Wall Street Journal (March 18, 2010)

Liz Cheney's Big Question –

Is the Obama administration on the right side of national security?

At the end of the street fight the lawyers' tongs had over Liz Cheney's "Al-Qaeda Seven" TV ad, we've agreed that common criminals have the right to an attorney. Thank heavens for that. The real question the ad raised was bigger than that: Is the Obama administration on the right side or wrong side of national security? That anyone should ask suggests a problem.

Hard as it is for some to believe, they do get some things right. The Afghan surge was the right call. The drone war is killing enemy without apology. Little noticed, the Holder Justice Department's attorneys have defended the Bush warrantless wiretap policy—in a long-running lawsuit in San Francisco's Ninth Circuit, and last month before the Third Circuit in Philadelphia, involving the tracking of cellphone locations.

And yet . . .

It is impossible to separate the good things done by a surprisingly good national security team, mostly overseas, from the actions and public statements on fighting terror at home by the men at the top: President Obama and Attorney General Holder. Every call seems to be a jump ball—closing Guantanamo, trial venues, reading airline bombers their Miranda rights.

This is an inefficient and dangerous way to run an antiterror bureaucracy that needs clarity and consistency.

The fog moved in early. Last March they rebranded the "war on terror" as "overseas contingency operations." Then came the "civilian" trial for 9/11 mastermind Khalid Sheikh Mohammed, which even hyper-liberal Manhattanites couldn't take, no matter the assurances about the need to rediscover "our values."

In September seven former CIA directors, citing Agency morale, asked Mr. Obama to shut down Attorney General Holder's criminal probe of the CIA terrorist interrogators. Mr. Obama dismissed the appeal in a "Face the Nation" interview, asserting "nobody's above the law."

It is surely true, in theory anyway, that lawyers who argued on behalf of Gitmo detainees in the past can argue for more limited rights when working for the government. Before he became Mr. Obama's deputy solicitor general, Neal Katyal argued the pro-detainee case in Hamdan v. Rumsfeld before the Supreme Court. Two months ago, he stood before a D.C. appeals court to argue against detainee habeas corpus rights at Bagram Airfield base in Afghanistan.

The tumult over Liz Cheney's Keep America Safe ad is being spun as a defeat for Dick Cheney's criticism of the Obama terror policies. Agence France-Presse: "A witchhunt orchestrated by George W. Bush supporters . . . has backfired." We'll see about that.

This fight reminds me of an earlier, similar war—the war on crime. The lawyers took over that fight, too, waging it inside an extreme-fighting cage known as the Fourth Amendment, with its now-famous exclusionary rule for police searches.

Ultimately it was voters inside polling booths, not lawyers, who settled that fight.

After the Supreme Court's restrictive police-search decisions in the 1960s, Richard Nixon rode "law and order" into the White House in 1968. Liberals got into trouble during the law and order years because their views on crime seemed an abstraction, elegantly argued but oblivious to the lives of innocent people on the street.

I'm convinced the reason liberal New York City re-elected Rudy Giuliani and then Mike Bloomberg twice was mainly to continue the 1990s' no-nonsense policing program of Commissioners William Bratton then and Ray Kelly now. The comfort level on the streets is the city's No. 1 issue, each day. After 9/11, that's true everywhere in the U.S.

Whether the wolf at the door is a common criminal or a foreign-trained terrorist, the legal issue at the level of the voting booth is simple: Where along the spectrum of personal safety do I and my family feel comfortable? On this score, the incoherence of the Obama administration's policies on domestic terrorism, detainees and military tribunals unsettles people. When they felt this way about personal safety in the 1970s and '80s, their votes for "law and order" candidates were an attempt to restore balance. It worked. The Supreme Court narrowed the 1960s' most expansive interpretations of defendants' rights.

Barack Obama's handling of terror is a voting issue. Republican candidates should put it before voters this November and in 2012. Looking at the failed Christmas airliner bombing, the aggressive recruitment of home-grown jihadis and the aborted Najibullah Zazi bombings in New York City, I'd say establishing a policy of coherence and constancy in meeting this threat is more urgent than the health-care odyssey Mr. Obama has forced on us for a year.

Whatever one thinks of Liz Cheney's TV ad, it asks one big question: Is the legal mindset of the lawyers she criticized naively expansive and dangerous, just as it was on domestic crime 30 years ago? Let the voters decide.

If GOP candidates are looking for a way to talk about this in terms voters will get, put it this way: You look at the Obama team's views on terrorism and the law, from the top down, and then ask yourself, Are they going to protect us 24/7 . . . or not? That's one question you never had to ask about John Yoo.