DECEMBER 8, 2010
It is difficult, in these partisan times, to find any common ground in the debate over U.S. counterterrorism policy. But, on one matter, there seems to be almost uniform agreement: that President Obama has largely continued President Bush’s security policies. With the exception of former Vice President Dick Cheney, who faults Obama for suggesting that trying terrorists as criminals may be more appropriate than waterboarding them, everyone from the ACLU to John Bolton appears to agree that Obama has preserved the main features of Bush’s approach to the “war on terror.”
In July 2010, an ACLU report warned that the Obama administration could “enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration.” Liberal pundits and human rights activists frequently echo this message.
Former Bush officials concur—though they cite Obama’s continuity not to criticize it but to vindicate his beleaguered predecessor. Thus, Frances Fragos Townsend, Bush’s homeland security adviser, said in September 2010, “On counterterrorism policy, they found they agree with much of what we did.” Bush CIA Director Michael Hayden, U.N. Ambassador John Bolton, and Homeland Security Department policy chief Stewart Baker have made similar claims.
Even commentators who usually seek to position themselves as moderate by disagreeing with both the left and the right have advanced this view. Former Bush Justice Department lawyer and current Harvard Law Professor Jack Goldsmith wrote in these pages that “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 conclusion has been championed by perhaps the nation’s most influential political observer: In a June “Daily Show” segment on Obama’s views of executive authority, Jon Stewart concluded, “All that power that you didn’t like when someone else had it, you decided to keep it. Oh my God, you’re Frodo.”
Can all these unlikely bedfellows be wrong? In significant measure, they are. Obama has in fact introduced critically important changes in U.S. counterterrorism policy, and these changes merit recognition. Where he has continued Bush’s policies, he has generally sought to remove their most objectionable features in order to conform them to the law. He has, to be sure, fallen regrettably short in certain areas, most notably transparency and accountability. But acknowledging the substantive changes he has made is an important step in ensuring that the mistakes of the Bush administration are not repeated.
When Obama assumed office, he ushered in a markedly different philosophical approach to fighting terrorism. His predecessor claimed absolute, uncheckable power, as commander-in-chief, to disregard the law, arguing that neither Congress nor the courts could interfere in any way with how he “engaged the enemy.” His administration invoked this power to assert the right to violate criminal statutes banning warrantless wiretapping and torture, and to resist all judicial review over Guantánamo detainees. Obama has abandoned such claims. Instead, he has stated that his power to wage the war stems from the Authorization for Use of Military Force and is subject to the constraints of the courts, Congress, the Constitution, and international law.
More importantly, where Bush officials brazenly dismissed law as an inconvenient obstacle and sought to deal with suspects outside the law, Obama has said that the struggle with Al Qaeda must adhere to our nation’s first principles. He argues that the rule of law lends our struggle legitimacy and helps to isolate and defeat our enemies. As he declared in a speech at the National Archives, “time and again, our values have been our most important national security asset.”
This change in philosophy led to substantive changes in policy. In the first year of his administration, Obama closed the CIA’s secret prisons, or “black sites,” ending the Bush administration’s practice of “disappearing” suspects for years. He barred coercive interrogation tactics. And he ordered the closure of Guantánamo—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 Guantánamo prisoners to the United States.
It is true that Obama has continued some of Bush’s most controversial policies, including military commissions and preventive detention without trial. But he has largely stripped these tactics of their most damning features.
Using military commissions to try war crimes arising from an armed conflict is not in itself novel or illegal; we used them at Nuremberg, after all. However, the commissions Bush devised permitted the use of coerced confessions and made the military the prosecutor, judge, jury, and executioner, without independent judicial review. In 2006, the Supreme Court ruled that they violated the Geneva Conventions and the Uniform Code of Military Justice. That year, however, Congress rubber-stamped much of what Bush had done unilaterally, in effect overturning the Court’s decision, and Bush continued to employ fundamentally flawed trials, despite worldwide criticism.
Obama, by contrast, reformed the tribunals by supporting 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. (There are still problems, including their selective application to non-citizens, and Obama is right to prefer trials before civilian courts, but the procedural gaps have been significantly diminished.)
Detaining those fighting against us in an ongoing military conflict is also an established and lawful option. What made Bush’s use of military detention problematic was the system he created. His administration refused to hold hearings to assess whether detainees were fighting against us and authorized unlawful interrogation tactics. He acknowledged no legal limits on his power and opposed all judicial oversight.
Obama continues to employ military detention, but acknowledges that this authority is properly circumscribed by Congress, the laws of war, and judicial review. After a comprehensive review of all detentions, he released more than 60 Guantánamo inmates. He banned abusive treatment and has advanced a more limited definition of who may be detained than did Bush, whose lawyers once contended that if, for example, a Swiss granny donated to a charitable organization, not knowing that it was a front for Al Qaeda, she could be held as an “enemy combatant.”
The Obama administration has even argued that its detention powers should be more constrained than the courts have ordered. When a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in January 2010 that the president’s authority to detain is not bound by the laws of war, the Obama administration argued to the full court that the president’s authority is indeed constrained by those laws. The full court issued a decision upholding the specific detention but rejecting the panel’s prior reasoning as unnecessary to the result.
