- The Washington Times - Tuesday, May 15, 2012

This month’s revival of terrorism trials at Guantanamo Bay underscores President Obama’s reliance on counterterrorism tools he inherited from George W. Bush.

While Mr. Obama has been a frequent critic of Mr. Bush as a war president, the record shows he has embraced, and even expanded, groundbreaking policies and operational techniques — from increased government surveillance to enhanced special operations — left by his predecessor.

Bush administration alumni are arguing that the anti-terror measures they created in the hectic first years after the Sept. 11, 2001, attacks have stood the test of time.

“President Obama and members of his team criticized severely a number of aspects of the Bush administration’s war on terrorism that they have since found it necessary and useful to embrace,” said Douglas Feith, the Pentagon’s top policymaker in those early war years.

Mr. Feith said one of the most important concepts came as the Pentagon and World Trade Center still smoldered.

Mr. Bush’s declaration that “this is war” — not a law enforcement exercise — has been employed in key Obama strategy documents and is used as a legal basis to assassinate terror suspects via airstrikes and to hold them indefinitely.

At first, the Obama administration shunned the terms “war,” “war on terrorism” and “global war.” John Brennan, the president’s chief counterterrorism adviser, said in Mr. Obama’s first year in office that the word “war” only applied to al Qaeda and its allies.

The Washington Post unearthed an internal memo that asked agencies to refrain from using the terms “long war” or “global war on terror.” “Please use ‘overseas contingency operation,’ ” the memo said.

But that distinction seems to be missing from subsequent declarations. When Attorney General Eric H. Holder Jr. justified assassinating Anwar al-Awlaki, a U.S. citizen in Yemen, he said: “We are at war with a stateless enemy, prone to shifting operations from country to country.”

The ‘at war’ distinction

Mr. Obama’s first extensive military strategy, the Pentagon’s 2010 Quadrennial Defense Review, states in the opening paragraph: “We are a nation at war.”

“The most significant thing Bush did in reaction to 9/11 was saying this cannot be handled as we handled previous terrorists attacks, as a law enforcement matter,” Mr. Feith said.

“He launched what he called the ‘war on terrorism,’ and as we know, that idea [that] we were at war was intensely criticized. But this administration, [in] their statement of defense strategy, they start off saying, ‘We are a nation at war.’ So it’s very interesting that Obama has not only endorsed it but highlighted the idea we’re at war.”

P.J. Crowley, a National Security Council aide to President Clinton and former spokesman for Secretary of State Hillary Rodham Clinton, said Mr. Obama has made “very real” changes in how Mr. Bush approached the war.

“Tiger Woods and I play the same game, but we don’t play it the same way,” Mr. Crowley said. “We are not at war with terrorists. We are at war with a specific network, al Qaeda.

“That is an important distinction between the way in which President Bush conceptualized the challenge and President Obama,” he said. “One formulation is a war without end. You cannot defeat a tactic.”

Examples of Mr. Obama, now in his fourth year as president, adopting Bush-era measures:

• Special operations forces. One of the first steps taken by Defense Secretary Donald H. Rumsfeld after Sept. 11 was to revive, fund and expand special operations forces as the dog that would hunt down and kill terrorists.

Mr. Rumsfeld also made U.S. Special Operations a war-independent command, just like U.S. Central Command, meaning it could plan and execute its own battle plans.

The U.S. Joint Special Operations Command (JSOC), the Army’s Delta Force and Navy’s SEAL Team 6 mostly had focused on hostage rescue. After Sept. 11, they started receiving the manpower and intelligence to become manhunters. Their biggest successes: Saddam Hussein; al Qaeda’s top Iraq terrorist, Abu Musab Zarqawi; and Osama bin Laden.

• Special Ops/Intelligence. The Bush administration fused commandos with the nation’s intelligence agencies — the CIA, the National Security Agency and the Defense Intelligence Agency — into task forces in Iraq and Afghanistan.

Mr. Rumsfeld transferred a highly secretive military intelligence unit, which specialized in technical surveillance and intercepts, to the Joint Special Operations Command so that commandos and intelligence experts could work together directly.

