Clarifying the war on terror

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.

* Legal advice. The memos released last week were produced by the Justice Department’s Office of Legal Counsel, which is supposed to provide policymakers with objective interpretations of current law. That the office was failing in its mission has been clear since the release of the notorious 2002 memo -- later rescinded -- that defined torture as pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” Obama’s nominee to head the office, Dawn Johnsen, favors the public release of at least some opinions. As with the state secrets privilege, the Justice Department should aim for maximum transparency in explaining the legal rationale for its policies -- even when they involve national security.

* Investigations of U.S. officials. At the same news conference at which he said he wanted to look forward, not back, Obama also said that “if there are clear instances of wrongdoing, people should be prosecuted just like any ordinary citizen.” A prosecutor is already investigating the destruction of the CIA tapes, but charges are unlikely because of an absence of a clear legal requirement that they be preserved. Still, the administration in the future must not overlook evidence of possible perjury or the willful destruction of evidence. And decisions about whether to prosecute should be made by the Justice Department, not by the White House.