Bush Didn't Make Any Mistakes, But Obama Should Learn From Them

As part of his continuing series of columns in which he demonstrates his eagerness to be invited to Bush's new Dallas home for supper, Michael Gerson shares more thoughts on the incoming Obama Administration.

Part of the appearance of security is rooted in seven years without additional terrorist attacks in America - itself a triumph against violence. It is difficult for a leader to take credit for a negative achievement - for the absence of failure. But here credit is due.

Apparently we're talking about international terrorism, in which case the seven years Gerson sees as warranting credit to Bush represent almost as much time as the eight year period between the first and second attacks on the World Trade Center. Gerson's correct that the passage of seven years doesn't justify complacency, but so far Bush's track record isn't better than Clinton's. If a terrorist attack were to occur in 2009, is Gerson more likely to pen a column describing the failure of Bush's policies, or to accuse Obama of taking his eye off the ball? As if Obama had warnings from the outgoing administration about the threat of al-Qaeda, and a memo on his desk declaring that they intended to attack within the United States, but focused on other priorities?

But there's another way to look at this: After supposedly ramping up to deal with large-scale terrorist attacks, the consequence of which could mirror the effects of a natural disaster, how did the Bush Administration perform? If anything should move us away from complacency, it's that track record.

Gerson sees the Congressionally approved tools used to combat terrorism as non-controversial, but finds room to learn from Bush's excesses:

Yet some methods designed for exceptional cases, such as waterboarding, were ethically disturbing and eventually counterproductive - causing self-inflicted ideological wounds in a largely ideological struggle.

I had almost forgotten that torturing people is "ethically disturbing". It's good to have a "compassionate Christian" around to remind us of that.

And there is little doubt that some administration claims of executive power invited a judicial backlash and undermined the power of future presidents.

Others might argue that the level of judicial deference to Bush is more problematic than the few cases that went against him. Gerson's right that future Presidents will have to remember that their office has limits, and those limits will at times be enforced by the courts. But he's confused about the source of those limits, as they in fact arise from a document the President is sworn to uphold, the Constitution. Gerson continues to explain the consequence of Bush's extra-constitutional actions:

If the administration had sought congressional backing for military commissions in 2001, and later for rules to hold combatants, the resulting legal framework would probably have been upheld by the courts - and would probably have been closer to administration goals than the eventual result.

So had Bush respected the Constitution and separation of powers, and acted accordingly, there would have been less litigation and the outcome would have been closer to what he wanted? That's the consequence Gerson sees from a "judicial backlash [that] undermined the power of future presidents"? The horror!

Gerson is apparently concerned that "enhanced" forms of interrogation won't be available to the CIA:

Or should the CIA be allowed to employ still-classified "enhanced" techniques short of torture? During his campaign, Obama promised the universal application of the Defense Department approach - but that is easier for a candidate than a president to pledge.

Sure, and Obama will have access to classified information that will help him make that assessment. But if we look at the interrogation techniques that worked in finding and killing Abu Musab al-Zarqawi, not only was torture unnecessary, by all appearances it would have been counter-productive. If one is needed, the fact that the result of the investigation was a bombing run intended to kill al-Zarqawi is a reminder that warfare carries a very different set of ethical balances than peace. But it's one thing when you are forced to make tough decisions that challenge your values due to the realities of war, and quite another to repeatedly make ethical concessions out of loyalty to a particular politician or administration without examining the reasoning behind those policies or considering their efficacy.

The hardest issues concern detained terrorists. Guantanamo will and should be closed as a public diplomacy nightmare. Perhaps half of the detainees will be sent home, leaving about 100 exceptionally dangerous men.

Well, so far that doesn't sound very hard. Why, though, do we still have 250 detainees at Guantanamo if it's so easy to sort out the "really bad ones" from the rest, and to send the others home?

The Obama administration will need to decide on a format for trials - much improved but politically discredited military commissions, ordinary civilian courts or some kind of national security courts created by Congress and supervised by the federal judiciary.

But the administration will not be able to try everyone. Some detainees will be too dangerous to release but too difficult to convict in a normal court setting using unclassified evidence. And any president will need the ability to hold and question newly captured terrorists outside the procedures designed for American criminals.

The reality is that you're unlikely to find any of that 100 who cannot be convicted and sentenced to life in prison based upon less sensational charges that don't require public disclosure of classified evidence or investigative technique. Remember John Walker Lindh, who if convicted at trial could have received up to three life sentences plus an additional 90 years in prison? There are many charges that can be brought against those defendants that will prevent them from ever again stepping outside the walls of a federal prison.

But let's assume for a moment that there are a few whose trials would somehow require public disclosure of material that would undermine our continuing efforts to fight wars and combat terrorism. That no number of court orders or protective measures could allow a fair trial without disclosure of that information. What would Gerson suggest then?

Unless Obama returns to a simple exertion of executive authority, he will require congressional authorization to detain people.

So Gerson is suggesting that Obama can spare himself a lot of headaches and better protect the nation by eschewing Bush's unilateralism in favor of constitutional process?

And this will expose a major tension between the new president's military responsibilities and the views of supporters who believe that detainees should be held only in preparation for trial.

Assuming, in fact, it's necessary for Obama to request extraordinary power in relation to some of the detainees. But you know what? There aren't many Obama supporters who actually fit the description Gerson provides - there may not even be any. The vast majority of Obama's supporters have always acknowledged the reality of the situation. Extending habeas corpus rights to detainees held in U.S. prisons is not the same thing as saying "detainees should be held only in preparation for trial" - it relates to whether or not detention is justified. It's a check on abuses and the potential for abuses. You shouldn't have to be much of a student of history to understand why the Founding Fathers were sufficiently concerned about that potential that they inserted habeas corpus rights into the body of the Constitution.