Obama is continuing essentially without change 8 of 11 Bush national security policy elements (generally reversing hiw own campaign promises in doing so).
Of the three policy elements changed (closing Gitmo, abandoning secret overseas prisons, and CIA interrogation policy), on two of them he has either left a loophole or has commissioned a study which will likely change CIA interrogation policies again.
The TNR writer argues Obama will do basically what Bush was doing only better. One asset Obama may have is that Democrats and the media may not undercut his policies like they did with Bush.
tnr.com
The Cheney Fallacy
by Jack Goldsmith
Why Barack Obama is waging a more effective war on terror than George W. Bush.
Post Date Monday, May 18, 2009
Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.
The Bush approach to counterterrorism policy included eleven essential elements. Here is the Obama position to date on each.
1. War v. Crime
A bedrock Bush principle was that the threat posed by al Qaeda and its affiliates required the president to assert military war powers. The legality of controversial policies like military detention, military commissions, and targeted killings depends in the first instance on the United States being in a state of war. Many Obama supporters and most allies sharply disagree with the war characterization, and maintain that the criminal justice system--arrest, extradition, civilian trials, and the like--suffices to meet the terror threat. President Obama mostly skirted this issue on the campaign trail. But his administration has embraced the Bush view that, as a legal matter, the United States is in a state of war with al Qaeda and its affiliates, and that the president's commander-in-chief powers are triggered. This position should be unsurprising: Congress has made clear that we are at war with these groups, and the Supreme Court has affirmed that we are.
2. Guantanamo Bay
President Obama has announced that he is closing the detention facility at Guantanamo Bay, Cuba. By itself, this is not a departure from the Bush administration, which also stated a desire to close GTMO. The new administration is implementing this policy with greater vigor, however, and is seriously considering bringing terrorist detainees to the United States. Congress and our allies are throwing up roadblocks to these efforts. Even if the administration overcomes them, closing GTMO may have no material impact on U.S. detention practice. Because the Supreme Court has ruled that habeas corpus rights extend to detainees on the island, the detainees will likely receive no more rights on U.S. soil than in Cuba. The real question is not where the detainees are located, but rather the basis for their detention. On this issue, as explained below, the new president is swimming close to the old one.
3. Military detention
Many Obama supporters thought he would oppose the detention of terrorist suspects without trial. But not so. Last month Secretary of Defense Gates hinted that up to 100 suspected terrorists would be detained without trial. And a few weeks ago the Obama Justice Department filed a legal brief arguing that the president can detain indefinitely, without charge or trial, members of al Qaeda, the Taliban, "associated forces," and those who "substantially support" these groups, no matter where in the world they are captured. Federal district court judge Reggie Walton correctly noted that the Obama administration refinements drew "metaphysical distinctions" with the Bush position that seemed to be "of a minimal if not ephemeral character." The Obama refinements might preclude detention of some suspected terrorists who would be detainable under the Bush regime, but only at the margin. The core Bush legal position remains in place.
4. Habeas Corpus
During the campaign former professor Obama spoke eloquently about the importance of habeas corpus review of executive detentions of enemy soldiers. Habeas corpus is "the foundation of Anglo-American law" and "the essence of who we are," he said. But his administration has applied this principle in the same narrow fashion as the late Bush administration. It has argued that Guantanamo detainees can challenge the "fact, duration, or location" of confinement on habeas review, but not their "conditions of confinement." It has maintained that "the Geneva Conventions are not judicially enforceable by private individuals" in habeas proceedings. And it has made clear its belief that the limited habeas rights it recognizes for the two hundred or so detainees on Guantanamo Bay do not extend to the 600 or so detainees in Bagram Air Base. This latter position might prove more controversial for President Obama than for President Bush. The new president's enlarged military commitment in Afghanistan and Pakistan, combined with the forthcoming closure of Guantanamo, means that the number of suspects detained in Bagram--without charge or trial and without access to lawyers or habeas rights--is likely to increase, perhaps dramatically.
5. Military Commissions
On his first day in office, President Obama sought a 120-day suspension of military commissions that many viewed as their death knell. But last week the Obama administration said it would revive military commissions. The main impetus for this decision, according to The Washington Post, is that the new administration, like its predecessor, concluded that its cases "would fail in federal courts or in standard military legal settings." The new commissions rules have not been published but they will apparently disallow evidence obtained from coercion, admit hearsay only if it is reliable, and give detainees more freedom to choose their attorneys. These are not large changes from the Bush rules as they stood in 2008. Under the Bush regime military judges could and did suppress evidence obtained from coercive interrogations (though not to the same degree as they will be able to do under Obama) and declined to admit unreliable hearsay. And the Obama alteration on defense lawyers does not appear substantial. So, if we map the distance between the rights that suspected terrorists would receive under Bush military commissions and the rights they would receive in civilian trials, suspects tried in Obama military commissions gain relatively little from the Bush baseline.
