Obama’s Cheney Dilemma

Al-Marri was charged with credit-card fraud and lying to the Feds, but the charges were dropped when he was put in military detention. (Held indefinitely in the Navy brig in Charleston, S.C., he claims he's innocent.) His case has become a cause célèbre among civil libertarians, who argue that the government can't just lock you up indefinitely on suspicion of terrorism. Now Obama must decide: Will he enrage many of his supporters by adopting Bush's claim of sweeping power to grab legal residents—and perhaps even citizens—and jail them forever? Or will he let a possibly very dangerous man go, and thereby concede that any Qaeda terrorist who can get into the United States legally is free to roam the country unless (and until) he commits a crime or maybe an immigration violation?

Both options would be political nightmares. It might be better for Obama to moot the case by using forceful diplomacy, and even financial incentives, to get Qatar or some other country to take al-Marri, treat him gently and keep him locked up. The Bush administration may have already secretly tried this; Obama could try harder.

The issue of torture is more complicated than it seems. America brought untold shame on itself with the abuses at Abu Ghraib. It's likely that the take-the-gloves-off attitude of Cheney and his allies filtered down through the ranks, until untrained prison guards with sadistic tendencies were making sport with electric shock. But no direct link has been reported. Waterboarding—simulating drowning by pouring water over the suspect's mouth and nostrils—is a brutal interrogation method. But by some (disputed) accounts, it was CIA waterboarding that got Khalid Sheikh Mohammed to talk. It is a liberal shibboleth that torture doesn't work—that suspects will say anything, including lies, to stop the pain. But the reality is perhaps less clear.

Last summer, the U.S. Senate (with Obama absent) voted to require the CIA to use no interrogation methods other than those permitted in the Army Field Manual. These are extremely restrictive: strictly speaking, the interrogator cannot ever threaten bodily harm or even put a prisoner on cold rations until he talks. Bush vetoed this measure, not unwisely. As president, Obama may want to preserve some flexibility. (Suppose, for instance, that after a big attack the CIA captured the leader who planned it; there would be enormous pressure to make the terrorist divulge what attack is coming next.) Obama may want to urge Congress to outlaw "humiliating and degrading" treatment of prisoners. But he might also want to carve out an exception for extreme cases, outlining coercive methods, like sleep deprivation, that could be used on specified detainees. To provide political accountability, the president should be required to sign any such orders, share them with the congressional intelligence committees and publicly disclose their number.

To avoid squandering the international good will that greeted his election, Obama will have to honor his pledge to close the Guantánamo Bay prison camp. But it's not clear what he will do with the 250 or so detainees now living there. Some of them may be dangerous, but impossible to convict of any crime in any ordinary court of law. Moving them to a prison in the United States would anger the locals; simply freeing them would be irresponsible. Obama's best bet may be trying to persuade foreign countries to take the 60 or so who have been found to be safe (enough) risks, while urging Congress to create some kind of new "national-security court" for the rest. This court could decide which men may be prosecuted or legitimately detained as "enemy combatants," and for how long. (If staffed by federal judges, with congressionally prescribed, painstakingly fair fact-finding procedures, and the ability to hear classified evidence in secret, these courts could replace the now discredited military commissions Bush authorized in 2001, which can admit evidence obtained from coercion.)

Obama has already shown a prudent willingness to bend or abandon his more sweeping campaign rhetoric. Last summer, to the horror of civil-liberties groups, he reversed himself and voted for amendments to the Foreign Intelligence Surveillance Act (FISA) that he once suggested would "undermine the very laws and freedom that we are fighting to defend." The amendments allowed Bush to continue—with more judicial oversight—his initially secret, widely decried warrantless-wiretapping program. It was a smart move by Obama, both as policy and as politics. FISA was obsolete well before 9/11; for one, its applicability depends on knowing in which country the surveillance "target" is located, and modern communication (cell phones, e-mail) often makes it difficult—or impossible—to know. The technology had changed, and so had the nature of terrorism, becoming more global and sophisticated. Bush should have worked with Congress from the beginning, and Obama was wise to back the compromise that finally passed.