I have instructed my subordinates that suspected Al Qaeda terrorists captured anywhere in the world should be interrogated extensively — with safeguards against abuse — before any Miranda warnings or access to lawyers. This approach is legal and it may save lives. Although the specific evidence obtained might in some cases be inadmissible in court, the suspects will be prosecuted based on other evidence once interrogation is completed.
This is a major departure from the established policy of all past administrations, of the FBI, and until now of my administration. Nobody should fault those who diligently followed established policy in handling the suspect in the Christmas Day airplane bombing attempt. But I have decided that my new policy is more likely to obtain critical intelligence from captured terrorists.
President Obama should say something like this, something fairly dramatic, to counter the surging Republican campaign to brand him soft on terrorism.
He already faces a bipartisan push to block civilian trials of Khalid Shaikh Mohammed and other 9/11 conspirators and to kill his plan to close the Guantanamo Bay prison camp. Whether he wins or loses those battles, he risks permanent political damage unless he dispels the soft-on-terrorism charge.
The charge is unfair. But it is gaining traction because of two glaring mistakes.
One was the decision by Attorney General Eric Holder’s Justice Department to advise Umar Farouk Abdulmutallab after only 50 minutes of interrogation that he had a right to stop talking — which he did. This blunder was compounded by Homeland Security Secretary Janet Napolitano’s fantasy that "the system worked," by Obama’s fatuous assertion that Abdulmutallab was "an isolated extremist," and by Holder’s unconvincing defense of the initial mistake in a five-page letter to Senate Republican Leader Mitch McConnell on February 3.
Dick Cheney has it backward. The problem with President Obama’s counter-terrorism policy isn’t its (rather limited) divergence from the Bush-Cheney approach. The problem is Obama’s emulation of one of the biggest Bush-Cheney mistakes.
That is relying too much on unilateral presidential power and judicial improvisation rather than seeking new legislation — as two notable judicial opinions have recently urged — to legitimize and regulate the detention and interrogation of terrorism suspects outside the ordinary criminal process.
The case of the Nigerian who authorities say tried to blow up an airliner over Detroit on Christmas Day has helped expose two reasons why this presidential unilateralism is intolerable.
First, treating terrorism suspects captured in America as ordinary criminal defendants from the moment of arrest unnecessarily rules out aggressive, incommunicado interrogation that might disrupt other plots and thus save lives. New legislation could legitimize questioning such people without lawyers for a limited period (maybe 10 days, or longer in exceptional cases) before launching the criminal process.
Second, Obama’s January 5 suspension of the transfer of Guantanamo Bay prisoners to Yemen — where the Christmas bombing plot was hatched — is the latest sign that he will perpetuate for years the George W. Bush-created regime of long-term detention without trial. Obama acted even though he has recognized this approach to be inconsistent with "our values and our Constitution" unless legitimized by careful congressional, as well as judicial, oversight.
The attacks by Cheney and other conservative critics on the administration’s handling of the case of would-be bomber Umar Farouk Abdulmutallab focus on the decision to treat him as an ordinary criminal defendant, with the usual Miranda rights, lawyers counseling silence, and all the rest.
President Obama is rightly concerned that our health care system leaves many Americans without insurance when they need it most and is hugely inefficient, with costs soaring toward crisis proportions unless something changes.
Few of Obama’s Republican critics have signed on to any credible plan of their own to address these inexorably growing problems. Some have reneged on earlier support for mandating that individuals buy insurance. And many hurl demagogic accusations that the president would usher in "death panels" and overheated alarums ("You lie!") about peripheral issues such as whether illegal immigrants or abortion-seekers would benefit.
As for voters, most seem satisfied with their own health care — still the world’s best in important ways — and unwilling either to pay more to help less fortunate people or make even small sacrifices to control costs. They also seem oblivious to the real problem underlying the "death panel" demagogy, which is the unavoidable need to hold down the 30 percent of Medicare spending that goes to sometimes-unwanted, often-not-very-beneficial treatments for chronically ill patients in the last two years of life.
So it would be unrealistic to expect complete candor from any president about the costs and risks of extending health insurance to 30 million more Americans. If Obama can meet the truthfulness test applied by Huckleberry Finn to his creator Mark Twain — "There was things which he stretched, but mainly he told the truth" — that would be good enough for me.
But can he? Despite Obama’s good intentions, I can’t help thinking that the deviations from truth-telling identified by various critics go to the heart of his plan, compromise his credibility, and could accelerate health-cost inflation with ruinous consequences for the economy. Examples:
Perhaps the most remarkable exchange during the Senate Judiciary Committee’s hearing came on Tuesday, when President Obama’s nominee flatly repudiated his judicial philosophy.
This is all the more striking because it’s a good bet that the Obama team knew it was coming. White House lawyers spent days prepping Judge Sonia Sotomayor for the hearings, and it was quite predictable that she would be asked about Obama’s "empathy" criterion for choosing nominees.
Indeed, I wonder whether the Obama team itself may even have suggested to the nominee that rejecting the Obama philosophy — as well as disavowing the apparent meaning of her years of "wise Latina woman" speeches — would be the best way out of a tight spot, for reasons explained below.
Sotomayor’s three days of "I just apply law to facts" testimony may evidence a tacit recognition by smart liberals such as Obama and Sotomayor that the American public is either too unsophisticated or too sensible — take your pick — to buy the undiluted liberal judicial philosophy that pervades her speeches, and his.
The predictable question came from Sen. Jon Kyl, R-Ariz., who asked whether Judge Sotomayor agreed with Obama’s repeated assertions that "the critical ingredient in [hard] cases is supplied by what is in the judge’s heart," including empathy for the powerless.
Sotomayor’s stunning response: "No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is, judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law."
