Byline: Philip Bobbitt
Nine imperatives for our post-9/11 world.
Critics of the administration on the right have been quick to cite the attempted bombing over Detroit on Christmas Day as proof that President Obama's antiterror policies have put the country at greater risk. Those at the other end of the spectrum have criticized Obama for retaining too many of the previous administration's counterterror programs by endorsing the use of military tribunals, suggesting that at least some prisoners held at Guantanamo ought to remain in custody even if they cannot be successfully prosecuted in ordinary criminal trials, trying to prevent the disclosure of photographs of torture and its victims, refusing to renounce renditions, and escalating targeted killings. Which critique is correct?
They actually have a lot in common. Earlier this year, former vice president Dick Cheney claimed that there "is a great dividing line in our current debate over national security. You can [conclude that the Bush] strategy has worked and therefore needs to be continued -- Or you can [conclude that 9/11 was] not sufficient to justify a sustained wartime effort." Many of Cheney's most vociferous critics implicitly buy into the same dichotomy--they just think that Obama has, in fact, decided to continue the Bush strategy. The only alternative, they imply, is a wholesale rejection of the practices of the Bush administration and a return to the policies that characterized U.S. criminal and intelligence practices prior to 9/11.
Both sets of critics are missing the true flaws in the Bush administration's approach--and the virtues of Obama's. Bush and Cheney were not wrong to conclude after 9/11 that the existing statutory framework for dealing with terrorism was outmoded--it was. But rather than changing the laws, they refused to ask Congress for authorization to intercept communications linked to suspected terrorists without seeking warrants. They refused to seek statutory authority for preventive detentions (that was the point of going offshore to Guantanamo, where they thought a habeas-corpus-free zone could be created). They stripped military commissions of the protections recommended by a panel they had convened. In all these decisions, they kicked away the essential support of laws from their efforts and ended up being condemned by allies, handing terrorists a propaganda victory and having their policies repudiated by the American people. They carelessly invited the prosecution of loyal and earnest U.S. personnel whom they directed and refused to pardon for crimes.
And yet, in Talleyrand's famous phrase, their actions were worse than crimes: they were mistakes. That is because what we are fighting for in the wars on terror is precisely the rule of law. Thus, as British Gen. Sir Rupert Smith observed, "to operate tactically outside the law is to attack one's own war aim."
It is often asked, "How can we win a war against terror? Who would surrender? How can we make war against an emotion (terror) or a guerrilla technique (terrorism), neither of which are enemy states?" These questions assume that victory in war is simply a matter of defeating the enemy. In fact, that may be the criterion for winning in football or chess, but not warfare. Victory in war is a matter of achieving the war aim. The war aim in a war against terror is not territory, or access to resources, or conversion to our political way of life. It is the protection of civilians within the rule of law. Not coincidentally, this is what General Petraeus realized was necessary in Iraq, and it is what General McChrystal has testified will be his goal in Afghanistan.
If the laws are inadequate, then they must be reformed to take account of the new strategic context rather than be ignored or twisted. Failing to do this traps us in the Cheney/ACLU world, in which we either act lawlessly to protect our people and thus turn …