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Biden and Cheney Clash Over Terror Trial Policy

February 15, 2010 at 12:00 AM EDT
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Vice President Joe Biden and former Vice President Dick Cheney sparred in separate Sunday talk show appearances over whether terror suspects should be tried in civilian courts or treated as "enemy combatants" under military authority. Gwen Ifill talks to experts for insight.

JUDY WOODRUFF: That follows our look at counterterrorism policy in the U.S. How much has changed between this White House and the last?

We begin with some background on yesterday’s dueling television appearances by officials from both administrations.

On Valentine’s Day morning, there were plenty of arrows flying across the talk shows…

U.S. VICE PRESIDENT JOSEPH BIDEN, Vice President of the United States: Dick is trying to rewrite history.

JUDY WOODRUFF: … but little love lost between the sitting vice president and his immediate predecessor.

DICK CHENEY, former vice president of the United States: That’s dead wrong.

JUDY WOODRUFF: Joe Biden and Dick Cheney engaged in a virtual vice presidential debate Sunday morning arguing over their administration’s approaches to fighting terrorism and whether the federal courts are the right venue for prosecuting accused terrorists.

Cheney, in the year since he left office, has been by far the most vocal member of the Bush White House, repeatedly accusing the Obama team of endangering the nation. Biden leveled a preemptive rebuttal on NBC’s “Meet the Press,” part of a new offensive approach by the Obama White House to take on its critics.

First, he described how they have taken the fight to al-Qaida.

JOSEPH BIDEN: We’ve eliminated 12 of the top 20 people, we have taken out 100 of their associates, we are making — we’ve sent them under ground.

They are, in fact, not able to do anything remotely like they were in the past. They are on the run. I don’t know where Dick Cheney has been. Look, it’s one thing, again, to criticize. It’s another thing to sort of rewrite history. What is he talking about?

JUDY WOODRUFF: Cheney responded in an interview on ABC’s “This Week” conducted by Jonathan Karl.

JONATHAN KARL, ABC News: They say that they are actually dedicating more resources to the fight against al-Qaida than you were.

DICK CHENEY: Well, I — you know, I’m a complete supporter of what they’re doing in Afghanistan. I think the president made the right decision to send troops into Afghanistan. I thought it took him a while to get there.

JUDY WOODRUFF: While lauding the Obama White House’s Afghan policy, he blasted some individual moves.

DICK CHENEY: But I do see repeatedly examples that there are key members in the administration, like Eric Holder, for example, the attorney general, who still insists on thinking of terror attacks against the United States as criminal acts, as opposed to acts of war. And that’s a — that’s a huge distinction.

ERIC HOLDER, U.S. attorney general: They will be brought to New York, to New York, to answer for their alleged crimes in a courthouse just blocks away from where the Twin Towers once stood.

JUDY WOODRUFF: It was Attorney General Eric Holder who decided last fall to move the self-proclaimed mastermind of 9/11, Khalid Sheikh Mohammed, out of the military tribunal system at Guantanamo and into the federal civilian courts.

But pushback from New York officials and pressure from Congress has put that decision in doubt, a reality Biden acknowledged on CBS’s “Face the Nation.”

JOSEPH BIDEN: That creates a political dimension in the sense that the Congress can control the cost and the purse strings of how much money we have to try this case.

So that’s the only reason why the president is taking it under consideration. The president is now waiting for a recommendation from the attorney general to see, after review, whether we have the option to continue there or have to consider another option.

JUDY WOODRUFF: Distinctions also arose over the alleged Christmas Day bomber, who is presently being held in federal custody, a decision Cheney derided.

DICK CHENEY: The proper way to — to deal with it would have been to treat him as an enemy combatant. I think that was the right way to go.

The thing I learned from watching that process unfold, though, was that the administration really wasn’t equipped to deal with the aftermath of an attempted attack against the United States in the sense that they didn’t know what to do with the guy.

JUDY WOODRUFF: Cheney advocated the use of military tribunals.

Biden, on “Meet the Press,” said the civilian system had better results.

JOSEPH BIDEN: The Christmas day bomber was treated the exact way that he suggested that the shoe bomber was treated, absolutely the same way.

Under the Bush administration, there were three trials in military courts. Two of those people are now walking the streets. They are free.

There were 300 trials of so-called terrorists and those who engaged in terror against the United States of America who are in federal prison and have not seen the light of day, prosecuted under the last administration.

Dick Cheney’s a fine fellow. But he is not entitled to rewrite history without it being challenged. I don’t know where he has been. Where was he the last four years the last administration?

JUDY WOODRUFF: More often than not, Cheney said he was looking to hold prisoners either indefinitely or for military trial. He did, however, acknowledge how difficult the questions are surrounding trying terrorists.

