Obama Forced to Revise His Anti-terrorism Policy

The American president had originally promised to end the abuses of his predecessor, George W. Bush, but his team appears to be hesitating or even retreating on several fronts.

While the many U.S. intelligence agencies responsible for counterterrorism continue to fight among themselves — and to examine their respective responsibilities in the wake of the failed terrorist attack in Times Square — the Obama administration seems at pains to define a legal approach and a coherent policy in this area. It is as if having come so close to a disaster in Times Square has suddenly changed the perspective of the White House.

The president had initially promised to end the excesses of his predecessor, George W. Bush, by announcing the end of the use of torture, the early closing of the Guantanamo Bay prison and the transfer of detainees to civilian courts. He was betting that the fight against terrorism could be combined with respect for the principles of American democracy.

But the Democratic team, while not appearing to have abandoned these goals, seems to be hesitating, or even retreating on several fronts, under pressure from the Republican opposition. Thus, the closing of Guantanamo, which Obama had planned for January 2010, could be indefinitely postponed.

No Transfer to Illinois

The proposed transfer of prisoners held at the Guantanamo Bay military base in Cuba to a high-security prison in the United States was also threatened last Wednesday. The administration had asked Congress to approve a budget of $350 million to purchase and renovate a nearly empty prison in Thomson, Illinois. However, the House Armed Services Committee has just approved a bill that would prohibit the administration from establishing, on American soil, a detention center that would be expected to receive “enemy combatants” who are considered too dangerous to be released but who cannot be tried for lack of sufficient evidence.

The Obama administration also recently announced, through Attorney General Eric Holder, that it would propose legislation to allow investigators to question suspects without immediately informing them of their rights to remain silent and to ask for a lawyer. The intent would be to add flexibility to the legislation known as the “Miranda” rights, which refers to a 1966 U.S. Supreme Court decision prohibiting investigators from using at trial any information that was obtained from a suspect prior to the suspect being informed of his rights.

Determined to reconcile the fight against terrorism and the rule of law, Holder had until now insisted on the importance of preserving the rights of suspects and of respecting the “Mirandisation” of prisoners. But Republicans, in the name of national security, have continued to call for bringing suspects before military courts in order to circumvent the Miranda law.

In the wake of the aborted attack on Times Square, the Obama administration finally revealed some of its rationale — not always opting for military tribunals, but rather lifting some of the constraints that complicate the work of civilian investigators. “We’re now dealing with international terrorists, and I think that we have to think about perhaps modifying the rules that interrogators have, and somehow coming up with something that is flexible and is more consistent with the threat that we now face,” Holder said.

The purpose of the proposed rule changes would be to allow investigators to overcome an agonizing dilemma — get the maximum information during interrogation in order to prevent an imminent attack, or conduct the interrogation so that charges would later be admissible in a civilian court. Like Bush, Obama has discovered that it is not so easy to combine the rule of law and the fight against terrorism.