MARCH 4, 2009
Dick Cheney is never known for his good cheer, but, when Politico interviewed him recently, he sounded especially dour on the subject of Barack Obama's intentions vis-a-vis counterterrorism. In what seemed like a direct slap at the new president, Cheney warned that national security is "a tough, mean, dirty, nasty business ... and we're not going to win this fight by turning the other cheek."
While Cheney didn't come out and say so, he sounded pretty convinced that Obama was planning a civil-liberties bender. And, based on Obama's inaugural address ("we reject as false the choice between our safety and our ideals") and his initial executive orders on Guantanamo, interrogations, and CIA secret prisons, it certainly did seem like the new president was initiating a major departure from the tough, mean, dirty, nasty policies of recent years. Since 1995, when the CIA began a special rendition program to snatch Al Qaeda operatives off the street and bring them to America or another country for interrogation and prosecution, the powers of the U.S. intelligence community have expanded exponentially. Obama's decisions to close Gitmo and proscribe torture marked the first time since 1995 that a U.S. president had voluntarily relinquished power in the war against Al Qaeda. Moreover, Obama's largely unnoticed presidential memorandum on the Freedom of Information Act--which reestablished an older, more permissive standard for the release of documents-- appeared to tip the balance between liberty and security even further in liberty's direction.
Yet, despite these developments, the first few weeks of Obama's presidency have also offered hints that the new president is leaving himself wiggle room on fighting terrorism. While his initial executive orders did represent real advances for civil libertarians, there are a growing number of reasons to suspect that Obama will not be quite as liberal on these matters as his rhetoric might have suggested, his supporters might have hoped, or Dick Cheney might have feared.
Take, for example, the 243 prisoners at Gitmo. Obama may have ordered the base shut and suspended all military tribunals there--but that doesn't mean that all the prisoners are necessarily going to end up in civilian courts. "They're either going to be moved and tried in American courts, tried in military courts, or they're going to be sent back to their countries," Vice President Joe Biden told CBS on January 25. More recently, incoming CIA director Leon Panetta said in his confirmation hearing that a cabinet-level review of the cases will determine "what prisoners can be tried, what prisoners can be transferred, what do you do with those prisoners who can neither be tried or transferred for some reason and what will happen with them."
On torture, Obama began his administration by saying that the United States would only use interrogation techniques found in the Army Field Manual, a document that is in line with the Geneva conventions. But this week, in announcing his plans to vote to confirm Panetta, Republican Senator Kit Bond said that he was supporting the nominee in part because he had "committed to ... exploring the use of enhanced interrogation techniques on high-value detainees that may warrant going beyond the Army Field Manual in certain situations."
As for rendition, the controversial practice of kidnapping terrorist suspects on foreign soil and frequently sending them to other countries, Obama shut down permanent CIA secret prisons known as black sites, where Al Qaeda leaders were often held after being captured. But he is leaving open what one of his executive orders called "facilities used only to hold people on a short- term, transitory basis." The option for temporary detention strongly suggests that Obama's CIA will still practice some form of rendition. When asked about this at his confirmation hearing, Panetta said that terrorist suspects would not be picked up off the streets at random and sent to foreign dungeons for the purpose of being tortured. But he also said, "Renditions where we return an individual to the jurisdiction of another country, and then they exercise their right to try that individual and to prosecute him under their laws--I think that is an appropriate use of rendition."
Indeed, a senior White House legal adviser tells me, "There have been no changes to rendition policy, except to the extent that renditions would render people to places where they would be treated humanely." Jeffrey Smith, a former CIA general counsel who has been consulted by the new administration on these issues, says the change on rendition "is not a seismic shift in policy." He adds, "Rather, it is that the United States will send individuals to other states, and, if those states have a questionable record on human rights, then we will not only seek assurances as we have in the past, but that we will be more rigorous on following up on those assurances." In all likelihood, this means that we will still send prisoners to jails in Egypt and Jordan. Of course, doing more to ensure that rendered suspects are not tortured in those countries would represent a small measure of progress as far as human rights advocates are concerned. But it's hardly the sweeping change many were hoping for.
Finally, Obama's Justice Department appears to be continuing the Bush administration's practice of urging domestic courts to throw out civilian cases involving rendition and torture allegations. That, at least, is what happened on February 9, when the department told the Ninth Circuit Court of Appeals that a lawsuit on behalf of Guantanamo detainee Binyam Mohammed would disclose state secrets and should therefore be dismissed. Mohammed, a British resident, was captured after September 11, then allegedly sent to a Moroccan jail. He ended up in Gitmo, where charges against him were eventually dropped.
Caroline Fredrickson, the ACLU's Washington legislative director, said the decision to invoke state secrets in the Mohammed case was "deeply disappointing. " The organization this week pressed allies in the House and Senate to introduce bills to limit the use of the state secrets privilege in court. It signals in some ways the end of Obama's civil liberties honeymoon.
Eli Lake is a national-security correspondent for The Washington Times.