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Clarifying the war on terror

Obama should move away from abuses of the Bush era by adopting clear policies on four fronts.

March 08, 2009

Asked about a possible investigation of the excesses of the Bush administration's war on terror, President Obama said, "I'm more interested in looking forward than I am in looking backwards." That may be harder after new revelations of affronts to the rule of law during the Bush years. Obama is unable to undo those abuses, but he can do more to assure the nation that he has repudiated them.

On Monday, the Justice Department released a series of memos that provided legal cover for actual and potential violations of human rights and civil liberties -- not only of suspected foreign terrorists but of U.S. citizens. One memo, for instance, memorably asserted that "1st Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." The revelations shocked constitutional scholars of all ideologies and served as a stunning illustration of how far the Bush administration was willing to twist American laws and traditions in the prosecution of its misbegotten war. As if that weren't enough, the government also announced Monday that the CIA destroyed 92 videotapes documenting the interrogation and confinement of two Al Qaeda members who were subjected to waterboarding.

These disclosures renewed calls for a South Africa-style "truth commission" to investigate Bush-era abuses, even though the Senate Intelligence Committee is planning a similar probe. It will be easier for Obama to oppose a truth commission if he makes it clear that the lawlessness of the Bush administration is history.

Obama and other administration officials have taken important steps in that direction. The president has promised that the Guantanamo Bay detention center will be closed within a year. Atty. Gen. Eric H. Holder Jr. -- differentiating himself from his predecessor, Michael B. Mukasey -- has called waterboarding torture. Obama has issued orders closing secret CIA prisons and requiring the agency's interrogators to abide by humanitarian safeguards observed by their military counterparts.

Yet the administration also has engaged in some ominous equivocation. For example, Obama's executive order required CIA interrogators to follow the Army Field Manual, which prohibits tactics such as waterboarding, extended solitary confinement or the use of dogs for intimidation. Simultaneously, however, he created a task force to review the manual's guidelines "to determine whether different or additional guidance is necessary for the CIA."

Equally disappointing was the Justice Department's decision to reaffirm the Bush administration's use of the "state secrets" privilege to try to thwart lawsuits arising from Bush anti- terror policies. Last month, in a lawsuit accusing a flight services firm of transporting suspected terrorists to foreign countries where they were tortured, a government lawyer told an appeals court that the Obama administration was taking "exactly" the same position propounded by the Bush administration.

If he wants to close the chapter on the previous administration's excesses, Obama needs to adopt clear policies in the following areas.

* Interrogation. Obama and his advisors have been intimidated by the argument that interrogation measures such as waterboarding must remain an option in the event that a suspected terrorist in captivity knows about an impending attack. Confronted with that hoary hypothetical at his Senate confirmation hearings, CIA Director-designate Leon E. Panetta said: "If we had a ticking-bomb situation and obviously whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need." Panetta and Obama must make clear that the administration isn't reserving the right to create a loophole for torture. That assurance will be more credible if Obama makes permanent his order that CIA interrogators abide by the Army Field Manual.

* Due process for detainees. Obama has said that future trials for detainees might be transferred to civilian courts, but he reserved the right to employ a modified version of the flawed military commissions established during the Bush administration. To its credit, the new administration last week moved the prosecution of Ali Saleh Kahlah al-Marri, a legal U.S. resident accused of being a "sleeper agent" for Al Qaeda who is imprisoned in South Carolina, to the civilian justice system. But in doing so, it successfully asked the high court not to hear al-Marri's challenge to his confinement as an enemy combatant. This cautious approach may reflect Obama's desire to be able to detain dangerous terrorists even if they haven't been convicted of crimes. That position would be more palatable if he moved most accused foreign terrorists -- and any legal U.S. resident -- to civilian courts.

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