Common Criminals or Enemy Combatants?

President Obama ascended to the seat of America's political power by promising a thorough departure from his predecessor's terrorism doctrine. One year later, Obama is looking a lot like his nemesis. Or can it be that after taking over Bush's place, the young president has come to the conclusion that the old man was not so wrong after all? After so much backpedaling lately, the Obama camp is giving that impression. Obama the president must be regretting what Obama the candidate often said so eloquently, and even candidly, against Bush's policies. The candidate never wasted an opportunity to fiercely criticize the Texan as one more way to distance himself from the former president's stance on almost every issue. By doing that, Obama painted himself into a corner.

Reality bites like nothing else does, and pragmatism is in America's DNA, but the beleaguered current White House tenant is really between a rock and a hard place. The American public is overwhelmingly against a civilian trial for KSM. Many Democrats are complaining that the Bush administration successfully tried terrorists in civilian courts, and today's brouhaha is just anti-Obama rhetoric. Regarding those who dare to differ, John Brennan wrote recently that "[p]olitically motivated criticism and unfounded fear-mongering only serve the goals of al-Qaeda." Ouch! Close ranks, and no dissent allowed. Yet Obama's circumstances are different from Bush's. The latter didn't have the benefit of hindsight; 9/11 happened unexpectedly and became a horrid call to action. The U.S. political and legal systems were not prepared for the onslaught. Passenger planes as human missiles? The strategy against jihadism had to be delineated from scratch and on the go. Today we know the jihadist enemy and his intentions much better. Bush's untested and much-maligned normative approach kept the country safe and provided new instruments to deal with jihadism, yet Obama came to power on the wings of anti-Bushism.

One year after his historic election, the latest poll indicates that a whopping 75 percent of American voters are "angry" at the Obama administration's policies -- 89 percent of Republicans, 61 percent of Democrats, and 78 percent of independents. The plans for the trial of KSM in New York and the Mirandizing of the Christmas terrorist have hurt Obama; it's been too much to stomach for a public that wanted change, but not that specific kind of change. During the campaign, the candidate looked so sure in his righteous assessment; now the president gives the impression of being constantly caught by surprise, improvising last-minute solutions, or backtracking. Campaigning has always been different from governing.

Former Vice President Dick Cheney said recently, "We made a decision after 9/11 that I think was crucial. We said, 'This is a war -- it's not a law-enforcement problem.'" Well, Obama always saw it the other way around. Bush wanted to treat terrorists as enemy combatants and not your regular shoplifters; Obama wailed because he considered that this approach compromised "America's most precious values." In the war vs. law enforcement approach, we can't see the forest for the trees. We are so focused on the details -- the cost of the trials, the security issue, the funding, American values, the terrorists' dog and pony show, you name it -- that we fail to see the picture as a whole: The United States has a legal system designed to protect the citizen against the crushing power of government, and very strict standards were set to guarantee that protection. The framers of the Constitution were very clear in their intent; not in their wildest dreams would they have envisioned the possibility to extend the same civil rights and protections for American citizens to foreign enemies pursuing the nation's destruction.

Here's the latest proof showing how some are missing precisely that point: On Tuesday, none other than the Chairman of the Judiciary Committee, Sen. Patrick Leahy (D-VT), and the Chairwoman of the Intelligence Committee, Sen. Dianne Feinstein (D-CA), wrote to President Obama "to endorse the use of our federal criminal courts to prosecute and bring terrorists to justice ... We disagree with those who contend that our investigators, prosecutors, courts and the men and women who protect our courts and prisons are not up to the task of bringing these terrorists to justice." That's not the point; the issue here is that the criminal court system was never engineered to deal with jihadists arrested on battlefields or coming from abroad to attack the homeland. American criminal laws are based on the deterrence model; since the jihadist's ultimate goal is martyrdom through suicide, deterrence becomes almost utopian when the enemy is more interested in the Hereafter. The enormous strain for choosing a criminal defendant approach for jihadists is painfully evident. Worse yet, those martyrs-to-be incessantly insist that they are waging war and seek our annihilation. That's why it was so urgent to find another way. Other nations have developed an array of legal tools and procedures to deal with their domestic terrorist groups because they have suffered the scourge of terrorism on their soil much longer than the United States has. That's what Bush attempted to do after 9/11 -- and the rest is history.

Terrorism may be as old as mankind, but it has evolved over time. The contemporary version of the terrorist enterprise is new to us. We are dealing with a new type of enemy, but some are pretending that we are completely able to confront him with our old legal tools. Bush's way of dealing with jihadism wasn't Obama's cup of tea, so the newcomer asked for a chance to do it in pure Sinatra style: his way. Although Obama got his wish and has attempted to apply his recipe, his endeavors have ineluctably clashed with reality. Many of his voters already have a bad case of buyer's remorse at this early stage of his presidency. Obama's approach to the legal treatment of terrorist suspects has much to do with those sinking poll numbers. Seen the "Miss me yet?" billboard? It all goes back to Bush again because he tackled the issue as a new challenge that required a new modus operandi -- while others have clung to less pioneering approaches. Obama, the anti-Bush candidate, now goes on television to say that he's no different from Bush. Who would have thought it?!

Miryam Lindberg is an adviser to the Foundation for Defense of Democracies and a longtime contributor to Strategic Studies Group, a Spanish security and defense think-tank.
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