It is impossible for someone who has demagogued a complex problem to transform the overheated campaign cant into responsible principles of governance. When it comes to Guantánamo Bay and the wartime detention of alien enemy combatants there, demagoguery is exactly what candidate Barack Obama (and top aides like Eric Holder) engaged in. Now, as some of us forewarned, the inevitable damage control effort is underway.
Obama’s “Gee, this is harder than I thought” shuffle — which, in his trademark rhetorical habit of insulting the audience’s intelligence, is couched as if it were we, rather than he, who had failed to grasp the intricacies — was rolled out by the president-elect himself last weekend. The occasion was a soft-ball interview by ABC’s George Stephanopoulos, the latest of countless former Clintonites to lend the new administration a helping hand.
And now we have emerging news about an executive order Obama plans to issue on his first full day in office next week. Unfortunately, and reflective of his aforementioned rhetorical habit, what Obama is saying is meaningless where it is not wrong-headed.
Let’s start with the imminent Guantánamo “executive” order. It should be called a “symbolic” order since it will not actually execute much of anything. (The New York Times, as determined as Stephanopoulos to help Obama dig out of the hole he’s made, gives the game away: “[E]ven if the detention camp remains open for months, the decision to address Guantánamo on the day after his inauguration seemed intended to make a symbolic break with some of the most controversial policies of the Bush administration.”)
To rehearse some history that the incoming administration and its media fans would prefer to forget, Obama repeatedly called during the campaign for the immediate shuttering of Gitmo. We needed, he insisted, to “restore the right of habeas corpus” and show the world “we’re not a country that runs prisons which lock people away without ever telling them why they’re there or what they’re charged with.”
In a June speech, Holder — now Obama’s nominee for Attorney General, a position calling for good judgment and measured analysis — irresponsibly trashed Gitmo as “an international embarrassment.” Echoing his candidate’s hyperbole, the legal adviser framed the detention center as a netherworld where Bush “denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.”
But suddenly, with the new administration about to become politically accountable for U.S. national security, Gitmo isn’t such an embarrassment after all. Obama has finally figured out that it’s a lot less embarrassing than (a) releasing dangerous jihadists forthwith (to pick up right where they left off); (b) transferring them to the only countries willing to take them (i.e., countries where they’d be tortured, which is why President Bush didn’t do it); or (c) bringing them into the U.S. and giving them more due process (they already had plenty when Obama and Holder were implying they had none) but at the risk of seeing them ordered released here — as a federal judge has already directed in the case of 17 detainees. (On these Uighur Muslims, see NRO’s editorial here, and my article here.)
So — surprise, surprise! — Gitmo will remain open for business. Yes, the executive order will portentously restate Obama’s desire to close the facility at some future point (maybe a year from now, maybe more, who really knows?). That, however, is the same desire Bush officials have expressed for some time now. It was never that Bush didn’t want to close the place; it was that he couldn’t close it without imperiling lives.
Further, the incoming president will commit to a diplomatic effort to repatriate alleged combatants. Again, that is precisely what the outgoing president has been pursuing for years. That’s why more than 500 detainees (over two-thirds of those held at Gitmo at one time or another) have already been transferred out. The problem with the remaining 248 is not that Bush didn’t want to be rid of them. It is that other countries don’t want trained jihadists roaming their streets, either — the same cold reality that has inspired Obama himself to become less embarrassed by Gitmo.
At bottom, Obama has faltered because his premises are wrong. Consider the statements issued by his camp. An aide, for example, tells the Times that “the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists.” That’s like saying, “This hammer doesn’t seem to do tooth-extractions very well.”
The purpose of holding enemy combatants in wartime (which the Supreme Court has repeatedly validated, as recently as the 2004 Hamdi case) is not to prosecute them. It is to remove them from the battlefield and derive intelligence. Prosecution is incidental to those objectives. Because it is not the point of detention, it should come as no surprise that it will often not be the practical result of detention.
If your principal aim is “to successfully and swiftly prosecute” people, you do a thorough investigation and, like an FBI agent, meticulously document the collection of your evidence. You arrest suspects only when you have a prosecutable case, taking pains — like a New York City cop — to read them their Miranda rights so that any post-arrest statements they make will be admissible in court.