Wow. Has anyone ever before delivered such a sharp rebuff to the president who nominated her? And on national television, no less?
Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court’s conservatives are as activist as the liberals, especially on racial issues.
But conservatives and like-minded centrists can win the political debate if they focus not on buzzwords but on in-depth, civil discourse about the very big issue on which Sotomayor and her liberal supporters are most at odds — and the conservative justices most in tune — with the vast majority of Americans.
That issue is racially preferential affirmative action. By this, I mean the many forms of supposedly benign discrimination against whites and Asians that have been engineered over the past 45 years to advance blacks and Hispanics in the workforce, in college admissions, and in government contracting.
The long-standing public disapproval of such preferences was documented yet again by a major Quinnipiac University poll released on June 3, showing that American voters, by a lopsided margin, want them abolished.
Initiated in the 1960s as a temporary expedient, racial preferences may well become permanent if a Justice Sotomayor is eventually joined on the Court by a like-minded successor to one of the Court’s conservatives. (The justice Sotomayor would replace, David Souter, also supports preferences.)
The now-famous New Haven, Conn., firefighter case is a perfect symbol of how the sort of preferences she supports can operate as raw racial discrimination.
As has occurred with dispiriting regularity in recent decades, the current debate over filling a vacancy on the Supreme Court has been marred — already! — by a considerable dose of demagogy and false factual claims. It would be nice to see the media truth-squadding such stuff, without the usual double standards.
Take, for example, the wildly overheated denunciations of Judge Sonia Sotomayor by Newt Gingrich and Rush Limbaugh, on the one hand, and the demonstrably untrue assertions that President Obama has repeatedly made about the Supreme Court’s 2007 ruling against the now-famous Lilly Ledbetter, on the other.
Limbaugh has denounced Sotomayor as a "reverse racist" and a "hack" — adding that "Obama is the greatest living example of a reverse racist, and now he’s appointed one." Gingrich has also called her a racist and demanded that she withdraw.
"Hack?" Judge Sotomayor’s legal opinions may not be the stuff of brilliance, as some liberal critics have complained. But she is an accomplished jurist with many admirers and a stellar academic record at Princeton and Yale law School. She is also an inspiring, up-from-modest-origins American-dream life story.
"Racist"? Limbaugh and Gingrich based this imprecation on Sotomayor’s assertion in a 2001 speech that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."
I, too, have criticized that assertion. But in the apt words of former Karl Rove aide Peter Wehner, now of the Ethics and Public Policy Center:
Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:
What matters on the Supreme Court is those 5 percent of cases that are truly difficult… In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or… whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" — and to all others — not to mention the constitutional command to provide all persons "the equal protection of the laws."
Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court’s progressive wing.
Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.
The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by "judicial activism."
A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.
This is not to suggest that the president will pick a centrist, let alone a conservative. Filling moderately left-of-center Justice David Souter’s seat with anyone seen as more centrist would be a stunning abandonment of Obama’s campaign stance that would infuriate his liberal base.
But nominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics. And although some of Obama’s past statements are seen by critics as a formula for judicial activism, he has also shown awareness of its perils.
As a matter of policy, consider Obama’s most important responsibility: protecting our national security from jihadist terrorism and other threats.
Before 9/11, judges had no power to entertain writs of habeas corpus (petitions for release) by enemy fighters taken into custody by U.S. forces overseas.
Justice Robert Jackson spelled out this rule in a landmark 1950 decision, Johnson v. Eisentrager: "We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."
That might still be the law had the Bush administration given the hundreds of suspected "enemy combatants" whom it sent to its Guantanamo Bay prison camp in and after 2002 a fair opportunity to show that they were innocents seized and held by mistake, as many apparently were, an almost inevitable feature of this war against terrorists who masquerade as civilians.
But instead, the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.
These bad policies have led to muddled law. Understandably offended by President Bush’s approach and the black eye that it was giving America overseas, the Supreme Court deep-sixed Johnson v. Eisentrager and ruled for detainees in three cases culminating in a 5-4 decision last June asserting broad judicial power to hear petitions for release from Guantanamo.
In the process, the justices struck down parts of two recent acts of Congress and assumed unprecedented, open-ended, and potentially disruptive power to oversee the elected branches’ conduct of war. They left it to the U.S. District and Appeals Courts in the District of Columbia to make up detailed rules on an ad hoc basis.
After many months of adoring media coverage and Democratic triumphalism, President Obama is now getting pasted by carnivorous columnists, angry activists, and House hotheads for every bow to bipartisanship, every deviation from liberal orthodoxy, and every tax-deficient nominee.
The problem is not that Obama is doing a bad job. For a new president beset with the most daunting combination of economic and national security nightmares in many decades, and with a recent run of bad luck, he’s doing his job quite well. Shepherding the $789 billion economic stimulus bill through the ideologically polarized Congress was no small feat. And for a man seeking to overcome determined Republican opposition without demonizing his adversaries, he hit the right notes (if too long-windedly) in his first prime-time presidential press conference on Monday.
The president’s political problem is that while he tries desperately to steer the storm-tossed ship of state off the rocks, partisans in both parties are reflexively acting out "a lot of bad habits built up here in Washington," as Obama told the press.
He stuck, despite a slip or two into tough rhetoric, to his conviction that fighting for his policy agenda and rejecting "the failed theories of the last eight years" does not require ascribing base motives to the opposition, disavowing any effort at compromise, or giving up on what some call his promise of "post-partisanship."
Obama also understands that a few party-line votes driven by clashing economic philosophies do not spell the doom of post-partisanship, which boils down to seeking common ground when possible and treating political adversaries with respect. Obama’s extraordinary overtures to Republicans, he explained, "were not designed simply to get some short-term votes. They were designed to try to build up some trust over time."