President Barack Obama has taken the right steps on U.S. counterterrorism policy. He committed to close the U.S. detention facility at Guantanamo, Cuba, provide habeas rights to Guantanamo detainees, review military commission trials and restrict harsh CIA interrogation techniques. These steps will help repair the damage done to America's influence by the errors and excesses of the Bush administration. They reaffirm the U.S. commitment to human rights, civil liberties and the rule of law.
In spite of this, Mr. Obama's moves mark less of a sharp break from counterterrorism policies under the Bush administration than one might think. The fight against terrorism is clearly not over: President Obama ordered airstrikes against terrorist targets in Pakistan just one day after the Guantanamo executive order. More important, checks and balances by Congress and the Supreme Court had already forced the Bush administration, during its second term, to rein in many of the most troubling aspects of U.S. counterterrorism policies.
Abusive interrogation techniques of the types employed at Guantanamo and Abu Ghraib have been prohibited by acts of Congress and the Army Field Manual on Interrogations. Supreme Court rulings have concluded that the protections of the Geneva Conventions applied to all U.S.-held terrorism detainees - even those held by the CIA - and have affirmed the statutory and constitutional habeas rights of Guantanamo detainees to challenge the basis of their detention. Congress grounded the Guantanamo military commissions in law in 2006.
What remains to be seen is the strategy Mr. Obama will take in the fight against al-Qaida and how he will answer questions that lack easy answers. Under what legal basis - war or crime - will the U.S. hold future terrorists captured around the globe? After Guantanamo closes, where will terrorists be detained and tried?
As a general rule, terrorists captured in the United States or who are U.S. citizens should be tried in U.S. criminal courts. For foreign terrorists captured overseas, military commissions may remain a viable option. Despite the serious shortcomings of the Bush military commissions, the conviction of Salim Hamdan, Osama bin Laden's driver, suggests that they did not turn into the wildly incompetent or unfair kangaroo courts that critics feared. If Mr. Obama decides to continue using military commissions, he should strengthen mechanisms to ensure that detainees do not face the prospect of indefinite detention without trial or without the ability to challenge the basis of their detention. If he decides to cease using military commissions, the United States could rely on military courts-martial or U.S. criminal courts, or he could turn detainees over to third countries with assurances that they will not be subjected to torture. Another option is for Congress and the president to establish new U.S. national security courts.
Regarding detainee treatment, Mr. Obama eliminated the CIA's separate interrogation regime. Congress should go a step further and explicitly bind the CIA's adherence to established and lawful techniques. Nonetheless, Mr. Obama may preserve flexibility to authorize, in emergency situations, tougher techniques than those allowed in the Army Field Manual - but if he does, he should give congressional leaders a well-defined role in the adoption of emergency measures. Providing flexibility and discretion to the president to keep the nation secure is critical. Embedding the president's flexibility in a framework of cooperation, disclosure and shared responsibility with Congress would strengthen accountability and oversight, ensure that any use of more coercive measures is truly rare, and reduce the risk of errors and abuse.
Even if the substance of Mr. Obama's early counterterrorism moves are less new than they appear, they mark a welcome change of attitude. President Obama seems to understand that U.S. counterterrorism efforts will be more durable if he engages the public, the other branches of government and overseas allies as indispensable partners when the time comes to make the really tough decisions at the intersection of national security and civil liberties.
Daniel B. Prieto, adjunct senior fellow for counterterrorism and national security at the Council on Foreign Relations, is author of the report, "War About Terror: Civil Liberties and National Security After 9/11." His e-mail is firstname.lastname@example.org.