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 Guantánamo 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 Guantánamo, 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 every success into failure, or we await the next attack with the very practices and rules that invited the last one. When Obama promised in his speech at the National Archives to go to Congress for new statutory counterterror authorities, he made a decision as important strategically as it was constitutionally.
A short list of initiatives to accompany the successful reform of electronic surveillance laws passed by Congress earlier last year should include:
Statutory rules to authorize preventive detentions, which Obama recognizes we need and which our European allies already have, but which the administration has mistakenly backed away from under pressure.
A special Article III court to try terrorists, with the appropriate evidentiary rules and safeguards for defendants.
Regulations strengthening external oversight of data mining so that this valuable tool can be more usefully employed: if the government had taken the names it already had on its terrorist watch list and swept airline reservations, then cross-checked these with street addresses, telephone numbers, postal and immigration records, frequent-flier and credit-card numbers, all 19 of the hijackers would have been identified and seen to be flying together on 9/11.
Addressing the privacy concerns that have prevented the installation of millimeter-wave scanners and other body-scanning devices at U.S. and international airports.
A national ID card law that requires a template for all state driver's licenses and sets rules for the inclusion of biometrics and safeguards for the use of personal information. (Can most policemen in New York really tell a proper Idaho driver's license from a forgery?)
Adoption of the isolation-and-quarantine statute crafted by the Centers for Disease Control, which would provide federal legal authority and rationalize the hodgepodge of current state and local laws in order to prevent the potentially fatal confusion that would ensue if a significant biological attack or epidemic should strike.
Establish new laws to govern the use of federal troops in disasters and provide for disaster relief. Current laws—beyond the inexperience and incompetence of managers—bedeviled rescue operations during Hurricane Katrina.
Mandatory insurance for critical infrastructure, which is largely in private hands and is highly vulnerable to cyberattacks.
New rules governing the replacement of members of Congress, the Supreme Court, and the executive branch in case of mass attacks on these institutions: to take just a single example, the fourth plane on 9/11 would have hit the Capitol during a roll-call vote in the House, quite possibly requiring months before a quorum could be legitimately reestablished by elections and thus forcing the U.S. into an extended period of martial law.
These are controversial proposals, and I have no illusions that they will effortlessly win support from Congress. What's most important is that we debate them openly and not be intimidated by those, at both ends of the political spectrum, who wrongly assume that security and liberty are opposing objectives. It is not necessary to sacrifice our civil liberties to realize these reforms, unless you think constitutional rights are declared by editorial boards and pressure groups and not by the U.S. Supreme Court. Nor is it necessary to compromise the protection of our people unless you have lost sight of the war aim and how to achieve it.
It is too early to praise the Obama administration, which has yet to deliver on the important changes in approach promised by the president. But it is not too soon to encourage them. Indeed, as events of this week showed, it could easily have been too late.
Bobbitt, the author ofTerror and Consent, is a professor at Columbia Law School, a fellow at the University of Texas School of Law, and serves on the Task Force on Law and Security at the Hoover Institution.