Obama’s Cheney Dilemma

Obama will have to solve other thorny issues, such as what to do with enemy combatants held in military prisons overseas (not just at Gitmo, but locations like the prison at Bagram Air Base in Afghanistan). Since the war on terror has no end in sight, are they consigned to languish indefinitely? The Supreme Court ruled last June, in a case involving some Gitmo prisoners, that U.S. courts should review the cases of detainees who deny being enemy combatants. Does that mean summoning military commanders away from the battlefield to testify? In a case in 1950, Justice Robert Jackson wrote that it would be "difficult to devise a more effective fettering" of a field commander than to allow the very enemy he is trying to defeat to cause him to be called home to defend his actions in court. Obama might do well to heed Justice Jackson's words as he referees the debates that pop up in his own administration.

There will certainly be some. Obama has chosen as head of the Office of Legal Counsel—Jack Goldsmith's old job—Dawn Johnsen, an Indiana Law School professor and onetime abortion-rights lawyer who has used some fiery language to describe some Bush OLC memos ("shockingly flawed," "bogus," "outlandish"). But what will Johnsen advise when Congress starts summoning Obama White House officials to testify, as some committee chairman inevitably will? Will she be a strong advocate for claims of "executive privilege"? When she worked in the Clinton Justice Department, some complained, she had an undue penchant for saying "no" to the president.

Obama will discover, if he hasn't already, that presidents live in a gray area. They have great powers, but they have to be careful about how and when they use them. There is an executive order banning the president from assassinating political leaders abroad. But because it's an executive order—not a congressionally passed law—the president can change it. Indeed, President Clinton approved plans and efforts to kill—some would say assassinate—Osama bin Laden at his terror training camp in Afghanistan before 9/11. Long before "rendition" became a dirty word, Clinton (and, in some cases, Vice President Al Gore) approved dozens of renditions—CIA snatches of terror suspects abroad, turned over for detention or interrogation to foreign governments, many of them known to be human-rights abusers. What Bush and Cheney did was different less in kind than in degree—creating a vast program of renditions and secret prisons, as well as aggressively pursuing "targeted killings" of "high-value targets." Congressional leaders were informed, but some said that the briefings were cryptic.

National security is an unavoidably murky world. But it doesn't have to be quite so dark as Cheney et al. made it, loosing the dogs of war from some "undisclosed location." So much of the anger against the Bush administration could have been avoided if Bush had gone to Congress in the first place. In the frightening weeks and months after 9/11, it would have shouted through almost any extension of executive power the president wanted. But Cheney, especially, was contemptuous of congressional hand-wringers, and he (understandably, under the circumstances) felt the urge to move fast. He and his followers also cut out federal bureaucrats who might balk, including everyone working at the State Department and the national-security staff's own lawyer, John Bellinger.

Cheney's obsessive love of secrecy came back to haunt him. By trying to strengthen the presidency, he weakened it. By keeping Congress, the press and the people in the dark, the vice president virtually guaranteed a backlash. Obviously, some secrets must be kept, but history has shown again and again that excessive government secrecy backfires by breeding conspiracy theories and overreaction by thwarted lawmakers. Obama would do well just to level with the American people about what he is doing to protect their liberties—while keeping them safe.

© 2009