President Obama wants you to know that nothing is ever his fault.
He gave a speech on national-security matters Thursday the gist of which was: George W. Bush left me a mess, and I’m doing the best I can to clean it up. A more forthright theme would have been: Radical Islam has thrust the United States into a defensive war, and it’s now my duty to protect the nation — despite legal complications created by left-wing lawyers, many of whom are now working in my administration.
President Obama described Bush’s counterterrorism program as an “ad hoc legal approach for fighting terrorism that was neither effective nor sustainable — a framework that failed to trust in our institutions, and that failed to use our values as a compass.” But here Obama must contend with himself as much as with Bush: His own Justice Department has argued, as the Bush Justice Department argued, that the nation is at war, that the laws of war therefore apply, and consequently that enemy combatants may be captured and detained without trial until the conclusion of hostilities.
In point of fact, the Bush administration’s counterterrorism campaign was anything but ad hoc. It was extraordinarily effective, and it is entirely sustainable — which President Obama has shown by sustaining its major elements. Detention of enemy combatants has been a staple of every war the United States has fought, which is why the Supreme Court reaffirmed the practice in the 2004 Hamdi case, even though the combatant at issue was an American citizen. The practice of trying combatants before military commissions traces back to General Washington’s precedent in the Revolutionary War; and though today’s tribunals were originally authorized by the commander-in-chief, as they traditionally have been, their use was reauthorized by Congress in 2006, without material change, in response to a lawless Supreme Court decision that twisted both statutes and the Geneva Conventions beyond recognition.
Bush’s counterterrorism work can be regarded as ineffective only from the standpoint of the ACLU, whose metric is the quantum of due process accorded to terrorists who recognize no law or treaty. From a sensible point of view, the measure of success is the incidence of terrorist attacks — and we have not had one in eight years. By adopting a war-fighting paradigm (the paradigm on which President Obama must rely, lest his assassinations in Pakistan be deemed a violation of international law), President Bush expanded geometrically our intelligence on the enemy, decimated and dislocated the top tiers of al-Qaeda’s hierarchy, and killed and captured thousands of jihadists. At the same time, enforcing laws enacted in 1996 to enable the government to disrupt terrorist cells before their plots could come to fruition, the Bush Justice Department assembled an impressive string of convictions for terrorist conspiracy and financing.
True to his September 10 philosophy, President Obama declared on Thursday that the civilian courts were “tough enough” to convict terrorists. That has never been the question. The problems are that the criminal-justice system cannot apprehend many terrorists (only 29 terrorists, mostly low-level, were prosecuted during the eight years of attacks leading up to 9/11), and that the few trials it manages become intelligence troves for the many thousands of terrorists remaining at large. Bush’s counterterrorism policies, particularly as supplemented by Congress in the Detainee Treatment Act of 2005 and the above-mentioned Military Commissions Act of 2006, afforded captured alien combatants an unprecedented degree of due process — far beyond that accorded at the Nuremberg Tribunals that President Obama is fond of citing as a testament to the “rule of law.” This due process includes a right of appeal to the civilian federal courts (which was expanded in 2008 by the Supreme Court’s wrongheaded Boumediene decision).
So it was strange to hear President Obama on Thursday, castigating the military-commission system that he has chosen to revive with only cosmetic changes. It is true, as the president points out, that the commission system has convicted only three terrorists of war crimes, but this is in no small part because the trials have been endlessly delayed by legal maneuvering from some of the very lawyers who now hold important positions in Obama’s administration. Deputy Solicitor General Neal Katyal, for example, represented Osama bin Laden’s confidant Salim Hamdan in the Supreme Court case that derailed the commissions until Congress reversed the Court. Harold Koh, the attorney Obama has nominated to be State Department legal adviser, filed an amicus brief in behalf of the detainees in the same case. Attorney General Eric Holder’s old firm has represented at least 18 enemy combatants. Because of the thick web of relationships between terrorism suspects, Holder, and other like-minded lawyers he has recruited, the Justice Department has been forced to set up elaborate protocols for recusing prosecutors, including the attorney general himself, from various national-security cases.
And it was President Obama himself who delayed commissions for 21 terrorists back in January — some of whose trials were imminent. But instead of reinstating those proceedings, the president is delaying them still further, while his administration makes trivial procedural tweaks that will allow him to pretend his policies constitute a real departure from those of his predecessor.
The president insisted in his speech that the Guantanamo Bay detention camp and enhanced interrogation techniques (which he characteristically referred to as “torture,” a term both legally inaccurate and morally obtuse) increased terrorist recruitment. In fact the leading driver of terrorist recruitment is successful terrorist attacks. That is what convinces the fence-sitters that radical Islam can win, and that Osama bin Laden is correct when he argues that the United States is a weak horse that will retreat when things get tough enough. The counterterrorism policies of the Bush administration prevented new terrorist attacks and assured the world’s bin Ladens that the United States was committed to their defeat. We hope that assurance still holds; if it does, it is only because President Obama, for all his unseemly disparagement of his predecessor, has picked up the tools George W. Bush left him and made them his own.