War on Terror

Obama's War on Terror Is Not 'Bush Lite'—It's More Like Bush Light

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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.

NEXT: TRON: Legacy

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  1. So Obama said a few different things than Bush but did not actually do anything differently?

  2. So, what exactly is the difference between “Bush Lite” and “Bush Light”? Or is that some sort of meta-pun where the whole point is that, like Bush’s and Obama’s policies, they’re the same thing (just spelled slightly differently)?

    1. I think he means that Obama’s war on terror is like a light on a Hanukkah Bush, illuminating the Festival of Lights.

    2. I ducked in here to ask the same thing. Is there some supposed difference between “lite” and “light”?

      And I don’t see how your proposed meta-pun would really work. A pun has to work on both levels. Whether you call it “Bush Lite” or “Bush Light,” you’re still ultimately saying “it’s not the same as Bush.”

    3. So, what exactly is the difference between “Bush Lite” and “Bush Light”?
      If you’ll change out of your European man-thong, I’ll show you.

      1. I hate to make you ruin what is surely an incredible joke by asking you to explain it, but…

        Huh?

        So if he changes out of his European man-thong, you’ll tell him. He doesn’t like Club Med, so it can’t be a Club Med joke. If it’s about “bush” as a sexual term, “bush” is female but “man-thong” and “Wesley” are not, so it can’t be a sexual joke.

        So, yeah: Huh?

  3. So Obama’s better than Bush, except…he’s not, really. Got it. Thanks, Obamatrons; you continue to polish your stellar record of integrity and non-partisanship.

    1. Epi
      Color me not impressed by Obama’s record here, but as the article says Cole is hardly an “Obamatron;” as the post itself says describing him “has fought the Obama administration in court and is not shy about criticizing its civil liberties record.”

  4. I’m in the process of writing my final paper for my Legal Issues in the War on Terrorism class. It took me basically the whole semester to convince people that Obama is more of the same on this issue but almost everyone came around by the end (though I think mostly due to its increased obviousness as we discussed each issue rather than my own charms).

  5. You missed a few:

    Obama authorizes assassination of American citizens overseas, even away from any battlefield.

    Obama steps up Predator missile strikes in Pakistan

    Obama sends 35,000 troops to bolster the war in Afghanistan

    I’m more of a classical liberal and not a libertarian when it comes to the military and foreign policy, but come on, make some fair comparisons. This post amounts to nothing but an apologia for Obama.

    1. Oh, BS. Bush didn’t say he had the authority to engage in assassination of American citizens overseas, even away from any battlefield? The Predator strikes started under Bush and approved the first surge.

      1. Exactly. More comparisons than you can count, and in some cases Obama actually pushed the envelope even further.

    2. This post amounts to nothing but an apologia for Obama.

      This post seems to be refuting point by point someone else’s apologia for Obama

  6. That’s real nice and all, but just about everything Obama says is a lie. How much of this is backed up by action?

    Also, I don’t remember Bush ever claiming the ability to order assassination of American citizens for whatever reason he chooses.

    1. Supposedly the assassination program was first authorized by Bush, but was later put into actual use by Obama. But that comparison makes Obama look like Bush Plus, so it was left out of this post.

  7. “Anyone who clings to the historically untrue ? and thoroughly immoral ? doctrine that “violence never solves anything” I would advise to conjure up the ghosts of Napoleon Bonaparte and of the Duke of Wellington and let them debate it. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon. Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst. Breeds that forget this basic truth have always paid for it with their lives and freedoms.”

    http://en.wikiquote.org/wiki/Starship_Troopers

  8. “War is not the Answer” says a popular bumper sticker. “War sometimes is the answer” should be the slogan of any people who wish to remain free.

    1. I believe it was Louis XIV who had the motto “The Final Argument of Kings” cast around the mouths of his artillery.

      The “anti-war” crowd forgets the difference between starting a war, and fighting a war.

      By any account of international law, we were justified in going to war in Afghanistan. Sticking around and trying to civilize the dump, not so much, but going in hot after bin Laden and AQ? Sure.

      By any account of international law, we were already at war with Iraq, albeit there was a cease-fire agreement in place. An agreement so serially and comprehensively violated by Hussein that we were also justified, legally, in terminating the agreement and going in hot.

      Again, sticking around to civilize the dump, etc.

  9. Turn on your Bush light,
    Let it shine wherever you go.
    Let it make a happy glow
    For all the world to see.

    1. Do I sense a fellow Neil Diamond fan here?

    2. Aaargh. Can’t . . . remember . . . the . . . song. I can hear it, but. . . .

  10. promise he has failed to keep not through any fault of his own

    even if in this specific case were true (it’s not), more generally, you don’t get to play that game. Not when your prez. Living in the nice house and flying around in the nice jet and otherwise having the perks and power of the imperial presidency means that not a goddam thing ‘is not your fault’. You find a way, or stfu and gtfo, as the kids say.

  11. “So it was with the Republic at its height. Like the greatest of trees, able to withstand any external attack, the Republic rotted from within though the danger was not visible from outside.

    “Aided and abetted by restless, power-hungry individuals within the government, and the massive organs of commerce, the ambitious Senator Palpatine caused himself to be elected President of the Republic. He promised to reunite the disaffected among the people and to restore the remembered glory of the Republic.

    “Once secure in office he declared himself Emperor, shutting himself away from the populace. Soon he was controlled by the very assistants and boot-lickers he had appointed to high office, and the cries of the people for justice did not reach his ears.

    “Having exterminated through treachery and deception the Jedi Knights, guardians of justice in the galaxy, the Imperial governors and bureaucrats prepared to institute a reign of terror among the disheartened worlds of the galaxy. Many used the imperal forces and the name of the increasingly isolated Emperor to further their own personal ambitions.”

    1. Nerd fail

    2. TIMMMMMMMMMMMEH!!!

  12. Perhaps we need a Clintonian Third Way, here. Could Busch Light be a more effective strategy?

  13. Omar Khadr’s military commission case is a good example of the way Obama operates.

    The Obama Admin dropped hints that they were uncomfortable with the case and they seemed to work behind the scenes to push for a plea bargain and transfer agreement with Canada. So Khadr has some remote chance of leading a normal life in Canada in a few years if he can overcome being branded as a war criminal and terrorist.

    However, the Bush process with its invented “war crimes” and “terrorism” based on guilt by association, or heredity in this case, its offensiveness, abuses and illegalities remains in place, even justified, and any wrong doing on the part of the Bush Administration, or the Harper minority Conservative government in Canada, is swept under a rug.

    Obama reminds me of a public servant working in a rotten system who may sometimes sound like he objects to it, and may work quietly to minimize the damage, but he does nothing to expose or change it, and nothing to hold anybody accountable for it.

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