6. Targeted Killing
Targeted killing is another Bush administration policy being continued, and indeed ramped up, by President Obama. The new administration has used unmanned predator drones to kill suspected al Qaeda targets in Afghanistan and Pakistan at a greater rate than the Bush administration. These more aggressive targeted killings have predictably caused more collateral damage to innocent civilians. In what appears to be the worst episode since 9/11, a predator attack earlier this month killed many dozens of civilians, including many women and children, in the Farah province of Afghanistan. The targeted killing policy has grown very controversial in Afghanistan and among human rights groups. The International Committee of the Red Cross maintains that international law permits targeting only of people "continuously" engaged in hostile actions, and that only "necessary" force can be used against them. This standard would require a significant rollback of the Obama targeted killing program. It is thus not surprising that the Obama State Department views the Red Cross restrictions as "problematic."
7. Rendition
The Obama administration has said that it will continue renditions--the practice, dating back at least to the Clinton administration, of grabbing suspected terrorists in one country and bringing them to another. CIA director Panetta has said that the Obama administration will not render suspects for purposes of torture, and many have seen this position as a rejection of the Bush form of rendition. But despite this rhetoric, the Obama administration will continue to use the Bush-Clinton standard of foreign country assurances concerning torture, a standard that prohibited rendition only when it is "more likely than not"--that is, a greater than 50 percent chance--"that the suspect will be subjected to torture." Because the public knows little about the rendition practice, it is unclear how, if at all, the practice will change under Obama. But the core legal standard articulated by the new administration appears to be the same as its predecessor.
8. Secret Prisons
While the Obama administration has not rejected rendition to third countries, it has dismantled the Bush system of secret overseas prisons (so-called "black sites") and thus has eliminated rendition to and detention in these prisons. Although the Bush administration used these facilities little in recent years, this seems like a departure from the Bush era. But even here the Obama practice may be closer to the late Bush practice than meets the eye. President Obama's executive order barring the CIA from using "detention facilities" contained a loophole for "facilities used only to hold people on a short-term, transitory basis." The degree to which the Obama policy is a true departure from the late Bush practice thus depends on the administration's (probably secret) interpretation of what it means to detain someone on a "short-term, transitory basis."
9. Surveillance
In the summer of 2008, candidate Obama voted to put President Bush's unilateral warrantless wiretapping program, which he had opposed as an abuse of presidential power, on a legally more defensible statutory basis. Obama supported the bill even though it gave telecommunication firms that cooperated with President Bush immunity from lawsuits, a provision Obama disliked. In office, President Obama has not renounced or sought to narrow any of the surveillance powers used by the late Bush administration, and has not sought legislation to reverse the telecom's immunity. Nor has he yet acted to fulfill his campaign pledge to significantly strengthen the Privacy and Civil Liberties Board that oversees and protects civil liberties in intelligence gathering. The Obama surveillance program appears to be identical to the late Bush era program.
10. State Secrets
The state secrets doctrine allows the government to prevent the disclosure of evidence in court based on its view that the disclosure would endanger national security. Candidate Obama criticized the Bush administration's use of this doctrine. But in at least three lawsuits growing out of Bush-era surveillance and rendition practices, the Obama Justice Department endorsed the same broad view of the state secrets privilege as the Bush administration. President Obama said last month that "the state secret doctrine should be modified" to make it a less "blunt instrument," and his lawyers are seeking ways to narrow the doctrine in some cases. But it is unclear how far this initiative will go, and in any event for now the Obama position is the Bush position.
11. Interrogation
On his first day in office President Obama signed an executive order requiring the CIA to use only the relatively benign techniques approved by the military field manual. He later released and rejected Department of Justice legal interpretations of the Torture statute and related laws. This is a large change in announced policy from the Bush administration, and the change that the former Vice President seems to like least. But it is less of a departure from the late Bush practice than meets the eye. Several reports suggest that a 2006 Supreme Court ruling, legislation concerning interrogation that same year, and growing public opprobrium led the Bush team, by 2007, to narrow the range of CIA-approved interrogation techniques, especially as compared to 2002-2003. Moreover, the Obama executive order established a task force to study whether the CIA should be able to use different interrogation techniques than the military, and CIA Director Panetta supports tougher interrogation techniques for his agency in some circumstances. As a result, the jury is still out on the differences between CIA interrogation techniques used during the late Bush administration and those ultimately used by Obama's CIA.
