The good will from President Obama’s inauguration lasted only as long as it took him to reaffirm his campaign pledge to close the Guantanamo Bay prison camp on his second full day in the White House. One year out, national security law remains a political battlefield, with Republicans and conservatives mounting partisan attacks grounded more in ideology than in evidence or reason.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.