Memo to the Next President

Sunday, October 12, 2008

Don’t count on the next president to undo George W. Bush’s legal policies in the war on terrorism. Both Barack Obama and John McCain have pledged to close the detention camp at Guantánamo Bay, pay greater respect to law, tamp down unilateral presidential powers, and enhance America’s stature abroad. But many controversial Bush administration policies have already been revised to satisfy congressional and judicial critics. And after receiving a few harrowing threat briefings and absorbing the awesome personal responsibility of keeping Americans safe, the new commander in chief won’t rush to eliminate the Bush program as it stands in January. He will realize that any legal climbdown that is later perceived as even indirectly responsible for an attack would be a personal and political disaster.

Aggressive counterterrorism policies will thus continue into the next presidency. They will, however, be wrapped in more attractive packaging and adjusted in ways appropriate for an indefinite conflict. Here are some suggestions for how to achieve these goals.

BOOST TRUST AND CREDIBILITY

Many people accuse the Bush administration of exaggerating the terror threat for political gain, but the truth is nearer the opposite: the Bush administration frets about homeland attacks more than it lets on. Yet as 9/11 recedes from national memory, the public worries less about the terror threat it cannot see and more about aggressive powers and policies whose purpose it cannot fully appreciate. This growing gap between the government’s view of the terror threat and the public’s is an enormous challenge for any president. “Public sentiment is everything,” Abraham Lincoln once said. “With public sentiment nothing can fail; without it, nothing can succeed.”

The next government can narrow this credibility gap by fighting the intelligence community’s notorious tendency to overclassify, and by making more threat information public so the nation can better understand what it faces.

But more information from even a rhetorically gifted president will not be enough. The president’s words are more credible when echoed by officials who do not share all of his political aims. When Franklin D. Roosevelt began to prepare the nation for war in the spring of 1940, he appointed Henry Stimson and Frank Knox—Republicans who rabidly opposed his New Deal—as secretaries of War and Navy, respectively. These men were invaluable in convincing Congress and the nation that FDR was acting in good faith by taking aggressive steps against the growing but underappreciated German threat in the year before Pearl Harbor. The next president should follow FDR’s lead by filling important national security positions with people from the other party.

WORK WITH CONGRESS

The next president can further enhance the credibility of war-on-terrorism policies by getting Congress—especially political opponents in Congress— on board. The president can share more national security data with Congress than with the public. When Congress supports aggressive policies based on this information, the nation is more likely to accept that the president is acting in good faith. When dozens of congressional Democrats joined Republicans earlier this year to give a weakened president unprecedented surveillance powers, it became much harder for critics to maintain that the terror threat did not warrant such broad powers.

As 9/11 fades into memory, the public worries less about the terror threat it cannot see and more about aggressive powers and policies whose purpose it cannot fully appreciate.

When the president presses Congress to take a stand on war-on-terrorism issues, he and the nation receive other benefits as well. Forcing Congress to act spreads responsibility for policies when things go bad, as John Kerry learned when he tried to run away from his 2002 Iraq vote in the 2004 presidential election. Congressional debates educate the country about the nature and stakes of the terror threat. And congressional approval increases judicial support that will be crucial in the long war. The Supreme Court’s main objection to President Bush’s counterterrorism policies has been that he has acted without or contrary to Congress. But the court almost always goes along with national security policies supported by both political branches.

There is no guarantee, of course, that the next president can convince Congress about the terror threat or that Congress will not play politics with the terrorism issue. But the politics of terrorism usually cut in favor of aggressive action, and a president who genuinely engages Congress can almost always get what he needs for national security.

CLOSE GUANTÁNAMO

There were two justifications for using Guantánamo as a detention facility. The first was to minimize judicial scrutiny. The courts have chipped away at this rationale for years, eliminating it altogether when the Supreme Court announced in June that U.S. constitutional protections extend to the base.

Forcing Congress to act spreads responsibility for policies when things go bad, and congressional debates educate the country about the nature and stakes of the terror threat.

The second justification for Guantánamo was to avoid frightening and possibly endangering U.S. citizens. This justification still has force but is outweighed by the fact that Guantánamo is now widely viewed—justifiably or not—as a damaging symbol of U.S. mistakes in the war on terrorism.

One should not, however, underestimate the political difficulty of putting Guantánamo out of business. It will be interesting to watch the dance among states clamoring not to become home to Khalid Sheikh Mohammed and his friends.

