President Obama last week decided to try Khalid Shaikh Mohammed and four other accused Sept. 11 conspirators before a military commission in the prison at Guantanamo Bay, Cuba, rather than in a civilian court in the United States. It’s the latest example of Obama, who was acidly critical of George W. Bush’s policies in the war on terror, embracing those policies or acquiescing in their continuation. Explanations abound: an assertive Congress, a lack of public support, a seductive bureaucracy or a change in Obama’s thinking from candidate to president. Each example tells a different story, but the end result is disappointing. And the responsibility ultimately lies with the president.

The fiasco of the Mohammed trial is an example of good intentions followed by inept execution. When Atty. Gen. Eric H. Holder Jr. announced in 2009 that the self-proclaimed Sept. 11 mastermind and his confederates would be tried in a civilian court, we said that the decision “makes an eloquent statement about the Obama administration’s determination to avenge the victims of terrorism within the rule of law.” Holder said Mohammed and the other defendants would be tried in New York “to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.” But that was precisely the problem for many New Yorkers, who regarded a trial near ground zero as a sacrilege or who feared it would be a magnet for terrorists.

The uproar over a trial in New York drowned out the compelling arguments for a civilian trial somewhere in the United States. Civilian courts have ample experience in trying suspected terrorists, including Zacarias Moussaoui, the so-called 20th hijacker. A trial before a military commission, which lacks some of the protections accorded to defendants in a civilian trial, would make it easier for America’s enemies to portray it as a show trial.

So Obama eventually backed down. Why? Partly because public and congressional opinion had quickly moved from hostility to a trial in New York to hostility to a trial anywhere in the United States. But Obama cooperated in dooming civilian trials. First, he provided cover to his critics by retaining the option of military commissions for some detainees, an inconsistent policy that encouraged critics to urge a military trial for Mohammed and the other Sept. 11 conspirators. Second and more important, Obama was maneuvered into signing a defense authorization bill that barred funding for transferring any Guantanamo inmate to the United States. Obama issued a limp statement saying he would “work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.” Those protestations aside, by signing the legislation, Obama guaranteed two outcomes: The detainees wouldn’t be tried in a civilian court, and Guantanamo wouldn’t be closed.


Guantanamo, of course, is the signal emblem of Obama’s unfulfilled promises. In the first week of his presidency, he signed an executive order calling for the closure of the notorious detention center within a year. He said he wanted to restore “the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism.” Yet Guantanamo remains open, and indeed will be the setting for Mohammed’s trial.

Here too congressional resistance plays a role. But, whether because of fatigue or the press of other business from healthcare to the economic crisis or because it’s politically astute, Obama has deemphasized closing Guantanamo. His convictions haven’t changed — he has described the existence of Guantanamo as a recruiting tool for al Qaeda — but his ardor apparently has ebbed. Signing an order to close Guantanamo remains one of Obama’s finest hours. He shouldn’t abandon the issue.

With Guantanamo, Obama is unwillingly perpetuating a state of affairs from the Bush administration. But he has voluntarily continued another Bush policy that he had criticized on the campaign trail. This involves the “state secrets” doctrine, which allows the government to shut down a trial on the grounds that it would betray sensitive information. Given its proclivity for secrecy, it isn’t surprising that the Bush administration invoked the doctrine to forestall the disclosure of information about abuses in the war on terror. It was more surprising when the Obama administration on several occasions embraced the same doctrine.

In one case, the Bush administration had intervened in a lawsuit brought by five men who said they had been flown to other countries and tortured under the CIA’s disgraceful “extraordinary rendition” program. The administration cited the state secrets privilege in an effort to close down the trial and keep details of the program from coming to light. Some civil libertarians assumed that after Obama was elected, his Justice Department would reverse the Bush position, but instead it reaffirmed it. Holder established new procedures for assertion of the state secrets privilege, including a requirement that the attorney general approve its use on a case-by-case basis and the creation of a State Secrets Review Committee. But the similarities with the Bush policy are more significant than the differences.


A final example of Obama adopting a Bush national security policy is the president’s signing of an extension of three sections of the Patriot Act. Two of the provisions are defensible: the use of “roving” wiretaps to track suspected terrorists and the surveillance of “lone wolf” suspects who aren’t part of a terrorist organization. The third provision, however, is deeply flawed. It allows investigators to obtain business records or other “tangible things” with a minimal showing to a judge of a connection with terrorism.

Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, has proposed language that would establish a higher hurdle for judicial approval. No longer would a judge be instructed to presume that a record being sought was relevant to an investigation. Obama could have held out for those and other amendments.

Obama supporters who expected him to dismantle the worst parts of the Bush administration’s anti-terror architecture have the right to be disappointed. Every president discovers that positions glibly pitched on the campaign trail look different when viewed from the Oval Office, and many presidents must deal sooner or later with an assertive Congress. But neither of these realities absolves Obama of embracing or accepting arrangements that, in the name of national security, threaten privacy and undermine due process of law.