The Obama administration is still debating many of these issues, and its final policies are not all set. Its changes to Bush practices thus far--cutting back on secret detentions, probable new restrictions on interrogation, and relatively small procedural changes to military commissions--will leave some suspected terrorists in a better place than they would have been under the Bush regime (although Obama's increase in targeted killings will likely result in more deaths and injuries, without due process, to terror suspects and innocent civilians). Even with these caveats, at the end of the day, Obama practices will be much closer to late Bush practices than almost anyone expected in January 2009. Why has this happened, and what does it mean?
One reason the Obama practices are so close to the late Bush practices is that the late Bush practices were much different than the early ones. In 2001-2003, both fear of terrorism and Bush unilateralism were at their height. But in the last six years, the terror threat has appeared to fade (at least to the public), and Congress and the courts have engaged on terrorism issues, pushing back on some, approving others, and acquiescing in yet others. Congress altered somewhat and then approved the early Bush approach to surveillance, military commissions, and military detention. Rendition and targeted killings have gone on for over a decade without congressional pushback. Congress and the courts restricted permissible interrogations. Some courts have approved the state secrets doctrine as well as military detention without trial. The Supreme Court declared that a portion of the Geneva Conventions applies to the conflict with al Qaeda and rejected early Bush positions on the scope of habeas corpus. In these and many other ways, U.S. terrorism law looked wholly different at the outset of the Obama administration than in 2001-2003. The law was much clearer in 2009, and there was much greater consensus--across political parties and the branches of government--about permissible policies and their limits. Many Obama policies reflect that consensus.
The Obama policies also reflect the fact that the Bush policies were woven into the fabric of the national security architecture in ways that were hard if not impossible to unravel. The new administration would not face the difficulties of closing GTMO if GTMO had not been used as a detention facility in the first place. It would have an easier time prosecuting some terrorist suspects in civilian courts had information about their crimes not been extracted through coercion (assuming, that is, that it would have nabbed the suspects in the absence of the information gained through coercion). And so on. It is impossible to know how an Obama (or any other) administration would have dealt with the manifold terrorist challenges beginning on 9/11, or how the world might look different today if the Bush administration had made different decisions. But no doubt some of the Obama agreement with Bush policies reflects the fact that Obama inherited challenges that were created by decisions with which he would not have agreed.
A third reason for the closeness of the Bush and Obama policies is that many of the Bush policies reflect longstanding executive branch positions. Every wartime president has asserted the right to detain enemy forces without charge or trial during war. Many of them used military commissions for war criminals. Presidents dating back at least to Carter have maintained that habeas corpus review does not extend to aliens detained outside the United States. The state secrets doctrine is over a century old and has been employed vigorously by presidents since the 1970s. Rendition and targeted killings began under Clinton if not earlier. It is no surprise that President Obama seeks to maintain these presidential powers. It would be a surprise if he did not do so.
A final explanation for the congruence between Obama and Bush policies is that governing is much harder than campaigning. The presidency invariably gives its occupants a sober outlook on problems of national security. The "responsibilities placed on the United States are greater than I imagined them to be, and there are greater limitations upon our ability to bring about a favorable result than I had imagined them to be," said President John F. Kennedy, nearly two years into his presidency. "There is such a difference between those who advise or speak or legislate, and between the man who must select from the various alternatives proposed and say that this shall be the policy of the United States. It is much easier to make the speeches than it is to finally make the judgments."
President Obama has gone from a legislator and presidential candidate to the commander in chief wholly responsible for the nation's safety. He now reads the same threat reports as President Bush and confronts the same challenge of stopping Islamist terrorists who hide among civilians and who want to use ever-smaller and more deadly weapons to disrupt our way of life. He also faces the same paucity of truly useful information about the enemy and the same hard tradeoffs between liberty and security. And he knows that the American people will blame him and no one else if the terrorists strike. "The whole government is so identified in the minds of the people with [the president's] personality," said William Howard Taft, "that they make him responsible for all the sins of omission and of commission of society at large." The intense personal responsibility of the president for national security, combined with the continuing reality of a frightening and difficult-to-detect threat, has unsurprisingly led President Obama, like President Bush, to want to use the full arsenal of presidential tools.
The main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues.
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Jack Goldsmith, a professor at Harvard Law School and a member of the Hoover Institution Task Force on National Security and Law, was an Assistant Attorney General in the Bush administration and is the author of The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton 2007). |