By contrast, if your first imperative in warfare detention is the right one — namely, to defeat the enemy and thus protect American lives, regardless of whether you will also be able to establish courtroom guilt — you end up apprehending many people who cannot be prosecuted at all, much less prosecuted “swiftly.”
Now, you can argue that we aren’t really a country at war — as if the “war on terror” were a mere slogan, like the “war on drugs.” That’s what a lot of Obama supporters think. But to believe that, you have to ignore a lot of reality, beginning with the inconvenient fact that we have troops in two theaters based on use-of-force authorizations that were overwhelmingly approved by Congress (to say nothing of the inconvenient fact that Obama, besides leaving troops in Iraq, intends to escalate combat forces in Afghanistan). But one way or the other, whether we are at war is the first matter to be settled.
If we are, then the people we capture must first be seen as combatants, not defendants. The capture of a combatant, usually carried out by military or intelligence personnel, is not analogous to a routine arrest made by the FBI or the NYPD. Let’s say you have good reason to suspect a person is an operative of the terrorist enemy you are fighting. It does not necessarily follow that you also have evidence that this combatant is guilty of a crime, much less one that can be proved “beyond a reasonable doubt” — the demanding standard applicable in court. Could the Gitmo legal framework be improved? Certainly, and I have argued as much. But it is clearly not a “failure” just because it hasn’t resulted in swift, successful trials. That was never its goal.
Relatedly, President-elect Obama explained to a very sympathetic Stephanopoulos his discovery that “evidence” showing detainees to be dangerous, though “true,” is often “tainted.” Again, that badly misstates the problem.
The information we are talking about is not properly thought of as evidence. It is primarily intelligence. While the two are not mutually exclusive, how you regard the information must be based on why you collected it in the first place. Here, the purpose was not for prosecuting criminal charges. It was for thwarting potential attacks, disrupting battlefield operations, and depleting the assets of an enemy we are confronting militarily (to repeat, based on full-throated congressional authorizations).
Now, sometimes you may be able to use that intelligence as evidence in court. But many times you won’t. It might, for example, be too sensitive: maybe it has been obtained from a foreign intelligence service on the solemn pledge that its substance would never be revealed; or maybe there is no practical way to expose it in court without unduly risking the compromise of sources or collection methods — whose concealment, because they are saving lives, is more valuable to the nation than winning an individual conviction would be.
Or maybe you can’t use the intelligence in court because it is derived from coerced statements. Here I do not seek to provoke the tired debate about “torture” (which is pointless — like arguing over religious beliefs). Instead, I use coerced as a term of art, referring simply to a statement the law does not deem sufficiently voluntary to justify its admission against the declarant at a trial.
In the civilian due process context, this can be very technical stuff: like a police officer’s failure to tell an arrested person that he has a right to counsel at public expense. That’s hardly waterboarding, but it may very well make the arrested person’s statements unusable to prove guilt at a trial — even though they may be very useful for such intelligence purposes as mapping a terrorist cell or interrupting an ongoing plot.
Contrary to Obama’s suggestion, information is not necessarily “tainted” just because the government is not permitted to use it in a prosecution. In military hostilities, there is nothing inappropriate about acquiring information outside normal law-enforcement protocols (like Miranda warnings). It is, in fact, what our military and intelligence services are supposed to do. It reflects the fundamental difference between investigating a criminal conspiracy and fighting a combatant force.
Guantánamo Bay is the first lesson, but it won’t be the last. President Obama can continue our current strategy of fighting radical Islam as a combatant force, which will entail some ancillary prosecutions but, more importantly, will unavoidably result in the apprehension of dangerous suspects who can’t be tried — certainly not “swiftly.” Or he can shift to a law-enforcement model and investigate radical Islam as a criminal enterprise: apprehending only those against whom there is evidence adequate to prove courtroom guilt — which will often mean after terrorists have struck and innocents have been killed.
He can’t do both.
That is our post-9/11 American reality. Despite the Left’s narrative, it was never a George W. Bush diversion. And no president can duck it. Voting “present” is no longer an option. When all the rhetoric melts away, President Obama will have to choose.
– National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).