Politics

04.23.13

Obama’s Turning Point on Detainees

How a daring 2011 capture operation on the Red Sea created a template for what to do with Dzhokhar Tsarnaev.

Once again an emotional debate is swirling around the Obama administration’s treatment of a terrorist suspect. Its decision not to read Dzhokhar Tsarnaev his Miranda rights by invoking the so-called public-safety exception has anguished civil libertarians, who see it as a slippery slope toward police-state justice. Meanwhile, the administration’s decision not to brand the suspected Boston Marathon bomber as an enemy combatant has provoked howls from Republican members of Congress who say terrorists are war criminals who don’t deserve the gold-plated justice afforded by the U.S. criminal-justice system. Moreover, they argue, the government’s overriding priority ought to be extracting intelligence from terror suspects rather than protecting its ability to prosecute a case in civilian court. (Never mind that Obama would be in defiance of the law if he tried Tsarnaev, a naturalized U.S. citizen, in a military commission.)

There’s nothing unusual about the administration being buffeted from all directions by the politics of terrorism. What is different this time is that Obama officials seem to have approached the Boston case with a serene confidence that was lacking during most of the first term. Sources tell me there have been none of the usual fevered White House meetings or the deep divisions between administration lawyers and White House political factions that have characterized many of the other debates over terrorism policy.

For much of President Obama’s first term, the administration tangled itself up trying to calibrate security and civil liberties. The congressional backlash over efforts to close the prison at Guantánamo Bay and to try 9/11 mastermind Khalid Sheikh Mohammed in a civilian court left the White House’s rule-of-law agenda in tatters.

But over time—and especially recently—officials have found their footing when it comes to the treatment of terror detainees. They have pursued an Obamaesque middle ground that seeks to balance both intelligence and law-enforcement interests, while upholding time-honored principles of justice. That approach was evident in the administration’s handling of the Boston case, with the decision to invoke the public-safety exception to Miranda but then quickly announce that Tsarnaev would be tried in a civilian court according to regular process. “With its modern-day approach to the public-safety exception, I think our government has found the right balance between protecting the integrity of the criminal-justice system and national security,” says Jeh Johnson, who until recently was the Defense Department’s general counsel.

For Obama, finding that middle path was a difficult, torturous journey. His first experience with a major terror suspect turned into a political fiasco. Within hours of Umar Farouk Abdulmutallab’s attempt to take down a commercial airliner over Detroit on Christmas Day 2009, the FBI read the so-called underwear bomber his right to remain silent and to have a lawyer. He quickly clammed up. (He began cooperating again some weeks later.) The decision caused a furor in Congress and among Republican critics. Former vice president Dick Cheney led the charge. “It’s once again clear that President Obama is trying to pretend that we’re not at war,” Cheney said. “He seems to think that if we give the terrorists the rights of Americans, let them lawyer up, and read them their Miranda rights, we won’t be at war.”

Obama, who had long defended the proposition that the criminal-justice system was resilient enough to handle terrorism cases, was nonetheless spooked by the ferocious criticism in Congress (at the time he was trying to rescue his domestic agenda, particularly health-care reform, which seemed imperiled). He gathered his national-security team and questioned them closely on the decision to read Abdulmutallab his Miranda rights, according to two sources who were grilled by Obama. In the end, he said he was satisfied with their answers, but seemed to be searching for a compromise approach that would insulate him from political criticism while allowing him to maintain that he was not abandoning his principles. At Obama’s direction, White House lawyers began looking to see whether they could assert a “national-security exception” to the Miranda rule that would allow law enforcement to prolong the questioning of terror suspects before reading them their rights.

“Ten years from now an American teenager is going to be accused of blowing up the mall in Minneapolis,” Obama said in 2010. “I’m not going to be responsible for a second system of justice for that kid.”

Less than six months later, the Obama administration was again tested by a sensitive terrorism case. This time it was Faizal Shahzad, a Pakistani-American who attempted to set off a car bomb in Times Square. Almost immediately after he was arrested, Attorney General Eric Holder directed agents to invoke the public-safety exception to give agents ample time to interrogate him, according to senior Justice Department officials. Obama officials used the Shahzad case to demonstrate their toughness and it seemed to pay off. Shahzad waived his rights and over two weeks spilled his guts to investigators. In the following days, administration officials began floating their ideas about an expanded national-security exception to give agents even more time than the police have in ordinary criminal cases. The administration’s handling of the Shahzad case may have temporarily eased the pressure from Republican critics, but civil libertarians saw the episode as evidence that Obama was not staying true to the rule of law.

