The Obama Administration and the war on terror.

• Author: Mukasey, Michael B.

Last year I expressed the hope that the incoming Obama Administration would take a good look at what the Bush Administration had done in good faith to keep the United States safe. (1) My hope was that the Obama Administration would find those measures both lawful and effective and would, by and large, keep in place the programs and policies that had succeeded in protecting this country since the September 11 attacks. I now seek to examine a few of those programs, policies, and issues to see to what extent the hope that I expressed last year was realized.

The first category of policies has to do with intelligence-gathering. Although there was recently an incipient move in Congress to repeal the authorities granted under the Foreign Intelligence Surveillance Act (FISA) amendments passed in 2008, that effort appears to have been beaten back. (2) Intelligence-gathering authorities have remained in place. I cannot speak to the implementation of these authorities because I am no longer privy to that information, and even if I were, considerations of security would not permit me to discuss such issues publicly.

Based on a first-hand report, however, foreign security officials, after meeting with an American counterterrorism official, described the Swift System--the current procedure for tracing international money transfers--as the same as the system that had been in place under the previous Administration. (3) The U.S. official who was present agreed and remarked that "this is continuity you can believe in." (4)

The same appears to be true, at least for the moment, for procedures that the Department of Justice put in place to allow FBI intelligence-gathering to continue and to be subsumed into its existing crime-solving functions. We put those procedures into effect in December 2008, (5) after well over a year of consideration and review. Despite pressures to roll back those procedures, the Department of Justice has, at least for the moment, indicated that it intends to allow them to remain for a reasonable time before making any changes. (6) All in all, this result is encouraging, if not surprising.

Finally, the Obama Administration has said that it will continue to recognize the state secrets privilege when litigation threatens to disclose national security information, and that it will bring such litigation to an end even when the government is not a party to it. (7) The Administration professes to have a somewhat narrower view of that privilege than we did, (8) but nonetheless at least recognizes it.

In contrast, the record is less encouraging when it comes to dealing with detainees and with those in the government who have been involved in intelligence-gathering. The Obama Administration has made many changes with respect to policies regarding the detention and apprehension of prisoners on the battlefield, obtaining intelligence from those who may be in possession of it, the prosecution of those who can be charged with war crimes, and the detention of other enemy combatants, who may target civilians, who do not wear uniforms or follow any recognized chain of command, and who therefore could be detained at a minimum as unlawful combatants and are much too dangerous to release.

Here again, the Obama Administration's plan seems to abandon the view that we are involved in a war and that we ought to employ procedures appropriate to a war, which is the view that the Bush Administration had adopted after September 11. Instead, the current Administration's plan is to revert to a criminal justice model of the sort that prevailed in the 1990s, when the United States witnessed the first World Trade Center bombing in 1993, (9) the bombing of our armed forces facility at Khobar Towers in Saudi Arabia, (10) the attack on the U.S.S. Cole that killed 17 sailors, (11) the attempted attack on the U.S.S. The Sullivans that would have succeeded had the boat carrying the explosives not sunk, (12) the bombing of American embassies in Kenya and Tanzania, (13) and eventually the attack on September 11, 2001 that killed almost three thousand people.

This policy change follows the Obama Administration's sweeping proclamations in January 2009 that implicitly suggested that the prior Administration had sanctioned torture and had been bent on detaining combatants at Guantanamo without proper treatment or access to legal proceedings. (14) The Obama Administration announced boldly that it would abandon harsh interrogation techniques, which were loosely characterized as torture, and close the detention facility at Guantanamo within a year. (15)

What has followed has seemed in many instances to be a system in which policy is fashioned to fit antecedent rhetoric rather than a system that develops a policy first with public arguments then formulated in support of it. With respect to past interrogations, because of the implicit suggestion that the prior...