Obama’s Turning Point on Detainees

[DonViejo]

by Daniel Klaidman Apr 23, 2013 4:45 AM EDT

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.”

full article
http://www.thedailybeast.com/articles/2013/04/23/obama-s-turning-point-on-detainees.html