A few observations on President Obama's national security speech. First, the highlights:
I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts – they undermined them, and that is why I ended them once and for all.
Thank you, President Obama, for forcefully rejecting, again, the idea that torture is either effective or necessary.
Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal "supermax" prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: "The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational."
Thank you. You probably should have had that discussion with Democratic Senators before they voted on funding for closing Guantanamo. It seems ridiculous to have to point out that the one thing American can effectively do is incarcerate people, but bucking up your quaking former colleagues in the Senate seems necessary.
First, when feasible, we will try those who have violated American criminal laws in federal courts – courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and juries of our citizens are tough enough to convict terrorists, and the record makes that clear. Ramzi Yousef tried to blow up the World Trade Center – he was convicted in our courts, and is serving a life sentence in U.S. prison. Zaccarias Moussaoui has been identified as the 20th 9/11 hijacker – he was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.
Now for the part where there still some questions.
The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.
Now, some have suggested that this represents a reversal on my part. They are wrong. In 2006, I did strongly oppose legislation proposed by the Bush Administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process and rights for the accused that could stand up on appeal. I did, however, support the use of military commissions to try detainees, provided there were several reforms. And those are the reforms that we are making.
Instead of using the flawed Commissions of the last seven years, my Administration is bringing our Commissions in line with the rule of law. The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms – among others – will make our Military Commissions a more credible and effective means of administering justice, and I will work with Congress and legal authorities across the political spectrum on legislation to ensure that these Commissions are fair, legitimate, and effective.
This we have to wait and see on. The Military Commissions Act President Obama opposed should be scrapped, and the legislation addressing restoring due process made an immediate priority for Congress.
Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.
I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.
As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.
These detainees should be reclassified as prisoners of war, bound by Geneva Conventions as the "clear, defensible and lawful standards" that we already have in place. But beyond that, there needs to be an accounting for why they "cannot be prosecuted for past crimes." That is a part of the accountability that the rule of law demands. You cannot at the same time reiterate "our values" and "our timeless ideals" and the "rule of law" and indefinitely, "preventively" detain people in prison with no charges or proof of any crime. The legal limbo that these men have existed in for the past eight years has to end.
On transparency, I still have a fundamental disagreement with our President, who said in regards to his efforts to block the release of photos: "However, it was my judgment – informed by my national security team – that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war." That horse left the barn in 2004. In light of what the rest of the world, and our enemies know about the treatment of detainees at American hands, our troops would be better served by an Obama administration that makes a very clean break with the past, that does not attempt to cover up the crimes of the past.
Along those same lines, my Administration is also confronting challenges to what is known as the "State Secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents – Republican and Democrat – for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government. That is why my Administration is nearing completion of a thorough review of this practice.
We plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the State Secrets privilege. We will not assert the privilege in court without first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General. Finally, each year we will voluntarily report to Congress when we have invoked the privilege and why, because there must be proper oversight of our actions.
Good news, and apparently a break with what the early Obama Justice Department has pursued in the Al Haramain, Jeppesen, and Jewel cases. State secrets has been overused on these cases in particularly, and unfortunately by the Obama as well as the Bush administration. Hopefully this speech marks a change in that approach, and they will abandon that line of defense, which at any rate has been rejected thus far by the courts.
And to the point where I have a very sharp debate with the President, and with the strawman he forwards when we come to the question of "relitigating" the past.
I recognize that many still have a strong desire to focus on the past. When it comes to the actions of the last eight years, some Americans are angry; others want to re-fight debates that have been settled, most clearly at the ballot box in November. And I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.
The election was not an end to the debate. We are not re-fighting any debate because the debate is ongoing, however much we would like to move on. The very fact that President Obama had to schedule this speech today to pre-empt Dick Cheney is proof of that. Anger is not the primary fuel for those of us who want to see accountability for what the previous administration did in our names. The fuel is a commitment to justice.
We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants – provided that it is a President with whom they agree.
To this, I have an extreme objection. That is a strawman and is nonsense. Accepting and forwarding the Republican frame that those who are arguing for accountability would sacrifice national security is damaging. That's accepting the canard that transparency aids and abets the enemy. On behalf of the ALCU, the CCR, the EFF, every organization that has worked diligently for the past eight years to let Americans know what the Bush administration did in our names, I reject the characterization.
Keeping this nation safe and upholding our Constitution is indeed, as President Obama concluded, our common purpose, and those of us who want to see. Part of that purpose, as Justice Brandeis would argue, is sunlight.