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.)

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.

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.

Join the Discussion