By Jacob Sullum
Writing in The New Republic, Georgetown University law professor David Cole notes that defenders of George W. Bush and civil libertarian critics of Barack Obama tend to agree that there is little difference between our two most recent presidents in the area of counterterrorism policy.
Cole, who has fought the Obama administration in court and is not shy about criticizing its civil liberties record, argues that both camps are wrong, citing several examples of what he believes to be important improvements under Obama:
1. While Bush argued that "neither Congress nor the courts could interfere in any way with how he 'engaged the enemy,'" Obama "has stated that his power to wage the war [on terrorism] stems from the Authorization for Use of Military Force and is subject to the constraints of the courts, Congress, the Constitution, and international law."
Although Obama's lip service to the rule of law was a welcome change from Bush's grandiose claims to unchecked power, I'm not sure how much difference it has made in practice. By the time Obama was running for president, the courts and Congress had made it clear that they planned to check the president's power, whether he liked it or not. "By the end of his term," Cole concedes, "Bush had been compelled to curtail his most aggressive assertions of power. Waterboarding was out, many of the disappeared prisoners had been transferred to Guantanamo and identified, the military commissions had been improved, and courts were reviewing Guantanamo detentions."
Furthermore, Obama's promise to obey the statutes Congress passes is little help when those statutes endorse constitutionally objectionable practices such as warrantless surveillance of communications between Americans and people in other countries. During the Bush administration, Obama condemned that practice as illegal but then voted not only to make it legal but to retroactively protect the companies that facilitated the surveillance from liability for breaking the law.
2. Obama's definition of torture is not as narrow as Bush's.
I think this does count as an improvement, although Congress was already reining in the interrogation practices endorsed by the Bush administration, which (as Cole notes) had been forced to renounce waterboarding.
3. Obama backed the Military Commissions Act of 2009, "which barred the use of involuntary confessions, provided additional independent appellate review, and came close to bringing military commissions into conformity with the due process standards we use in trying our own soldiers."
One consequence of these reforms, Cole notes, was that the evidence barred from the civilian trial of Ahmed Khalfan Ghailani, accused of participating in the 1998 bombings of the U.S. embassies in Kenya and Tanzania, also would have been thrown out if Ghailani had instead been tried by a military commission. But any procedural improvements Obama has supported are overshadowed (to say the least) by the fact that he reserves the right to indefinitely detain defendants like Ghailani (who was convicted on just one out of 285 counts) even if they are acquitted.
4. Obama "ordered the closure of Guantanamo—a promise he has failed to keep not through any fault of his own, but because Congress has barred the expenditure of funds to bring Guantanamo prisoners to the United States."
It is fair to say that Obama's plan to close Guantanamo was frustrated partly by resistance from Congress. But symbolism aside, is the location of detainees the real issue? Shouldn't we be more concerned about whether their detention is appropriate, lawful, and constitutional? Obama not only is unwilling to accept an acquittal as an adequate reason for releasing a defendant; he has said he plans to continue imprisoning an unspecified number of detainees without even going through the motions of a trial. Future detainees may receive similar treatment, at the president's discretion. Under these circumstances, does it really matter whether they serve their de facto life sentences in Cuba or Michigan?
Cole's article—which also includes strong criticism of Obama, especially regarding transparency and accountability—is well worth reading in its entirety. He is right that there are some differences between Obama and Bush in counterterrorism policy, but there is room for disagreement about how significant they are. While I would say there is little difference between Bush and Obama, Cole makes a persuasive case that there is a little difference.