November 30, 2008
By JONATHAN MAHLER
WASHINGTON — Early last Tuesday morning, a military charter plane left the airstrip at Guantánamo Bay for Sana, Yemen, carrying Osama bin Laden’s former driver, Salim Hamdan. Once the Bush administration’s poster boy for the war on terror — the first defendant in America’s first military tribunals since World War II — Mr. Hamdan will spend less than a month in a Yemeni prison before returning to his family in Sana, having been acquitted by a jury of United States military officers of the most serious charge brought against him, conspiracy to support terrorism.
The turn of events underscores the central challenge President Obama will face as he begins to define his own approach to fighting terrorism — and the imperative for him to adopt a new, hybrid plan, one that blends elements of both traditional military conflict and criminal justice.
Until now, much of the debate over how best to battle terrorism has centered on the two prevailing — and conflicting — paradigms: Is it a war or a criminal action? The Hamdan case highlights the limitations of such binary thinking. As the verdict in his tribunal this summer made clear, Mr. Hamdan was not a criminal conspirator in the classic sense. Yet, as an aide to the world’s most dangerous terrorist, neither was he a conventional prisoner of war who had simply been captured in the act of defending his nation and was therefore essentially free of guilt.
So how should Americans think about Mr. Hamdan? More broadly, how should they think about the fight against terrorism?
The problems with the war paradigm are by now familiar. Because the war on terror is unlike any other the United States has waged, traditional wartime policies and mechanisms have made for an awkward fit, in some instances undermining efforts to defeat terrorism. The traditional approach to dealing with captured combatants — holding them until the end of hostilities to prevent them from returning to the battlefield — is untenable in a war that could last for generations.
If you treat the fight against terrorism as a war, it’s hard to get around the argument that it’s a war without boundaries; a terrorist could be hiding anywhere. Yet by asserting the right to scoop up suspected terrorists in other sovereign nations and indefinitely detain and interrogate them without hearings or trials, the administration complicated its efforts to build an international coalition against terrorism.
“The war-against-Al-Qaeda paradigm put us in a position where our legal authorities to detain and interrogate didn’t match up with those of our allies, so we ended up building a system that’s often rejected as strategically unsound and legally suspect by even our closest allies,” says Matthew Waxman, a law professor at Columbia who worked on detainee issues in the Bush administration.
Perhaps the most problematic consequence of the war paradigm, though, is that it gave the president enormous powers — as commander in chief — to determine how to detain and interrogate captured combatants. It was the use, or abuse, of those powers that produced the Bush administration’s string of historic rebukes at the Supreme Court, starting in 2004 when the justices ruled in Rasul v. Bush that the president had to afford the Guantánamo detainees some due process.
Some critics of President Bush are now urging President-elect Obama to abandon the war paradigm in favor of a pure criminal-justice approach, which is to say, either subject captured combatants to criminal trials or let them go. This will almost certainly not happen.
Mr. Obama may be more inclined to prosecute suspected terrorists in the federal courts than Mr. Bush has been, and he may even avoid referring to the battle against terrorism as a “war.” But ceding the military paradigm altogether would severely limit his ability to fight terrorism. On a practical level, it would prevent him from operating in a zone like the tribal areas of Pakistan, where American law does not reach.
“If you seriously dialed it back to the criminal-justice apparatus you will paralyze the executive branch’s ability to go where they believe the bad guys are,” says Benjamin Wittes, a fellow at the Brookings Institution. “When people talk about a return to the criminal-justice system, they’re ignoring the geographical limits of that system.”
In fact, the military approach to fighting terrorism predates the Bush administration. After Al Qaeda attacked two American embassies in Africa in 1998, President Clinton launched cruise missiles against terrorist camps in Afghanistan and a pharmaceutical plant in Sudan thought to be making chemical weapons. During the presidential campaign, Mr. Obama said he would not hesitate to take out terrorist targets in Pakistan — an act of war — if that country’s government was unwilling to do so itself.
Going forward, the fight against terrorism will have to be something of a hybrid. This is a novel idea, as the Constitution lays out only two distinct options: the country is at war, or it is not. Such a strategy may require building new legal systems and institutions for detaining, interrogating and trying detainees.
There has already been talk of creating a national security court within the federal judiciary that would presumably give more flexibility on matters like, say, the standard of proof for evidence collected on an Afghan battlefield. Similarly, it may be necessary to set clear legal guidelines for when the government can detain enemy combatants, and how far C.I.A. agents can go when interrogating terror suspects.
This won’t be easy. It will require striking a balance between the need to preserve and promote America’s rule-of-law values, protect its intelligence gathering and ensure that no one who poses a serious threat is set free.
Such an infrastructure is not likely to survive unchallenged, let alone win popular support, if the executive branch builds it alone. Its chances would be far better with input from Congress, acting as the elected representatives of the people to ensure that any new systems protect both the public and America’s values. And direct advice from the courts could ensure that they are found to be constitutional.
Paradoxically, such an approach might ultimately enhance a president’s power. “We need a strong president to fight this war,” says Jack Goldsmith, a law professor at Harvard who worked in the Bush Justice Department, “and the way to ensure that there’s a strong president is to have the other institutions on board for the actions he feels he needs to take.”
Jonathan Mahler, a contributing writer for The Times Magazine, is the author, most recently, of “The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power.”
Copyright 2008 The New York Times Company
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