Humility And Oversight

Whatever else it was, and whatever else it means, President Barack Obama's terror law speech this morning was profoundly candid. Over and over again, in words that were at times eloquent and at times simple, the president conceded the limitations of the executive branch's ability to easily or quickly solve some of the very same legal issues that beguiled the Bush Administration for nearly eight years.

If it were a breeze to close the prison at Guantanamo Bay, Cuba, Bush officials would have done so years ago (indeed, they tried to do so years ago). If it were a mere matter of logistics to try terror detainees in federal courts, we'd already have seen dozens more cases along the lines of what we saw when the government convicted Zacarias Moussaoui and Richard Reid, the shoe-bomber. And if were safe to release all manner of state secrets, politicians long before Obama would have done so for the votes.

So all the president did Thursday, standing as he did in front of a facsimile of the Constitution (the originals were protected from the television lights), was acknowledge, refreshingly, that there are no easy answers to tough questions; that the war on terror, like any and every other conflict, is a complicated, nuanced slog. We now know that the outwardly cavalier approach to these same issues during the Bush Administration—the posturing that evidently was designed to intimidate our enemies—has been replaced by public reminders of the complexities of it all.

"There are no neat or easy answers here," the president said. "But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As president, I refuse to allow this problem to fester. Our security interests won't permit it. Our courts won't allow it. And neither should our conscience."

George W. Bush was famous for failing to publicly acknowledge a single mistake he had made in office. Now we have a president who intends to use his bully pulpit to bludgeon us into remembering how many pitfalls exist to getting it right. The truth hurts but not so much as a lie.

The biggest news from the speech came when the president confirmed that there are a group of detainees at Gitmo who can neither be tried nor released back into the world and who will thus face permanent detention. He pledged to create "clear, defensible and lawful standards for those who fall in this category" so that "any pro-longed detention is carefully evaluated and justified." On this topic, and many more, he expressly called upon Congress for help, a bilateral (and ultimately healthy) approach the Bush Administration so often spurned (even when the Republicans controlled the Hill).

Take, for example, the issue of secrecy over national security matters. "I will never abandon," the president declared, "and I will vigorously defend the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts."

"I will never hide the truth because it is uncomfortable," the president continued. "I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why." It's no wonder that former Vice President Dick Cheney seemed by contrast to be stuck back on September 12, 2001 when he delivered his own speech right after the president had completed his.

Before the echo of the president's voice had faded, some civil liberties groups were criticizing the White House's renewed commitment to military tribunals for some detainees and indefinite detention for others. Thanks for the nod to the rule of law, these folks said to the president, but we still think your plan isn't much better than the old plan. Only it is, in terms of its acknowledgment of the limitations of presidential power, its willingness to seek guidance from the Congress and the courts, and its confidence in legal precedent that teaches us that terrorists can be successfully tried and imprisoned here.

Will the administration endorse tribunal rules that are upheld by the courts? Can the White House protect national security but still keep us better informed about terrorism issues? Can our politician-demagogues get it through their heads that bringing terrorists to our prisons is nothing new? The answers to those questions lie ahead. For today, we got a serious speech on a series of serious topics delivered by a man who, after all, was once a constitutional law professor.


(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.

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