David Cole on Continuity and Change

By Benjamin Wittes
Wednesday, December 15, 2010, 4:50 PM

Back in October, I posted a link to a speech I had given some months earlier on continuity and change between the Bush and Obama administrations on counterterrorism. I looked at the question through four different lenses and concluded that whether one sees continuity or change depends greatly on which lens one uses. This week, writing in The New Republic, David Cole takes on the same subject (subscription required) and comes to a rather different conclusion, arguing that those on the left, right, and center--he singles out Jack, in particular--who see great continuity are missing the big picture:

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.” . . .
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.
David makes good points throughout the article, but I think he overstates the case for discontinuity rather considerably. For many on the left, the charge of lawlessness against the Bush administration was not just about interrogation, and it was not just about the "most objectionable features" of certain other activities. It was about an entire approach to fighting terror--the deployment of military authorities, the mingling of military and law enforcement powers, the use of covert authorities to capture, kill, and transfer people, and the aggressive use of electronic surveillance authorities in the absence of warrants. Obama played into this vocabulary throughout the campaign. He used vague-sounding phrases like "close Guantanamo" and "restore the rule of law"--which promised very little in concrete terms but conveyed great expectations to a great many people. Only a few cynics like me and Jack were publically emphasizing how little latitude he would actually have to shift gears once in office. Rather, people across the political spectrum believed that he would change fundamentally the actual substantive powers the executive branch claimed to confront the enemy. That he did not do so is the source of people's sense of continuity. While one can certainly point to examples of breaks with the past and examples of areas where the administration has narrowed its claimed basis for its powers, and this is no small thing, it is ultimately a distinction that only a law professor could love.

Imagine for a moment that Obama had promised during the campaign what he has in fact done: To continue non-criminal detention but to justify it only under the AUMF, to continue resisting federal court jurisdiction at Bagram, to escalate the use of Predator strikes (which he did promise, actually), to continue military commissions with certain legal adjustments, and to continue asserting the state secrets privilege. Under such circumstances, does anyone imagine that the left would have invested its hopes for restoring the rule of law in him? Of course not. Obama, while careful with his words throughout the campaign, was ultimately too clever by half. Without ever promising very much, he nonetheless managed to dramatically overpromise what he could deliver in the way of change--or at least, to create expectations of dramatically more change than he was, in fact, promising. It's no wonder that the change he has brought has not been the salient feature of his administration in many commentators' eyes.

UPDATE: An earlier version of this post had some text truncated by a gremlin in the machine. My apologies if it was not comprehensible.