Obama’s Cheney Dilemma

Dick Cheney, who will step down as vice president on Jan. 20, has been widely portrayed as a creature of the dark side, a monstrous figure who trampled on the Constitution to wage war against all foes, real and imagined. Barack Obama was elected partly to cleanse the temple of the Bush-Cheney stain, and in his campaign speeches he promised to reverse Cheney's efforts to seize power for the White House in the war on terror.

It may not be so simple. At a retirement ceremony recently for a top-level intelligence official, the senior spooks in the room gave each other high-fives. They were celebrating the fact that terrorists have not attacked the United States since 9/11. In the view of many intelligence professionals, the get-tough measures encouraged or permitted by George W. Bush's administration—including "waterboarding" self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed—kept America safe. Cheney himself has been underscoring the point in a round of farewell interviews. "If I had advice to give it would be, before you start to implement your campaign rhetoric, you need to sit down and find out precisely what it is we did and how we did it, because it is going to be vital to keeping the nation safe and secure in the years ahead," he told CBS Radio.

In times of war and crisis, as presidents such as Lincoln and Franklin Roosevelt discovered, the nation needs a strong chief executive. The flaw of the Bush-Cheney administration may have been less in what it did than in the way it did it—flaunting executive power, ignoring Congress, showing scorn for anyone who waved the banner of civil liberties. Arguably, there has been an overreaction to the alleged arrogance and heedlessness of Bush and Cheney—especially Cheney, who almost seemed to take a grim satisfaction in his Darth Vader-esque image. The courts, at first slow to respond to arrogations of executive power after September 11, have pushed back. Many federal officials have grown risk-averse, fearing that they will be prosecuted or dragged before a congressional committee for fighting too hard against terrorism. (A growing number of CIA officials buy insurance policies to cover legal fees.)

Obama, who has been receiving intelligence briefings for weeks, already knows what a scary world it is out there. It is unlikely he will wildly overcorrect for the Bush administration's abuses. A very senior incoming official, who refused to be quoted discussing internal policy debates, indicated that the new administration will try to find a middle road that will protect civil liberties without leaving the nation defenseless. But Obama's team has some strong critics of the old order, including his choice for director of the CIA, Leon Panetta, who has spoken out strongly against coercive interrogation methods.

In Obama's spirit of nonpartisanship, the new crowd would do well to listen to Jack Goldsmith, formerly a Bush Justice Department official, now a Harvard Law School professor. At Justice, Goldsmith was the head of an obscure but critically important unit called the Office of Legal Counsel. OLC acts as a kind of lawyer for the executive branch, offering opinions—close to binding—on what the executive branch can and cannot do. It was an OLC lawyer, John Yoo, who in 2001 and 2002 drafted many of the memos that first gave the Cheneyites permission to do pretty much whatever they wanted in the way of interrogating and detaining suspected terrorists (and eavesdropping on Americans to catch terrorists). Goldsmith, who became head of OLC in 2003, quietly began to revoke some of these permissions as illegal or unconstitutional. The revolt of Goldsmith and some other principled Justice lawyers was a heroic story, kept secret at the time. Now Goldsmith worries about the pendulum swinging too far, as it often does in American democracy. "The presidency has already been diminished in ways that would be hard to reverse" and may be losing its capability to fight terrorism, he says. He argues that Americans should now be "less worried about an out-of-control presidency than an enfeebled one."

Obama is going to face some difficult choices—and right away. By Feb. 20, a month after Inauguration Day, the incoming administration must decide whether to urge the Supreme Court to allow continued detention of one Ali al-Marri. Al-Marri is a Qatari graduate student who had legally entered the United States and settled in Peoria, Ill., with his wife and five children. He was seized in 2001 as a suspected terrorist—the long-feared Qaeda sleeper agent, sent to the United States to conduct a suicide attack when given the signal by his terrorist controllers. (Reportedly, Khalid Sheikh Mohammed, under intense interrogation, corroborated al-Marri's identity.)