President Obama's advisers have called his recent decision to authorize the release of Justice Department interrogation memos one of the toughest of his first 100 days. But the truth is, that was nothing compared with the decisions he will have to make on a host of related national-security and legal issues in coming months.
Consider the question of the Justice Department's use of the so-called state-secrets privilege. The once rarely used legal privilege was invoked repeatedly by the Bush administration to shut down civil lawsuits that alleged torture and other abuses of the law by U.S. intelligence agencies. This is a hot-button issue for human-rights and civil-liberties groups. Many of those groups were outraged in February when, barely three weeks after Obama's inauguration, the new president's Justice Department adopted the same arguments in arguing for the dismissal of a lawsuit accusing Jeppesen Dataplan, a Boeing subsidiary, of assisting in the CIA's "extraordinary rendition" of terror suspects to countries that practice torture.
Obama's task got only more difficult on Tuesday, when a three-judge panel at the Ninth U.S. Court of Appeals in San Francisco voted unanimously to reject the Justice Department's argument. In essence, the court ruled it's not enough for the U.S. government to simply assert "It's classified, we can't talk about it" to get rid of a lawsuit alleging serious abuses by the intelligence community. The arguments made by the government would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," the court ruled. Instead, the court said, lawsuits like the one against Jeppesen can proceed—with decisions on what does or does not constitute a legitimate state secret being made by trial judges on a case-by-case basis. "This is a significant victory for those who would like to use civil litigation" to pry loose government secrets about rendition, torture and warrantless wiretapping," said Robert Chesney, a University of Texas law professor who specializes in national-security law.
The ruling has handed the Obama administration a difficult choice: Does it appeal and fight to uphold the sweeping Bush White House state-secrets position, possibly taking it all the way to the Supreme Court? Or does it retreat and try to find a middle ground along the lines of what the Ninth Circuit panel suggested? Chesney believes the court's ruling is likely to provoke another serious debate within the administration between liberals sympathetic to the human-rights community and intelligence-community professionals who worry that such lawsuits will hamstring the CIA. "We're reviewing the judges' decision," was all Tracy Schmaler, a Justice Department spokeswoman, would say about the Ninth Circuit ruling Tuesday. But the stakes on this one are high. And, just like the decision to release the interrogation memos, it could once again force Obama to settle a dispute among his top advisers.
There are even harder issues down the road—and the most difficult of all flow from the executive orders that Obama signed and released on the second day of his presidency. The new president pledged to shut down Guantánamo within a year. He also ordered a sweeping cabinet-level review of U.S. detention policies, including a case-by-case review of what exactly should be done with the more than 200 prisoners still at the facility in Cuba. But if anything is clear from the president's first 100 days, it's that these goals are only becoming harder to achieve, not easier.
The task force reviewing detention policy is facing a deadline of delivering a recommendation to Obama by late July. So far, no easy alternatives have been identified. No foreign governments have stepped forward to accept any large numbers of the detainees. (After Obama's recent trip to Europe, France offered to take a grand total of one.) The idea of trying substantial numbers of them as terrorists in U.S. courtrooms remains unrealistic: prosecutors and FBI officials who have examined the case files say that, in most cases, the evidence is too sketchy to sustain successful prosecutions. Never mind the nightmare, in a few high-profile cases, of having to explain the abusive treatment some were subjected to in U.S. custody.
While the administration is wrestling with all this, including trying to figure out if the Pentagon's controversial military-tribunal system can be revamped, Obama is getting steadily pummeled from his right. Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee, became the latest to invoke the specter of "dangerous terrorists" from Gitmo walking down the streets of U.S. cities if Obama ends up relocating large numbers of them to military prisons inside the United States. "The Obama administration cannot guarantee that these terrorists will not target American citizens," Smith thundered in his own assessment of Obama's first 100 days. "Closing Gitmo was a campaign promise, but … we can gain nothing by putting international image-building before American public safety."
If Obama does end up moving Gitmo prisoners into secure U.S. prisons like the naval brig at Charleston, S.C., or the Marine Corps brig at Camp Pendleton in California, it's far from clear why the public should fear that these "dangerous terrorists" would somehow escape and threaten the countryside. But such inevitable political crossfire will be yet another reason why, on these and myriad other national-security issues, the president's decisions are about to get a lot more painful.