To be sure, problems remain. The Obama administration has successfully argued that detainees abducted far from the battlefield and flown to Bagram Air Base should receive no judicial review, even though they would be entitled to such review if brought to Guantánamo. There are mitigating factors: A congressional statute barred review, and there is a strong presumption that the executive should defend the validity of a statute unless no reasonable argument can be made in its defense. The Supreme Court, in its Guantánamo cases, carefully limited its holdings to the peculiar circumstances of that island, and the vast majority of Bagram detainees are in fact battlefield captures. Still, the refusal to countenance judicial oversight of potentially lifelong detentions at Bagram undermines the positive changes Obama has made to detention policy.
In addition, the Obama administration has preserved Bush’s expansive approach to penalizing “material support” to organizations and individuals branded as “terrorist.” The government can blacklist organizations without a hearing or trial, freezing their assets and criminalizing all transactions with them. And the Obama administration has adhered to its predecessor’s sweeping definition of “material support,” which includes not only humanitarian aid, but even acts such as writing an amicus brief on behalf of a designated group. The scheme criminalizes speech and association, violates fundamental due process guarantees, and, according to State Department cables recently disclosed by Wikileaks, has done little to stanch financial support for terrorism. Yet Obama has proposed no reforms.
To dismiss the changes Obama has introduced as merely rhetorical, however, as Goldsmith and others have done, is to miss the critical difference between lawless and law-abiding exercises of state power. The Constitution, domestic law, and international law permit democracies to take aggressive action to defend themselves against attacks like the ones we suffered on September 11. But they insist that when the state employs coercion to achieve security, it must abide by rules designed to forestall government abuse and respect human rights. Bush blatantly disregarded this principle; Obama has embraced it.
It is true that, by the end of his term, Bush had been compelled to curtail his most aggressive assertions of power. Waterboarding was out, many of the disappeared prisoners had been transferred to Guantánamo and identified, the military commissions had been improved, and courts were reviewing Guantánamo detentions. But Bush adopted these changes grudgingly, after losing before the courts, Congress, and public opinion. And as the declassified torture memos illustrate, his administration continued to obstinately reinterpret the laws against torture and cruel, inhuman, and degrading treatment in order to permit the CIA to do precisely what Congress, the courts, and international law had forbade. By contrast, Obama has willingly accepted the limits of law.
Critics on all sides undermine their credibility if they fail to acknowledge the significant differences between Obama and Bush. Liberals risk sounding as if no national security policy short of ordinary criminal law enforcement will suffice, while conservatives and moderates appear tone-deaf to the difference that the rule of law makes to the legitimacy of state power. For both advocates of civil liberties and defenders of Bush, it is tempting to accuse the Obama administration of being no better than its predecessor. But if we fail to recognize the changes he has instituted, we run the risk of contributing to a misleading historical narrative that will support future presidents who might choose to repeat Bush’s errors. On issues of executive power, history can play an important role. Even if Obama himself is unlikely to unleash the tactics of the previous administration, a future president might justify doing so by pointing to the fact that observers from across the political spectrum agreed that both Bush and Obama had embraced the same policy.
There are, however, two areas in which Obama has come up painfully short, and that is on issues of transparency and accountability. These failures threaten to undermine the good that Obama has otherwise done, because if U.S. counterterrorism policy is to succeed, it is critical to restore the trust that Bush’s policies so recklessly squandered.
The primary national security challenge that Obama inherited is the deep resentment that Bush’s lawless tactics generated around the world. Just as a coerced confession taints any subsequent criminal trial, Bush’s abuses of the law have compromised the legitimacy of U.S. counterterrorism policy. And while a coerced confession does not bar a prosecution from going forward altogether—see the recent conviction of Ahmed Ghailani for involvement in the bombings of the U.S. embassies in Africa—it does place a heavy burden on the government to show that it is proceeding without relying on illegal conduct. Ghailani was convicted on only one count and acquitted on 284 others, because neither his coerced confession nor evidence derived from it could be used against him. (The same rule now applies in military tribunals—and would have to apply in any proceeding that sought to be called fair—so the result would not have changed had Ghailani been tried militarily.) The problem was not where the case was tried, but the fact that the prosecution was hamstrung by Bush’s decision—proudly admitted in his memoir, Decision Points—to authorize torture as an interrogation tool.
The Ghailani trial is but one example of the wider challenge Obama faces. Bush’s tactics have tainted the entire “war on terror.” The only way Obama can eradicate that taint is to be transparent about the legal authority under which the United States is acting, and to insist on accountability where laws are and were broken.
But Obama has asserted expansive versions of the “state secrets” privilege and other federal immunities to defeat lawsuits seeking redress for torture on behalf of victims of U.S. renditions, including Maher Arar, a Canadian delivered to Syria to be tortured on our behalf, and Binyam Mohamed, a British resident handed off to the Moroccans so that they could torture him. (I represented Arar as a volunteer attorney with the Center for Constitutional Rights.) While there is a legitimate place for secrecy, Obama has successfully argued that these cases should be dismissed even if the victims were willing to proceed without disclosing any confidential documents from the government. Such positions not only let officials get away with past acts of torture, but also risk immunizing future wrongdoers from legal responsibility.