• Predator strikes. The Bush administration established Predator drone bases in Pakistan to strike at al Qaeda and Taliban extremists in that country’s frontier badlands, where U.S. ground troops cannot go.

A similar drone operation was set up in Yemen.

Mr. Obama has expanded the use of Predator strikes.

• Horn of Africa. In one of the first decisions to permanently position U.S. forces in an al Qaeda stomping ground, the Bush Pentagon established the Combined Joint Task Force — Horn of Africa. It rebuilt an old French outpost into a modern, 500-acre military base in Djibouti.

The only U.S. base in Africa, it has been a launching site for missions into Yemen and Somalia as a bulwark against al Qaeda. It also is a base for special operations to train North African and Horn of Africa security personnel in counterterrorism and counterinsurgency.

• Terrorist Surveillance Program. Mr. Bush authorized a new eavesdropping program designed to capture communications from terrorists abroad to subjects in this country or that pass through switching points to other suspects abroad.

Stressing that trapping such communications was urgent to stop a possible attack, the Bush administration did the wiretaps first, then sought approval from a special federal court. Liberals derided the program as illegal, and some said Mr. Bush wanted to listen in on average Americans’ conversations.

Congress voted in 2007 and 2008 to authorize the basic program, and the courts upheld it.

• Terrorist Finance Tracking Program. Another counterterrorism effort begun by Mr. Bush, this measure was designed to stop funding of al Qaeda and other militant groups and to locate terrorists. The U.S. Treasury and the CIA tap into databases for global financial transactions.

Stuart A. Levey, the first undersecretary of Treasury for terrorism and financial intelligence, was instrumental in setting up the surveillance. He was kept on in that post by the Obama administration for two years.

• Patriot Act. The law, signed by Mr. Bush a month after 9/11, gave the federal government wide authority to penetrate and stop terror plots in this country via surveillance and communications intercepts.

President Obama signed a four-year Patriot Act extension in May 2011.

• Military commissions. At the U.S. naval facility at Guantanamo Bay, Cuba, Mr. Bush set up a prison and war crimes tribunals for terror suspects and enemy combatants.

After starts and stops in the courts and redrafting of authorizing legislation by Congress, the commissions now have legal backing.

As a presidential candidate, Mr. Obama railed against the prison and the commission system, implying they were outside the Constitution.

Mr. Obama said: “And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims.’ “

But this month, hearings that will lead to trials for self-proclaimed 9/11 mastermind Khalid Shaikh Mohammed and four of his associates began at Guantanamo.

The Obama administration has opted to try the suspects there after failing to get the proceedings moved to the civilian court system in New York City in the wake of vociferous local opposition.

Mr. Crowley notes that although the Obama administration has returned to the commission system, it has made significant changes. Evidence gleaned through what the Bush administration called enhanced interrogation techniques, including waterboarding, will not be allowed at trial.

“The military commission that opened weeks ago is very different than the one that opened years ago,” he said.

• Detention. Mr Bush decided early on that terror suspects could be held indefinitely as enemy combatants under a broad Authorization for the Use of Military Force resolution enacted by Congress in 2001.

The Obama administration, like the Bush team, has cited that law to justify indefinitely holding Guantanamo detainees and those in prisons in Afghanistan.

Harold Koh, Mrs. Clinton’s top legal adviser, said in a March speech: “As a nation at war, we must comply with the laws of war, but detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict.”

What’s more, a year before Mr. Koh’s speech, Mr. Obama issued an executive order that asserted that same authority.

“Continued law of war detention is warranted for a detainee subject to the periodic review in Section 3 of this order if it is necessary to protect against a significant threat to the security of the United States,” the president said.

Said retired Air Force Brig. Gen. Thomas Hemingway, who served as legal adviser to the Pentagon’s commissions office: “In terms of that position, they’re in the same boat as the Bush administration.”

Mr. Obama signed a law in December that explicitly authorizes indefinite detention of American citizens.

Obama officials have not said explicitly if they would release Mohammed if he is acquitted at trial.

“A lot of the critics of the Bush administration were denouncing the idea we were holding people indefinitely without trial because we were holding them as detainees in a war,” Mr. Feith said.

“This administration, in various statements and submissions by the Justice Department in court, has said that it is lawful to hold people indefinitely without trial.”

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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