ESTABLISH A NATIONAL SECURITY COURT

Closing Guantánamo leads to the question of what should be done with the 100–150 remaining detainees whom no responsible president will release, as well as any future detainees. Trial by military commission is not the solution. The politically damaged commissions are disliked by the same military that runs them, and they will be subject to legal and political challenges for a decade. The next government should ditch commissions altogether and place the incapacitation of terrorists under the supervision of a national security court composed of federal judges with life tenure.

The national security court would have two jobs: trying terrorists and reviewing the detention of those who cannot be tried. Trials could be governed by modified rules of evidence, secrecy, and security that are constitutionally valid but not currently available in ordinary criminal trials. National security court trials would be more legitimate than military trials because they would be run by independent Article III judges rather than military judges. And they would attract fewer legal challenges because, unlike military commissions, most of the procedural and substantive rules they would employ would be time tested.

Don’t underestimate the political difficulty of putting Guantánamo out of business. It will be interesting to watch states clamoring not to become home to Khalid Sheikh Mohammed and his friends.

But criminal trials are not always feasible. Sometimes the government has credible information that a detainee is dangerous but cannot prove a crime beyond a reasonable doubt with unclassified information in a manner consistent with civilian standards of justice, even as modified. When the government certifies that this is so, terrorists should be detained pursuant to a system of preventive detention akin to the one now in place in Guantánamo but supervised by the national security court. Congress should ensure that this system applies to citizen and noncitizen detainees alike and has procedural protections appropriate for indefinite detention, including appointed attorneys with proper security clearances, access to all information the government has on the detainee, and ongoing review to ensure that the detainee still presents a threat.

CREATE AN INTERNATIONAL FRAMEWORK WITH ALLIES

Last spring, John McCain called for a “new international understanding on the disposition of dangerous detainees under our control.” This is a good idea, not because of a squishy commitment to internationalism but because an international consensus on how to treat detainees would foster deeper international cooperation crucial in thwarting terrorists.

We are surprisingly close to putting policy issues in the war on terrorism on a sound legal footing appropriate for the long term.

To achieve this goal, the United States must stop talking about which international laws do not govern the detention of terrorists and start talking about which ones do. The Supreme Court took a step in this direction when it determined two years ago that Common Article 3 of the Geneva Conventions—which provides minimal and rather abstract rights to enemy combatants—governs the conflict with Al-Qaeda. The United States can flesh out the meaning of Common Article 3 by drawing on some aspects of Article 75 of the First 1977 Protocol to the Geneva Conventions, which provides more elaborate minimum-warfare standards. The United States has rightly opposed ratifying the protocol in all its details for fear of legitimizing terrorism, and Article 75 itself contains vague provisions that in the wrong hands might be viewed as too restrictive. But these uncertainties are also an opportunity for the United States to draw on higher international standards to flesh out the meaning of Common Article 3 and at the same time shape those standards to its own conception of appropriate justice.

There is more room for international agreement on these issues than one might think. The foreign affairs committee of the House of Commons recently concluded that the Geneva Conventions “lack clarity and are out of date” and urged the British government to “update the conventions in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees.” The German foreign minister and an important European security organization have made similar recommendations. And last year, John Bellinger—the State Department legal adviser who has worked hard to bridge differences with allies on these topics—convened an important meeting at West Point with legal advisers from seven allied nations to forge consensus on these issues. The next president, with fresh goodwill, should build on these developments.

FIX INTERROGATION

In 2005 and 2006, Congress went along with a two-track approach to interrogating terrorists suspected of having information crucial to stopping an attack. It held the military to a very high standard but allowed the CIA to maintain a program of classified interrogation techniques that must not amount to torture or cruel, inhuman, humiliating, or degrading treatment. Last spring, Congress changed its mind and tried to extend the Defense Department rules to the CIA, but President Bush vetoed the bill.

The way forward on this issue builds on a proposal by former president Bill Clinton. Congress should require the next president to make a classified finding—akin to findings used for covert operations—giving reasons why aggressive techniques are required. This finding and the subsequent interrogations should be reviewed for legality and effectiveness by an internal executive-branch body and reported to the congressional intelligence committees. This approach would maintain the option of using lawful interrogation techniques that might stave off a crisis and at the same time address legitimate concerns about accountability, legal compliance, and abuse.

We are surprisingly close to putting policy issues in the war on terrorism on a sound legal footing appropriate for the long term. The most important issue for the next administration to resolve is the system for incapacitating terrorists. Beyond that, what the next president most needs to fix are appearances and processes in dealing with the public, Congress, and the world. This is no small thing. A major lesson of the past seven years is how central these soft factors are to the successful exercise of the hard power needed to defeat the terror threat.