Obama vs. Obama

Is he a lawyer too cautious in his approach to terror? Or is he a fighter who has failed to restore the rule of law? Yes.

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Dick Cheney has said that President Obama is "trying to pretend that we are not at war" with terrorists. Tell that to the terrorists. According to data compiled by Peter Bergen and Katherine Tiedemann for the New America Foundation, the Obama administration in less than a year in office has carried out more than 50 Predator strikes against terrorist targets. That's more than George W. Bush did during his entire presidency. At the same time, liberals accuse Obama of betraying his ideals and his promises to restore the rule of law. This accusation is equally wrongheaded. Obama has made—or more precisely has permitted his attorney general, Eric Holder, to make—a series of decisions that weigh proper judicial procedure and the appearance of justice over risks to national security.

Obama's split-the-difference approach on terrorism is consistent with what we have learned about the president in his first year. He is a realist and compromiser who seeks the middle way, not a liberal ideologue. His approach is judged highly by most counterterror professionals, who understand that the most effective policies are often the least palatable politically. Where Obama has stumbled, though, is when he has allowed politics or a legalistic approach to get in the way of common sense about public safety. While the rantings from the right and from the left should be rejected or discounted, Obama can be a little too Solomonic in his judgment when it comes to balancing the rule of law and protecting the homeland. In some cases, rather than relying on current laws, he should be working harder to change them.

On the talk shows, and in less stark fashion within the councils of power, there are competing big-picture approaches to the threat of terrorism. Think of two mindsets: that of a warrior and that of a lawyer. Warriors can be primitive and atavistic—which is to say brutal. Reflective warriors have a tragic sensibility. They know that in war, things go wrong and the innocent get hurt no matter how great the effort to spare civilians and limit collateral damage. War is (or should be) a matter of national survival, of accepting casualties and the infliction of suffering to avoid annihilation. ("Annihilation" in the context of terror means a nuclear bomb going off in a U.S. city, which would change the American way of life as well as cause hundreds of thousands of deaths.) Lawyers, by contrast, are concerned with fair procedure and individual rights. The ethos is summarized by the saying "Better to let a hundred guilty go free than to convict one innocent man."

Obama, on balance, falls into the lawyer camp. A Harvard Law grad who taught constitutional law at the University of Chicago, he is steeped in a tradition that privileges the Bill of Rights over the crude or arbitrary exercise of power. He is also a considered analytical thinker. Lawyers, at their best, weigh the equities and reject one-sided arguments. In his reasoning and pronouncements, Obama has shown an appreciation for shades of gray.

In their desire to avoid inflammatory language—referring to terrorism as "man-caused disaster" and the like—Obama's lieutenants have from time to time tried too hard. Still, Obama's greatest contribution so far to national security policy has been tonal. He has softened the Bush-era rhetoric and turned down the volume on what a former CIA chieftain once called "the Mighty Wurlitzer," a mythical organ that blasts out the music of American salvation and superiority. Obama is keenly sensitive to appearances. He has always known that speaking of a "crusade" and "Islamofascism" was a good way to make jihadists out of Muslim teenagers, and that the American prison at Guantánamo was Al Qaeda's best recruiting tool.

Obama was hardly alone or unusual in these views. Even President Bush recognized that Guantánamo was doing more harm than good, and his administration had begun to free detainees and take steps toward closing the prison. Bush was simply too discredited to gain much PR benefit from such moves.

[SNIP]

Conservatives who complain that Abdulmutallab should have been treated like an illegal combatant and thrown in a military brig overlook an important point. Under the existing system of military commissions, detainees have a right to a lawyer, just like ordinary criminal suspects. So he would have been silenced either way.  What we really need is a new system that looks at the whole difficult question of preventive detention. While the talking heads shout and cast blame, someone in Congress or the administration needs to find a solution that accommodates the needs of intelligence gathering and the rule of law. Obama, the law professor, could probably write such a law himself.  (Emphasis added)

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