In a measured tone, Prof. Peter Berkowitz of the Hoover Institution asks President Obama some thoughtful questions on the legal aspects of keeping the nation safe:
How will the U.S. handle and detain suspected terrorists after the closing of Guantanamo?
“Under what circumstances, if any, should the law permit CIA interrogators to depart from military interrogation rules?”
What will the legal procedure be for trying terrorist suspects — military commissions, federal courts, new tribunal with special additions?
What position will the Obama administration take toward the International Criminal Court, and, specifically, should its authorizing treaty be submitted for ratification?
“Under what circumstances would President Obama order the use of American military force in the absence of a U.N. Security Council Resolution authorization?”
“What further rethinking does America’s law of surveillance require following the Foreign Intelligence Surveillance Act’s passage last year?”
“Should the U.S. continue the practice of targeted killings, and if so under what circumstances?”
All these are important, complicated questions (and there are more in the article itself), and although he does not say as much, there’s a domino quality to Berkowitz’ presentation: the way the Obama team answers each question will necessarily impact many of the other questions. One major problem for the new legal team in dealing with these questions is the obligation to maintain security without having the clarifying “advantage” of a crisis:
A paradox in the struggle against terrorism is that we define success by prevention, yet successful prevention, because much of it goes unnoticed, causes vigilance to wane, and the public to grow more complacent.
Of course, Berkowitz is being optimistic here. He says it’s “the public” that grows more complacent — but the real question behind all the other questions he asks is this: is it just the public that has grown more complacent or is it the new administration, too?