DICK CHENEY: We never thoroughly or totally resolved those issues. These are tough questions, no doubt about it.

JUDY WOODRUFF: Cheney shed new light on divisions within his own administration, especially during the second Bush term, over dealing with terror suspects and the use of controversial torture techniques. Again, he said he preferred a war footing to crime-fighting.

DICK CHENEY: And I do get very nervous and very upset when that’s the dominant approach, as it was sometimes in the Bush administration, or certainly would appear to be at times in the new Obama administration.

JONATHAN KARL: Did you more often win or lose those battles, especially as you got to the second term?

DICK CHENEY: Well, I suppose it depends on which battle you’re talking about. I won some. I lost some.

JUDY WOODRUFF: Among those battles, Cheney said he unsuccessfully opposed efforts to end water-boarding in the latter part of the Bush administration.

GWEN IFILL: So, for more on the nation’s terror policies under Presidents Bush and Obama, we’re joined by Juan Zarate, who served as President Bush’s deputy national security adviser for combating terrorism. He’s now with the Center for Strategic and International Studies, and he is also a consultant for CBS News. And David Cole, author of the book “The Torture Memos: Rationalizing the Unthinkable,” he’s a professor of law at Georgetown University.

Welcome to you both.

Juan Zarate, starting with you, help people understand the distinction between what Vice President Cheney was saying, former Vice President Cheney, and what current Vice President Biden was saying.

JUAN CARLOS ZARATE, Center for Strategic and International Studies: I think what you see at play, Gwen, is a grand debate about, not only the past, but current counterterrorism policies.

And I think a lot of the confusion and a lot of the fire around this debate stems from a bit of histrionics around what is really at play. I think — and I have argued since I left the Bush administration — that we were likely to see fundamental continuity in our counterterrorism policies.

And I think, for the most part, that is what we have seen. The problem with that is, that has not matched the political rhetoric and, frankly, the requirements of this administration to appear to have been tacking against the past.

And, so, the decisions that have proven most controversial and confusing for the Obama administration, the Khalid Sheikh Mohammed trials in civilian courts, the closure of Guantanamo by a date certain, new interrogation policies, has led to some confusion, because the Obama administration continues many of the same policies, talks about a war on al-Qaida, but is trying to demonstrate a difference.

And it’s in that gray zone that you have a lot of confusion and a lot of this debate.

GWEN IFILL: David Cole, we’re talking about fundamental continue, as Juan Zarate says, or are we talking about a big distinction between what the two vice presidents meant and what they said?

DAVID COLE, professor of law, Georgetown University Law Center: Well, I think there is a big difference in that the Bush administration really sought to fight the war on terror “Outside the Law,” thrusting the rule of law to the side as an obstacle to be evaded by disappearing people into black sites, by reading a ban on torture to permit torture, by putting people at Guantanamo and arguing that no rights apply there, by arguing that the laws of war don’t apply.

I think the Obama administration is continuing to fight a war, and it is also continuing to use criminal measures, just as the Bush administration did. But the big difference is that the Obama administration is seeking to do that within the frame of the rule of law.

It has ended torture. It has closed the black sites and ended the practice of disappearances. It has committed to closing Guantanamo. And it has said that it will attempt to try as many people as it can in the criminal courts. But it’s still using military measures as well.

And, as Vice President Biden said, it has killed 12 of al-Qaida’s 20 top people since it has come to power.

GWEN IFILL: Go ahead.

JUAN CARLOS ZARATE: When I was — I would agree with David if we were talking about 2002-2003.

But I think what we have seen — and including Vice President Biden agreeing to this — the second term of the Bush administration actually saw a real evolution of our counterterrorism policies. We know that water-boarding was ended in 2003. The CIA sites were, in essence…

GWEN IFILL: Even though Vice President Cheney said he still favored it.

JUAN CARLOS ZARATE: Even though he favored it, exactly. The black sites that David refers were, in essence, shut in 2006 — President Bush gave a very big speech in September of that year — transferring those detainees to Guantanamo.

President Bush in 2006 said he wanted to close Guantanamo. And this is all, I think, corroborated by the fact that the administration is now, in defense of its own policies, pointing to the very continuity, the fact that the prior administration released detainees, used the criminal legal system, and engaged in some of the very same practices that the Obama administration is.

GWEN IFILL: Let me ask you, David Cole, about one of the specific issues which come up time and time again in these debates, and that’s about the handling of the suspected Christmas Day bomber, Abdulmutallab, and how that compares to Richard Reid, the shoe bomber, who also was read his rights before he was arrested and was taken to civilian trial.

Now, a lot of people disagree with the way the Obama administration has handled this latest one, even though it looks, at least on the surface, very similar.

What — how do you see it?

