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One Further Thought on CT Continuities and Discontinuities

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Sunday, November 11, 2012 at 12:03 PM

I appreciate Jack’s follow-up post on the larger picture of the Obama administration’s counterterrorism policies and their points of continuity with the Bush administration (though only the late Bush, as he properly underscores).  Jack and I agree on much more than we disagree on, including that evaluations of the Obama policies in this area depend in large part on people’s baseline expectations.  Although I’m not so sure that everyone or nearly everyone believed in January 2009 that the Obama administration would not defend the continued detention under the law of war of any of the people then held at GTMO (which is not the same issue as whether to close the GTMO facility or whether to very substantially decrease the detainee population), and although I’m not sure that there were similarly widespread expectations that the Obama administration would favor habeas corpus for Bagram detainees, on many other points the trajectory of the administration has been contrary to widespread initial expectations.  The failure to close GTMO itself is one obvious example.  Jack notes others in his post (and, in greater detail, in his book).  So we substantially agree there.

The ultimate point of my initial post wasn’t really to fight those details — though I can see why it might have seemed otherwise, given my lengthy, “in the weeds” discussion of various specific issues.  Instead of missing the forest for the trees, as Jack suggests I have done, I meant to offer a slightly different view of the forest.

My point was that underlying many of the points of discontinuity between Bush and Obama is an important difference in philosophy.  In my view, the hallmark of much of the Obama administration’s counterterrorism work has been a commitment to at least presumptively operating within domestic statutory and international legal frameworks.  This commitment isn’t necessarily absolute, but it has been and is very strong.  I don’t think the same can be said for the Bush administration, which often favored more unilateral assertions of inherent executive power.  True, the Bush administration’s ability to rely on such assertions was considerably diminished in the final couple years of the administration, due in part to various judicial interventions against it.  But I think it’s fair to say that the fundamental preference remained.  I also think it’s fair to say that, on at least some issues, a Romney administration might well have returned to that preference.  That is, I think a Romney administration might well have been more willing than the Obama administration has been (or, I predict, will be over the next four years) to rely on broad assertions of unilateral executive authority, largely unconstrained by either domestic legislation or international law.  The suggestion of some Romney campaign advisers that he put waterboarding and other “enhanced” interrogation techniques back on the table, despite the McCain Amendment, is just one example.  As I suggested back in the spring, I think it’s very unlikely Romney would have succeeded in doing that.  But that’s not my point here.  Instead, my point is that one can see in this example a difference in preference and philosophical approach.

We can’t know precisely what counterterrorism issues President Obama will face — or a President Romney would have faced — over the next four years.  But we may be able to say something about the underlying philosophy and preferences an administration is likely to bring to whatever issues it faces.  That is where I think one can identify a difference between Bush (and probably Romney) on the one hand, and Obama on the other.