanamo would remain open, the administration would be affirming indefinite terrorist detentions, and Obama would be ordering new military commission trials on the island. Obama has reversed course on each of these matters. There’s no reason he cannot do the same when it comes to terrorist interrogations at Guantanamo.
When I first started writing about public opinion on abortion many years ago, the issue was a major political flashpoint. That’s not the case any longer. One reason may be the remarkable, rock-hard stability of opinion on it. Neither pro-life nor pro-choice activists have managed to alter the basic contours of opinion. In 1975, when Gallup asked about the availability of abortion, 21 percent of respondents said it should be legal under any circumstances, 54 percent said only under certain circumstances, and 22 percent said illegal under all circumstances. In 2010, those responses were almost identical: 24, 54, and 19 percent, respectively. The question has been asked more than 40 times, and opinion has barely budged.
Opinion is stable and complex. Americans value the sanctity of life and want to protect it. They also value personal choice, and questions that frame the abortion issue as a matter of individual choice show strong majority support. They want to keep abortion legal, but they are also willing to put considerable restrictions on its use. They favor parental consent and a waiting period, for example. One of the few abortion-related issues on the congressional radar screen is Republicans’ efforts to codify the Hyde amendment, which bars federal funding of abortion but must be renewed each year. Here again, public opinion is stable. Americans have long opposed federal funding of abortion.
There are some hints in the data that young people are more likely than in the past to consider themselves pro-life, but the polls aren’t consistent on the point, and we will have to wait for more surveys to see if something is happening to change the basic structure of opinion.
Drones don’t take prisoners. They also cannot interrogate high-ranking al Qaeda leaders. As a result, the United States today is killing more terrorists abroad, but it is losing our most valuable source of intelligence on the enemy. Meanwhile, the enemy has only redoubled its efforts to launch unconventional attacks on the U.S. homeland: witness the failed Christmas Day 2009 and Times Square bombings, among others.
These events are the inevitable consequences of President Obama’s naive decision two years ago: to close the terrorist detention facility at Guantánamo Bay, Cuba. Apparently convinced by the anti-war Left’s irresponsible allegations of widespread abuse and torture at Gitmo, Obama surely believed that his decision would help our anti-terrorism efforts, by making the United States more popular abroad and removing a terrorism recruitment tactic.
Instead, Obama has produced the opposite result. While Congress has succeeded in keeping Obama from closing the base and transferring enemy prisoners to the United States for trial in civilian court, he has stopped the United States from bringing any more prisoners to Cuba. This creates a strong incentive, if not command, to the troops in the field not to capture any more terrorists. Not only does this mean that more people die—not just al Qaeda leaders but nearby innocent civilians—but we lose the information they might provide us. And that is the most valuable weapon in this war, for only by learning al Qaeda’s plans can we take action to preempt their attacks on the U.S. homeland.
“I don’t want to be ambiguous about this. We are going to close Gitmo.”
President-elect Barack Obama on ABC “This Week,” January 11,2009.
What a difference two years as president makes.
When President Obama issued his January 2009 executive order closing the Guantánamo detention center as “consistent with the national security and foreign policy interests of the United States and the interests of justice,” anyone predicting it would still be open and thriving two years later would have been denounced as crazy. Yet this is precisely what has happened—and it is part of a larger picture. What President Obama seems to have learned between then and today is that George W. Bush’s war on terror was indeed consistent with America’s national security interests. So was keeping and interrogating prisoners at Gitmo.
Far from pulling us out of Iraq as presidential candidate Barack Obama promised, he has steadfastly kept us in. Far from scaling down the war in Afghanistan, he has ramped it up. It’s all been hedged with solemn pledges about deadlines for bringing American troops home—just like the pledge about closing Gitmo.
The same thing has happened with wireless wiretaps. Senator Barack Obama fiercely denounced them. Now they’re officially part of Attorney General Eric Holder’s anti-terrorist arsenal. When Bush inaugurated Predator drone strikes, human rights groups were furious. Now their favorite presidential candidate has made these strikes to an almost weekly event in Pakistan and Yemen. He’s also revived CIA covert operations, including mobilizing several thousand Afghan paramilitaries who conduct regular raids across the border into Pakistan—the biggest covert action program since the bad old days of Vietnam.
Some on the left might be excused for wondering whether Bush really left office, after all. That worries and depresses them. The rest of us breathe a sigh of relief.
Now we are waiting for President Obama to take the next step. This would be a public apology to former President Bush, Secretary of Defense Donald Rumsfeld, and Attorney General John Ashcroft, who saw that setting up the Guantánamo detention center was vital to America’s future security; and to the team at the Justice Department’s Office of Legal Counsel, including John Yoo and Jay Bybee, who made it clear that such a step was in keeping with U.S. principles of justice and the powers of commander-in-chief—and who, despite being cleared of any and all charges, continue to be denounced as war criminals.
And finally a vote of thanks to the American men and women who have served their country at Gitmo for almost ten thankless years: who have endured daily danger and humiliation from the inmates they supervise, subterfuge by the inmates’s lawyers and international groups, and who were attacked as vicious mindless torturers on the floor of the Senate.
Events have vindicated their cause, and history will remember their service. It’s time this administration did, too.
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President Obama is reversing course and lifting the ban he imposed after his inauguration on new trials by military commission at Guantanamo—and not a moment too soon. As I 
