Wednesday, November 19, 2008 12:40 PM

War On Terror Presents Legal Conundrum For President-Elect

By MARY GILBERT

Barack Obama has pledged to close the detention facility at Guantanamo Bay as president. But as several legal experts pointed out this morning in an online seminar sponsored by the American Security Project, that will not begin to address the litany of legal questions surrounding the war on terrorism that the new administration will be forced to grapple with starting January 20.

ASP Senior Fellow Bernard I. Finel, a former U.S. National War College professor; Anthony Clark Arend of Georgetown University's Walsh School of Foreign Service; and Damon A. Terrill, former Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State, have each released new policy papers on what the next president and Congress must do to restore a commitment to the rule of law in America's foreign policy. Terrill writes, and Finel and Arend agree, that the Bush administration "has undermined both the reality and perception of America's decades-old commitment to the rule of law and the values upon which it rests." This, they say, has damaged America's reputation abroad, weakened the country and made Americans less safe.

Obama must take both short- and long-term steps to begin to address the legal questions surrounding detainees, interrogation methods, military tribunals, wiretapping, and the targeting of terrorists abroad, they argue.

Terrill pointed out today that the new administration's first step should be to clarify where the law stands on these issues. He argued that the Bush team's use of executive orders and classified legal opinions has obscured the meaning of the current body of law, even for those within the government. There should be a comprehensive review process led by the National Security Council to determine what the law currently says and how it should be revised, he said.

Arend maintained that, as soon as Obama takes office -- preferably in his inaugural address -- he should issue a general policy pronouncement stating that the nation's approach to these issues will change immediately. Arend suggested three concrete steps Obama could take to signal his commitment to changing direction: closing Guantanamo, issuing an executive order saying that the intelligence community will be bound by the Army Field Manual rules for interrogation, and repealing the Military Commissions Act, which governs the trials of enemy combatants. Finally, Arend said he would like to see Obama create a bipartisan task force to determine how the U.S. should proceed on these issues in the future.

Arend pointed out that these are areas where existing international law is not fully formed. The Geneva Convention, for example, was written with traditional conflicts in mind -- wars with a clear beginning and end -- and it does not address how government should deal with non-state actors such as "enemy combatants." Finel said that the U.S. must not only figure out what to do with the detainees left in Guantanamo now -- how to try, sentence, continue to detain or release them -- but also must create a more legitimate legal framework for detaining suspected terrorists in the future.

All three policy papers are available on ASP's Web site.