Meanwhile, Obama officials were wringing their hands over their decision to try the Khalid Sheikh Mohammed case in a civilian court. At its core, the case raised the same vexing issue as Abdulmutallab and Shahzad. Was the criminal-justice system tough enough to mete out justice to terrorists who were hell-bent on carrying out mass-casualty attacks in the United States? Although he never showed it publicly, no case tied Obama up in knots more than KSM. At one White House meeting in January 2010, the president veered between cold-eyed pragmatism and high-minded idealism. “I’m not going to lose my administration over this,” he told his national-security advisers, according to three participants in the session. But then he vowed to hold the line against a tiered system of justice in America. “Ten years from now an American teenager is going to be accused of blowing up the mall in Minneapolis,” he said. “I’m not going to be responsible for a second system of justice for that kid.” In the end, Obama caved on the KSM decision, but behind the scenes he prodded his team to look for ways to reclaim their principles in the treatment of terror suspects.

They got their chance in April 2011. Commandos from the fabled SEAL Team Six staged a daring nighttime capture of a Somali terrorist on the high seas between Yemen and Somalia. Ahmed Abdulkadir Warsame was a key liaison between Yemen’s al Qaeda affiliate and the Shabab, the terror organization based in Somalia. Moreover, Warsame had been in regular contact with Anwar al-Awlaki, the U.S.-born Yemeni cleric who Obama viewed as the single greatest terrorist threat to the homeland. After snatching Warsame, the American commandos transported him to an American warship steaming nearby in the Indian Ocean. As challenging as it was to capture Warsame, figuring out what to do with him would be even harder.

Over the following two months, the White House held more than a dozen high-level meetings to determine Warsame’s fate (which I recount in my recent book, Kill or Capture). The preferred option of most was to try Warsame in a federal court in Manhattan. Doing so would prove the civilian system was resilient enough to try a major terrorist—and exorcise the ghost of the KSM decision. But some officials feared the fallout from Congress. Another option was to turn Warsame over to a third-party country for prosecution, but that was quickly dismissed. Finally, they could have placed Warsame into the military justice system, shipped him off to Guantánamo, and prosecuted in a military commission—a result that no one much liked but might have been the path of least political resistance.

In the end, the White House chose to bring Warsame to New York for trial. Once the decision was finalized by the national-security “principals,” John Brennan, then Obama’s top counterterrorism adviser, captured the collective sense of satisfaction in the room. “We’ve proved we can kill terrorists,” he said. “Now we have to prove we can capture them consistent with our values.” During the entire time the administration debated the Warsame case, the Somali terrorist was imprisoned on the USS Boxer in the middle of the ocean. But officials were fastidious about his treatment. Held at first under the laws of war, Warsame was interrogated for intelligence purposes. Later, he was read his Miranda rights and afforded the full protections of the criminal-justice system. It was a middle path that carefully balanced the competing interests of security and law.

As dawn broke on Independence Day, Warsame began his journey to New York, escorted at first by the military and then the FBI. At the White House Fourth of July barbecue, Obama and Holder talked about the Warsame news, which had yet to become public. “Textbook,” Obama said. “Textbook.” The White House waited for its critics in Congress to erupt, but despite a few outbursts, the criticism petered out relatively quickly. The public largely treated the episode with a yawn. It was a significant turning point for an administration that had been pathologically skittish about terror-detainee issues: somehow, Obama and his team had found their way to a successful policy.

Last month, Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, was detained in Jordan and extradited to the U.S. for trial in federal court in New York. This time, there was barely a peep from Congress. In the wake of the Boston bombings, an event that sent waves of fear through the country with its echoes of 9/11, the critics in Congress stepped up their denunciation of the administration’s approach. But this time, Team Obama responded decisively and free of the handwringing that had characterized so much of its conduct in the first term. Sen. Lindsey Graham of South Carolina, Rep. Peter King of New York, and a few others pressed their case against Obama—but their voices seemed to be fading by Monday evening.