DAVID COLE: Well, identical, in fact, Richard Reid prosecuted in criminal court and spending the rest of his life in jail. Abdulmutallab will be prosecuted in criminal court and probably will spend the rest of his life in jail, exactly the — the same way.

In fact, the Bush administration tried Zacarias Moussaoui in criminal court. It tried Jose Padilla, the alleged dirty bomber, in criminal court. It tried Mr. al-Marri, who was alleged to have been sent here on September 10 by al-Qaida to do a follow-up attack, in criminal court.

So, there, I think both the Bush administration and the Obama administration — administration have sought to use the criminal route when they can, and particularly with respect to domestic incidents.

And, so, I don’t think there’s a real departure here. The only departure is in rhetoric on the Republican side.

GWEN IFILL: And rhetoric on the Democratic side as well?

JUAN CARLOS ZARATE: Well, I think so.

Again, I think part of the problem has been the Obama administration’s instincts to try to tack against the past. And the reality is that there has been continuity. And David just demonstrated and talked about some of it, including some things that have been considered and were campaigned against, things like rendition, preventive detention, the use of the ability to kill al-Qaida figures across the world.

These are things that the Obama administration not only continuing, but, in some cases, touting. We saw the president touting numbers at the State of the Union with respect to killed al-Qaida members in 2009 vs. 2008.

So, in many ways, the Obama administration has wanted to have it both ways. They want — they want to demonstrate that they are strong on the war or terror, want to argue that there is continuity. At the same time, they want to demonstrate that they are different.

But, at the end of the day, they are not very different from the Bush administration policies that were handed over in 2009.

GWEN IFILL: David Cole, what about that, that targeted attacks, the renditions, they continue?

DAVID COLE: Well, they are not different in terms of using the criminal law to prosecute people within the law.

What they are different, and I think where they have tacked against the past and should tack against the past, is in insisting that, in conducting this war, we’re not going to throw out the rule book. We’re not going to throw out the laws of war. Instead, we’re going to pursue this war within the framework of the laws of war.

And it is important that we distinguish what we are doing now from what we did then, because, remember, what did the Bush administration give us? It gave us Abu Ghraib and Guantanamo, probably the two biggest gifts to al-Qaida and its recruitment program that they ever could have found.

It gave us the war in Iraq, where more people died than on 9/11, and which took our focus off of al-Qaida. I think the Obama administration has said, yes, we’re fighting a war, but it is in Afghanistan. It’s after al-Qaida. It is not in Iraq. And it is not going to use torture. And it is not going to give al-Qaida propaganda boosts and gifts, like Abu Ghraib and Guantanamo.

JUAN CARLOS ZARATE: Gwen, I think what David described is important, but it’s been the problem over the past year for the administration. The rearview mirror approach to looking at what the prior policies were or were not has actually, I think, distracted the administration. I think…

GWEN IFILL: So, let’s look forward. What should the practice — what should the practice be going forward?

JUAN CARLOS ZARATE: I think — to David’s point, I think — absolutely right — we need a consistent, transparent rule-of-law context for dealing with the terrorist threat for the 21st century.

This administration is going to hold people preventatively, without trial, not only in — in civilian courts, but not even in military commissions. What is the legal basis for that? What is the long-term legitimacy for that kind of a program? Congress, the administration need to step up and define that.

We need to talk about this, not in the two-war construct that defines a good war and a bad war, but we have got to view this as a global threat. And I think that was a bit of the wakeup call on December 25, when we saw this threat coming from Yemen. That wasn’t on the radar screen. We had had months of debate about Afghanistan, and not much public discourse about Yemen, Somalia, the Maghreb.

So, we have got to look at this globally. And I think we just — we need to set forth a program that gets at operationalizing what President Obama has done well, in terms of the Cairo speech, reaching out to Muslims, destroying the narrative that the West is at war with Islam.

I think David is right. We have handed the enemy some gifts here in terms of propaganda value. And we have got to make sure we are not doing it in the future.

GWEN IFILL: David Cole, I want you to talk about the future. I also want to tackle this question. Are we talking about nuance here, or are we talking about — nuance in approach, or are we talking about something that is really fundamentally different?

DAVID COLE: I think it’s fundamentally different to say you are going to thrust the law aside, and to say you are going to fight a war and fight terror within the rule of law.

And I think what the Obama administration has shown us — and is struggling with — is that the rule of law permits a state to use serious tactics, to use preventive detention when you are fighting a war, to use targeted killings when you are fighting a war.

But it is doing it within the framework of the rule of law, not arguing that we somehow don’t have to abide by the rules that everyone else did. And what that got us with the Bush administration was the highest levels of anti-Americanism that this world has ever seen. That is not good for our national security.

Obama put a big end to that, and by — by presenting a very, very different front on how we are going to fight this battle in the future.


David Cole and Juan Zarate, thank you both very much.


DAVID COLE: Thank you.