WSJ Editorial Page: Obama's Antiterror Progress

Obama's Antiterror Progress. WSJ Editorial
He embraces Bush policies on secrecy, rendition.
WSJ, Feb 13, 2009

President Obama has done a masterful job disguising his Administration's growing antiterror maturity, but this week produced further evidence that he is erring on the side of keeping the country safe rather than appeasing the political left. The Justice Department filed to dismiss a federal appeals case involving rendition, embracing an argument developed by . . . the Bush Administration.

In other words, the anti-antiterror lobby is being exposed as more radical than its putative banner carrier. As Mr. Obama is learning, the left's exertions to disarm the country's counterterrorism arsenal are as dangerous now as they were prior to his election.

In this closely watched case, the American Civil Liberties Union sued the flight-logistics outfit Jeppesen DataPlan in 2007 on behalf of Binyam Mohamed and four other Guantanamo detainees. The argument was that the Boeing subsidiary was complicit in arranging flights for rendition, a policy that transfers certain terror prisoners seized abroad to other countries for interrogation. Mohamed and his compatriots claim they are the victims of torture overseas.

The Bush Administration argued the case should be dismissed because open proceedings could damage national security by disclosing state secrets. A lower court agreed. Most everyone expected the Obama Justice Department to dump the secrecy line when the case came up for review before the left-leaning Ninth Circuit Court of Appeals on Monday, apparently including the Ninth Circuit.

Judge Mary Schroeder asked leadingly, "Is there anything that might have happened" to cause Justice to shift its views? "No, your honor," the Justice attorney, Douglas Letter, replied. A startled Judge Schroeder tried again. "The change in Administration has no bearing?" Mr. Letter reiterated that his positions had been "authorized" and "thoroughly vetted with the appropriate officials within the new Administration."

The Obama Administration says it will invoke the state secrets privilege more sparingly than its predecessor. But it is really admitting that lifting the hood on classified intelligence-gathering would let terrorists know what to expect, and to shift their operations to avoid detection. Perhaps the Obama team has also stumbled upon the larger game behind lawsuits like the one against Jeppesen -- which is to intimidate private companies into refusing to cooperate with the government on national security.

The left has failed to achieve its policy ambitions through Congress or by directly challenging the government in court. So the latest tactic is suing third parties such as Jeppesen -- note that the ACLU is not suing here to win Mohamed's release -- to hamstring the executive branch via the courts. These companies thought they were doing their patriotic duty by lending a hand.

But the anti-antiterror trial bar uses lawsuits to raise the costs for these private actors of cooperating with the intelligence community, and the legal exposure makes it that much more difficult for the feds to gain private cooperation. Sometimes the suits shut down such cooperation altogether. The telecom companies, faced with multibillion-dollar civil complaints over warrantless wiretapping, refused to proceed without legal immunity, and the 2007-2008 political dispute nearly ended the program. The FISA appeals court revealed last month that one (still anonymous) telecom even sued the government to opt out.

The larger story here is that the anti-antiterror lobby is losing the man it thought was its strongest ally. During his campaign, Mr. Obama talked as if he really believed that the Bush Administration was uniquely wicked on national security. Joe Biden cosponsored Senate legislation that would have prevented the executive branch from making state-secrets claims to shelve lawsuits, rather than shielding individual evidence from judicial (and public) scrutiny.

Now it seems that the Bush Administration's antiterror architecture is gaining new legitimacy, just as Eisenhower validated Truman's Cold War framework. Mr. Obama claims to have banned coercive interrogation techniques, except in those cases where more extreme measures are necessary to save lives. He says he'll shut down Gitmo in a year or so, but his subordinates -- including Elena Kagan during her confirmation hearings for Solicitor General this week -- admit that indefinite detention will still be necessary for some terrorists. He walked back his wiretap absolutism even before he was elected. Now the Administration has endorsed the same secrecy posture that he once found so offensive, merely saying that it will be used less frequently. We'll see.

These are all laudable signs of Mr. Obama's antiterror progress. Perhaps some day he'll acknowledge his debt to his predecessor.