David Cole on Obama v. Bush

By Jack Goldsmith
Friday, December 17, 2010, 1:00 AM

Ben has already commented on David Cole’s TNR essay (subscription needed) about how the Obama approach to counterterrorism differs from the Bush approach.  But since David uses my own TNR essay on the subject as a foil for some of his arguments, I should respond as well.  I think David is engaged in revisionist history, and that he misses the most significant implication of the Obama differences from Bush.

In late January 2009, the conventional wisdom was that Barack Obama had, as Dana Priest put it, “effectively declared an end to the ‘war on terror’ as President George W. Bush had defined it.”  Very few at the time could have imagined that Obama would go on to commit himself to the war (as opposed to crime) framework; continue military detention without trial; continue military commissions; embrace the Bush administration conception of the state secrets doctrine, even in the very cases Bush asserted it; oppose the extension of habeas corpus beyond GTMO; dramatically expand targeted killing outside Iraq and Afghanistan, and include a U.S. citizen target; reaffirm the Bush administration legal standard on rendition; continue the same surveillance practices as Bush; oppose efforts to expand presidential notification duties to the intelligence committees; continue signing statements with Article II power carve-outs; and other Bush-mimicking practices.

Several of David’s attempts to distinguish the Obama era from the Bush era fail. David says that Obama unlike his predecessor “stated that his power to wage the war stems from the Authorization for Use of Military Force and is subject to the constraints of the courts, Congress, the Constitution, and international law.”  David is correct that this was not the Bush position in its earliest court filings in 2002-03.  But as I have documented elsewhere, this was the basic Bush position after 2004.  David also says that the Obama administration arguments against extending habeas corpus to beyond* GTMO are explained by two “mitigating factors: A congressional statute barred review, and there is a strong presumption that the executive should defend the validity of a statute unless no reasonable argument can be made in its defense.”  But of course these same mitigating factors were present when the Bush administration opposed the extension of habeas corpus to GTMO in Boumediene. I don’t recall David soft-pedaling the Bush position in 2008.

It is true that Obama has done some things differently.  The biggest differences involved shutting down the CIA interrogation and black site program.  These were important changes from Bush, though it is worth noting that by the end of the Bush administration CIA interrogation practices had been curtailed and the secret prisons were empty.  The Obama team also altered military commission rules a bit (though the changes are not as significant as David claims) and it has not argued for as broad an interpretation of AUMF powers as it could.  It is hard to assess how much if at all these latter changes matter in practice, but they are changes.

Many of David’s arguments for differences between Obama and Bush are directed at the Bush counterterrorism program as it stood in 2001-03, not 2009.  But starting in 2003 if not earlier, many forces inside and outside the Executive branch pushed back against the early Bush program.  By January 2009 Congress and courts had altered the early Bush program significantly and, as altered, largely blessed it.  Obama inherited this new regime and, with the exception of interrogation and black sites, basically embraced it.  David mentions the changes between 2003-2009 once when he says that “Bush adopted these changes grudgingly, after losing before the courts, Congress, and public opinion,” while Obama “willingly accepted the limits of law.”  This assessment of presidential intent may be true.  But it misses an important corollary: Just as Bush grudgingly embraced limits on his power, Obama grudgingly embraced the reality of significant political and legal support for aggressive counterterrorism tactics – tactics that the responsibilities of the presidency and the seriousness of the threat made it hard to walk away from.  In both instances, structural forces much larger than the predilections of two very different presidents led the two men to a remarkably similar place.

David purports to disagree with me in insisting that Obama’s departures from Bush, as well as the Obama rhetoric and reality of self-constraint, are very important.  But he is wrong to think I disagree.  David says:

To dismiss the changes Obama has introduced as merely rhetorical, however, as Goldsmith and others have done, is to miss the critical difference between lawless and law-abiding exercises of state power. The Constitution, domestic law, and international law permit democracies to take aggressive action to defend themselves against attacks like the ones we suffered on September 11.  But they insist that when the state employs coercion to achieve security, it must abide by rules designed to forestall government abuse and respect human rights. Bush blatantly disregarded this principle; Obama has embraced it.

Far from dismissing the Obama changes as “mere rhetoric,” I made the same point as David last spring.  At the beginning of the essay I said: “Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.  This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.”  And later I noted:

Finally, the Obama administration is following the Lincoln-Roosevelt approach to rhetoric and public symbols. The president talks frequently about the importance of adhering to constitutional values, he worries publicly about terrorism policies going too far, and he suggests that he is looking for ways to keep them in check. He has said not a word about presidential prerogative in national security or the importance of expanding his power. Closing GTMO – especially in the face of loud opposition – is an important symbol of the new president's commitment to the rule of law even if the detainees ultimately receive no greater rights. The small restrictions his administration has placed on itself as compared to the late Bush practices are public indications of restraint, especially when contrasted with the early Bush insistence on maximum presidential flexibility at all costs. They are yet more significant because the Obama administration is embracing them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny. . . .

One can view these and many similar Obama administration efforts as attempts to save face while departing from campaign promises and supporter expectations. And no doubt there is an element of this in the Obama strategy.  But the Obama strategy can also be seen, more charitably, as a prudent attempt to legitimate and thus strengthen the extraordinary powers that the president must exercise in the long war against Islamist terrorists. The president simply cannot exercise these powers over an indefinite period unless Congress and the courts support him. And they will not support him unless they think he is exercising his powers responsibly, under law, with real constraints, to address a real threat.  The Obama strategy can thus be seen as an attempt to make the core Bush approach to terrorism politically and legally more palatable, and thus sustainable.

David grudgingly accepts this last point, but he misses its significance.  Yes, Obama has changed the Bush approach to counterterrorism in small material ways and in large rhetorical ways.  But the consequence of these changes is to give the overall Bush approach an indefinite validity and legitimacy that Bush never could have accomplished.  The Obama administration deserves much credit for this important accomplishment in the long war against terrorism, especially since it flew in the face of the expectations and criticisms of its core supporters.

* An earlier version of this post mistakenly referred to what David said about the Obama administration's arguments against extending habeas "to" GTMO.  I obviously meant "beyond" GTMO (or "to Bagram") and have noted the change above.