February 18, 2009
Is Obama Different Than Bush in the War on Terror?
The Obama administration may be following the Bush administration's lead in several key and controversial policies in the war on terror, Charlie Savage reported in yesterday's NYT. Savage:
Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting CIA interrogators to Army Field Manual techniques, shuttering the agency's secret prisons, ordering the prison at Guantanamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
Here are the areas where the Obama administration's policies may resemble the Bush administration's policies:
State Secrets Claims. The Obama administration just last week shocked civil liberties groups and the Ninth Circuit in maintaining the Bush administration position that the state secrets privilege should prevent the entire case from going forward. The case, Mohamed v. Jeppesen Dataplan, Inc., involves an Ethiopian's claim against a Boeing subsidiary for its role in the Bush administration's extraordinary rendition program. The Obama administration's position prompted a group in both the Senate and House to introduce legislation limiting the use of the privilege in litigation. I posted on this here and here.
Indefinite Detention. AG Eric Holder and Solicitor General nominee Elena Kagan both indicated that they support indefinite detention without trial of someone suspected of helping finance Al Qaeda, even if captured outside an actual combat zone. In related and recent cases in the D.C. District, two judges separately expressed frustration with administration foot-dragging in defining "enemy combatant." I posted here.
Interrogation Techniques. Leon Panetta, nominee for CIA Director, said that he would ask for additional interrogation authority if approved techniques were not sufficient to get a detainee to divulge information about an imminent attack. In notable breaks from the Bush administration, however, Panetta said that waterboarding is torture, and that the President is subject to U.S. law banning torture.
Extraordinary Rendition. Panetta also said that the CIA might maintain its program of "extraordinary rendition." And, as stated above, the Obama administration seems willing to maintain Bush administration claims of state secrets in cases involving renditions.
The big difference--at least so far--in the Obama administration's approach is the apparent absence of categorical claims of sweeping and inherent executive power. For example, Panetta was careful to say that the President was subject to U.S. law, even if he might seek additional interrogation authority. This is a dramatic change from the claims of executive authority in the Bush administration.
The Obama administration has yet to weigh in on other key areas. As mentioned above, it is stalling in defining "enemy combatant" for cases pending in the D.C. District. And it's yet to opine on Rove's assertions of executive privilege in the face of Congressional subpoenas. (More on that here.) We'll keep you posted.
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