The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office. After the stunning failures of the preceding Administration, Obama’s inauguration in November 2008 was greeted with euphoria. Obama’s bearing, approach and outlook seemed to offer a “just in time” rescue for national security policies run aground. Now, as the day-to- day reality of governing sets in, it is increasingly clear that the nation will need every bit of the new President’s heralded thoughtfulness and calm. Obama seems an excellent example of Ernest Hemingway’s definition of courage as “grace under pressure.” Even without considering the economic debacle confronting the world and its impact on global markets, the national security concerns confronting the United States as the world’s leading power are daunting.
A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system.
Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty. Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.”
Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest, charge, and prosecute suspected terrorists. Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”
After 9/11, two officials at the Central Intelligence Agency (CIA) made decisions that led to major news. In 2002, one CIA official asked the Justice Department’s Office of Legal Counsel (OLC) to clarify how aggressive CIA interrogators could be in questioning al Qaeda operatives held overseas. This request led to the August 2002 memorandum, later leaked, in which John Yoo argued that an interrogator crosses the line into torture only by inflicting pain on a par with organ failure. Yoo further suggested that interrogators would have many defenses, justifications, and excuses if they faced possible criminal charges. One commentator described the advice as that of a “mob lawyer to a mafia don on how to skirt the law and stay out of prison.” To cool the debate about torture, the Bush administration retracted the memorandum and replaced it with another.