More on Bush-Obama Continuity

By Jack Goldsmith
Sunday, November 11, 2012, 7:01 AM

When I wrote on Friday about the “basic counterterrorism policies that Obama continued, with tweaks, from the late Bush administration,” I meant to refer only to policies that “Obama continued” from the Bush era, and not to make a claim (indeed, I was trying to avoid making a claim) about the now-very-old debate whether and to what degree Obama continued all of Bush’s policies.  But I was imprecise and Trevor interpreted me to claim that “the differences between the Bush administration and the Obama administration on questions of counterterrorism law and policy are mere ‘tweaks.’”  And he has now written a nice defense of the differences between the Bush and Obama eras.

I agree with many of the details in Trevor’s post, and indeed I acknowledged most of his points in my book, Power and Constraint.  My claim was never that the Obama administration copied or merely tweaked all of the Bush administration policies, but rather (as I say on p. 5 of Power and Constraint) that it “copied most of the Bush counterterrorism program as it stood in January 2009, expanded some of it, and narrowed a bit.”  My book also makes much of the differences in the rhetorical and justificatory approaches between the two administrations, which I think are important.  I stand by those judgments, and will not repeat the basis for them yet again; I refer the interested reader to chapter 1 of Power and Constraint for the details.

But I will say a few words about why I think analyses like Trevor’s miss the forest for the trees on this issue.  The continuity of the late Bush and early Obama eras is a qualitative judgment.  And that qualitative judgment is informed by the baseline of expectations.  President Obama in his 2008 campaign led everyone to believe that he would dramatically change the Bush counterterrorism policies.  “Bush’s ‘War’ on Terror Comes to a Sudden End” was the headline in the Washington Post on January 23, 2009, capturing conventional wisdom at the dawn of the new administration.  Indeed, people inside the administration believed this as well, and tried hard, especially in the first year, to bring dramatic change on such issues as state secrets, military detention, military commissions, closing GTMO, and more.  But dramatic change did not come on these issues.  It did not come not because the Obama officials were hypocrites.  They were not.  Rather, the continuity was driven by a number of factors described in chapter 2 of my book, including the responsibilities and inside information of the presidency, the persistence in outlook of the national security bureaucracy, the alterations to (and legitimation of) Bush administration policies by Congress and courts and related actors, and congressional pushback on Obama initiatives like closing GTMO and civilian trials.

We cannot put a number on the extent to which Obama continued Bush – was it 95%?; 85%?; 75%?  But very few would have predicted in January 2009 that four years later a secretive Obama administration would be trying the 9/11 conspirators in military commissions; detaining 160 or so people in military detention in GTMO; defending its legal right to do both, and to deny habeas corpus in Afghanistan, in federal court; asserting state secrets doctrine in court on its own authority; pursuing unprecedented prosecutions against government leakers; urging re-authorization (and in some senses expansion) of late Bush-era surveillance policies; and ramping up drone attacks a great deal in a much-expanded global covert war that invite charges of war crimes and related illegalities from U.N. and other international and foreign officials, and NGOs.  These are some of the broad-based policy continuities – continuities embedded, importantly, in a presidential war approach to the problem of Islamist terrorism that many hoped Obama would end – that lead most people to think there was large continuity between the Obama and Bush administrations.  And these are some of the policies that, as I argued in my Friday post, will become more entrenched because they will receive less pushback during a second Obama administration than they would have under a Romney administration.