Obama has also cloaked his most controversial tactic in unwarranted secrecy. He has continued Bush’s use of “targeted killings,” dramatically increased the number of drone attacks, and reportedly included a U.S. citizen, Anwar Al Awlaki, on the list of targets. As Jon Stewart said, Obama complained when Bush wanted to read our e-mails without a warrant, but now asserts the right to kill a U.S. citizen, far from any battlefield, without a warrant or hearing, much less a trial. Targeted killing is a permissible tactic in wartime, but its extension far beyond the battlefield raises serious legal and moral questions. State Department legal adviser Harold Koh has said that the current practice is lawful. He may or may not be right. But when Al Awlaki’s father challenged the program in court, the administration successfully argued that the case should be thrown out without assessing the program’s legality. The names on the list are a legitimate secret. But if the president claims the authority to execute Americans without any judicial oversight, surely we the people are entitled to understand the criteria and the process for using such an awesome power before it is exercised.
As his position regarding Bagram illustrates, Obama has also been less than eager to embrace accountability. He took one giant step in that direction when, over extremely strong resistance from the CIA, he declassified and disclosed the shameful Justice Department memos, drafted by John Yoo, Jay Bybee, and Steven Bradbury, that twisted the law to allow the CIA to employ illegal torture and inhuman interrogation tactics. Never before had a president voluntarily revealed such a deeply embarrassing, recently implemented covert program. And Obama did so, he said, “to ensure that the actions described within them never take place again.”
Having taken that bold step, however, Obama has subsequently resisted all other forms of accountability. The Convention Against Torture, a treaty that the United States helped draft and has ratified and implemented in domestic law, legally obligates us to investigate and refer for possible prosecution any credible allegation that a person in our jurisdiction has been involved in torture. We now know that high-level officials, including President Bush himself, authorized torture—in the form of waterboarding, sleep deprivation for up to eleven days, painful stress positions, confinement in small boxes, and physical assaults. Yet the only investigation being conducted today is limited to line-level CIA interrogators who may have exceeded even the cruelty that the president ordered. There is no investigation of those who authorized illegal brutality in the first place.
Other avenues have also been closed. An Obama Justice Department official vetoed a recommendation by the department’s own Office of Professional Responsibility that John Yoo and Jay Bybee, the authors of the first two torture memos, be referred to their state bars for discipline for failing to provide honest legal advice. Obama has rejected the creation of a blue-ribbon bipartisan panel, along the lines of the 9/11 Commission, to investigate our descent into torture. And, in addition to blocking all civil-damages actions, he has made no apologies to any of the numerous victims.
Other democracies have shown that accountability is possible. Canada commissioned an investigation of the treatment of Maher Arar, resulting in a report exonerating Arar, an apology from the parliament, and a payment of damages. The United Kingdom has similarly ordered an official inquiry of charges that its officials turned a blind eye to torture by other governments and has paid damages to torture victims. As these examples illustrate, criminal trials are not the only form of accountability. Absent some official acknowledgement of wrongdoing, however, tactics like torture and disappearance remain policy options, disfavored by the current president, but lying around “like a loaded gun” for the next.
Obama’s preferred approach is to “look forward, not back.” That policy is perhaps best exemplified by the way the administration has treated the undeniable fact that many Guantánamo detainees have been subject to illegal interrogations. The Bush administration classified anything that the detainees say about their own abuse and barred them and their lawyers from speaking about it publicly. The Obama administration has maintained that policy. It is even using a special courtroom at Guantánamo that features a floor-to-ceiling Plexiglas wall dividing the well of the court, where the trial takes place, from the seats where the press, legal observers, and others watch. Observers can hear what is said only through speakers subject to a 40-second delay. That way, if defendants begin to describe their torture, the speakers can be turned off, maintaining as “secret” what the world already knows.
This is not a sustainable strategy. Even if the Obama administration strictly adheres to the law, its resistance to accountability and transparency will brand it with the crimes of its predecessors. The world will not trust trials in which defendants and their lawyers cannot describe American officials’ wrongdoing. Nor will the world accept drone attacks that are subject to no publicly acknowledged legal constraints or safeguards.
Ironically, it is precisely the administration’s refusal to be transparent and acknowledge past legal wrongs that fuels the widespread criticism that Obama is merely “Bush Lite” when it comes to counterterrorism. The administration has, in my view, been unjustly criticized. While it has not done all it should, it has nevertheless made real, meaningful changes. But if Obama wants to respond to his critics, reassure the world, and restore the trust so essential to success, he must be willing to look backward, acknowledge wrongdoing, and defend openly the legality of continuing tactics. Obama’s reluctance to embrace these core principles gives credence to both the critics’ complaints and the enemy’s recruitment efforts. Only transparency and accountability can make clear whether Obama has truly turned the page on the disastrous policies of his predecessor.
David Cole is a professor at Georgetown University Law Center and author, most recently, of The Torture Memos: Rationalizing the Unthinkable. This article ran in the December 30, 2010, issue of the magazine.