If you believe the president’s Republican critics, Barack Obama takes a law enforcement approach to terrorism. His FBI came under fire for reading Umar Farouk Abdulmutallab, the Nigerian national who nearly blew up an airplane on Christmas, his constitutional rights. His attorney general was blasted for wanting to give 9/11 mastermind Khalid Shaikh Mohammed a criminal trial in lower Manhattan. Republican Sen. Scott Brown rode to his historic upset victory in Massachusetts in part due to this slogan: “In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.” Every sign suggests the GOP will make terrorism a wedge issue in the 2010 midterm elections. “As I’ve watched the events of the last few days,” former vice president Dick Cheney said shortly after the Abdulmutallab attack, “it is clear once again that President Obama is trying to pretend we are not at war.”
It’s true that the president’s speeches and some of his administration’s policy rollouts have emphasized a break from the Bush era. In the Quadrennial Defense Review, the guiding strategy for defense spending released every four years, the administration excised any reference to the “long war,” previously the go-to euphemism for the global war on terror. In a major speech last summer, the president’s top adviser on terrorism and homeland security, John Brennan, said explicitly that Obama rejected the phrase “global war” because “it plays into the misleading and dangerous notion that the U.S. is somehow in conflict with the rest of the world.” In a USA Today op-ed piece last February, Brennan argued that Republican critics were playing into Al Qaeda’s hands by suggesting U.S. courts could not handle terrorism prosecutions.
But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president’s war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably “20th hijacker” Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.
The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as “black sites,” he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as “rendition.” And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.
The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, “The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Just as President Bush said the 9/14 resolution gave him the wartime powers to detain, interrogate, capture, and kill terrorists all over the world, so too does President Obama. On March 13, 2009 Justice Department lawyers said in a Habeas brief before the D.C. Federal Court that this resolution, known as the AUMF, or authorization of the use of military force, granted the administration detention authority.
It’s true that the Obama administration has rejected the early Bush administration’s assertion of an almost supreme wartime executive, or that the president’s wartime authorities can overrule laws passed by Congress. Also President Obama asserts that the powers granted by the 9/14 resolution must cohere to international laws of war. But these differences are less significant than one might imagine.
A speech last month from Harold Koh, the State Department’s legal adviser, acknowledged that the international laws of war have not properly contemplated a war against a global terror network. “Those laws of war were designed primarily for traditional armed conflicts among states,” Koh said. “Not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is ‘necessary and appropriate’ under the AUMF requires some ‘translation,’ or analogizing principles from the laws of war governing traditional international conflicts.”
As long as the AUMF remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. While it’s true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.
The Mirage of Accountability
Unlike other wars in American history, a global war on a terrorist network has no geographic boundaries and no clear endpoint. FDR interned Japanese Americans until the end of World War II, an extraordinary assault on civil liberties. But at least there was no doubt what the end of that war would look like.
“The danger of a war that takes place everywhere and lasts forever is that it gives the president almost limitless authority to detain or even kill U.S. citizens and civilians anywhere in the world,” says Ben Wizner, an attorney with the American Civil Liberties Union. On February 3, Dennis Blair, director of national intelligence, confirmed that power in congressional testimony, telling lawmakers that the administration had the right to kill American citizens who joined Al Qaeda without court involvement or consultation with Congress. The only legal authority required, Blair said, was “special permission,” which amounts to presidential approval on a case-by-case basis.
This position troubles Philip Alston, the United Nations special
rapporteur for extrajudicial executions, whose requests for
information on CIA drone strikes has been stonewalled by the Obama
administration. “The U.S. under President Obama has apparently
maintained the Bush administration’s view that, because it is
involved in a global armed conflict against Al Qaeda, it is
permitted to target and kill relevant individuals anywhere in the
world,” Alston says.
The White House has repeatedly defended using the same powers that were frequent targets of Democratic criticism when Bush and Cheney were exercising them. In a December speech at West Point announcing a surge of 30,000 troops in Afghanistan, Obama underscored that the action was authorized by the September 14 resolution, which, he noted, passed by a vote of 98 to 0 in the Senate.
In the February 1 issue of The New Republic, Jack Goldsmith, a Justice Department lawyer during the Bush administration, argued that Obama has assumed his predecessor’s war powers in part because the early overreach of Bush prompted safeguards that make the executive branch more accountable. Goldsmith, who had been a sharp critic of Dick Cheney’s views on executive power, pointed to “armies of lawyers” in the current administration whose sole job is to make sure highly classified programs adhere to congressional restrictions. “The enhanced powers of the presidency after September 11 have become part of the national fabric, in short, because they have received the consent of our national institutions, and thus of the people themselves,” he concluded.
It’s true that elements of Bush policy have been reined in by other branches of government. The Supreme Court rejected the military commissions that were first developed for detainees sent to Guantanamo. Obama has remade the commissions, with help from Republicans in Congress, to comply with the high court’s ruling. Congress, which the Bush administration largely ignored when it developed its post-9/11 National Security Agency (NSA) surveillance program, has now reauthorized the Federal Intelligence Surveillance Act (FISA) to allow for much of what was decried as warrantless surveillance of Americans’ phone calls and email. And Congress has asserted at least limited oversight of the war: The top Republican and Democratic leaders of Congress, along with the chairmen and vice chairmen of the intelligence committees—the so-called Gang of Eight—are consulted on major intelligence programs and counterterrorism operations, as they were prior to 9/11.