Obama v. Bush on Counterterrorism Policy

By Trevor Morrison
Sunday, November 11, 2012, 1:18 AM

I agree with much of what Jack says in his recent post about the counterterrorism issues likely to face President Obama in his second term.  But there's one aspect of how Jack frames the discussion that I disagree with somewhat.  Because a number of other commentators seem to use the same basic framing, I thought I’d register a different view.

Jack's basic claim is that President Obama’s re-election will lead to be "the further entrenchment, and legitimation, of the basic counterterrorism policies that Obama continued, with tweaks, from the late Bush administration."  I agree that, in the main, we should expect a continuation of many of the basic contours of the counterterrorism policies President Obama pursued in his first term.  And for some of the reasons Jack identifies later in his post, I also agree that two potential exceptions — that is, two areas where we might see significant changes going forward — are the use of drones and the treatment of threats not covered by the September 2001 AUMF.

Where we disagree is over the idea (which Jack elaborates in greater detail in his latest, excellent book) that the differences between the Bush administration and the Obama administration on questions of counterterrorism law and policy are mere "tweaks."  I think this understates the differences on a number of fronts.  I won't attempt to enumerate all of them here, but I’ll offer a few examples below the fold — many of them familiar to Lawfare readers, I’m sure.  Then having done that, I’ll conclude with a broader thought about what the various differences between the Bush and Obama administrations mean going forward, for the second Obama term.

1.  Interrogation.  Here the differences are pretty clear, as I think Jack would agree.  In the immediate aftermath of the 9/11 attacks, the Bush administration implemented a program of “enhanced” interrogation that included waterboarding.  Although that program had been discontinued by the end of the Bush administration, and although the most aggressive of the OLC opinions underwriting the program had been withdrawn later in that administration (thanks in large part to Jack’s excellent work while he headed that office), as far as I know the Bush administration maintained until the end its view that all the techniques used in its interrogation program (including waterboarding) were legally permissible.  In contrast, one of President Obama’s first actions in office was to sign an executive order that barred the CIA from operating secret prisons (where much of the “enhanced” interrogation had occurred), affirmed that the treatment of detainees would be consistent with Common Article III of the Geneva Conventions, and established the Army Field Manual as the governing standard for all interrogations.  Among other things, the order effectively banned waterboarding and a whole host of other Bush-era interrogation techniques.  The order also rendered presumptively unreliable all OLC opinions on interrogation issued during the Bush administration, and in the months that followed OLC then explicitly rescinded several such opinions.  Moreover, and again in stark contrast to the Bush years, Obama nominees to top spots in the Justice Department and elsewhere all expressly and publicly stated their view that waterboarding is torture.  All these moves combined to make it nearly impossible for a successor administration to reinstate an interrogation program along the lines of the early Bush years — the apparent wishes of some in the Romney campaign to the contrary notwithstanding.  That’s real change.

2.  Treatment of terrorists captured within the United States.  Another difference — and a significant one, to my mind — is the Obama administration’s policy of relying exclusively on the criminal justice system (including prosecutions in Article III courts) for suspected terrorists apprehended within the United States.  That was not the policy of the Bush administration.  Indeed, shortly after President Obama took office, the military detention of Ali Saleh Kahlah al-Marri (a noncitizen apprehended and held within the U.S. during the Bush years) was due to be reviewed by the Supreme Court.  But the Obama administration went in a different direction, transferring al-Marri to civilian control and prosecuting — and successfully convicting — him of federal crimes in an Article III court.

The Obama administration has been consistent on this point over the last four years.  Even when faced with severe criticism by congressional Republicans for refusing to turn over the Christmas Day and Times Square bombers to the military for detention under the law of war, the administration never varied from its policy of relying on the criminal justice system to prosecute individuals apprehended in the U.S.   Congressional Republicans tried to mandate military detention of such individuals in the most recent NDAA, but as Ben and Bobby explain here, the final version of the legislation doesn’t really do that as a practical matter.  That’s because the Obama administration succeeded in dialing back the legislation to the point where it could continue its same basic policy of relying on the criminal justice system to deal with terrorists apprehended in the U.S.

3.  Habeas corpus at Guantanamo.  For the vast majority of President Bush's two terms, his administration vigorously opposed federal courts' habeas corpus jurisdiction over the detentions at Guantanamo.  First, the Bush administration argued that the general statutory grant of habeas jurisdiction did not extent to Guantanamo.  When it lost that issue in Rasul v. Bush (2004), the administration prevailed upon Congress to amend the statute so that it did not extend to Guantanamo, and it then vigorously defended that jurisdiction strip right up until it lost the issue in Boumediene v. Bush (2008).  Then-Senator Obama hailed the Boumediene decision as a landmark victory for the rule of law (after having consistently argued in favor of habeas for Guantanamo detainees for the previous several years), while his Republican opponent for the presidency that year, Senator McCain, called it "one of the worst decisions in the history of this country."

Of course, in its waning months the Bush administration complied with Boumediene in the sense that it began answering on the merits the many habeas petitions that Guantanamo detainees then pursued.  And of course the Obama administration continued to comply with Boumediene.  But I think it’s a mistake to equate the two administrations on this point.   The fact that the Bush administration was not prepared to defy a decision of the Supreme Court does not mean that its approach to the issue was the same as the Obama administration’s approach.

4.  Law of war detention authority.  Another difference is evident in the substantive standard of detention authority used by the Obama administration in the post-Boumediene litigation.  That standard (known colloquially as the “March 13 definition”) includes a number of limitations.  In particular, it  (1) disavows reliance on any notion of inherent presidential detention authority under Article II of the Constitution (at least for the detentions at Guantanamo), and (2) expressly states that the detention authority conferred by Congress in the 2001 AUMF is informed (and thus potentially limited) by concepts drawn from the traditional practice of war and the international law of war.  The Bush administration had never clearly said either of these things.  As Lawfare readers know, a panel of the D.C. Circuit rejected aspects of the second point in the Bihani case, effectively reading the scope of the government’s detention authority more broadly than the Obama administration was willing to assert.  But the administration did not embrace the broader authority that the panel was willing to confer upon the executive branch, and ultimately the panel’s reasoning on that point was converted into dicta by the D.C. Circuit en banc.  Since then the NDAA has effectively ratified the Obama administration’s understanding of its authority.  In a parallel development, the administration did not accept the invitation of the D.C. Circuit to contend that the government’s burden of proof in a habeas proceeding is less than a preponderance of the evidence.  All of which is to say that the Obama administration has offered a more measured, restrained theory of its detention authority — based exclusively on statutory delegation and sensitive to the contours of relevant international law — than had the Bush administration before it.

Of course, the Obama administration has continued to assert an authority to detain certain individuals under the law of war, without subjecting them to a criminal trial.  That has angered many on the left.  And over the last several years, the D.C. Circuit in a series of post-Boumediene habeas decisions has handed the government a number of wins on various evidentiary and procedural issues that arguably hollow out the writ in ways not envisioned by the Supreme Court in Boumediene itself.  That has raised concerns on the left and among many moderates as well.  In these respects, those who had hoped the Obama administration would deliver maximal change from the Bush administration on this front have been disappointed.  But that doesn’t mean there have been no significant changes.

5.  Detainee review boards at Bagram.  Yes, as the Bush administration had done before it, the Obama administration defended the statutory preclusion of habeas corpus for the detainees at Bagram, Afghanistan.  (Perhaps because I find it hard to imagine the federal courts striking down the statute in that context even if the Obama administration had refused to defend it, I find this point of consistency entirely defensible.)  But at the same time, in the first year of the Obama administration the Defense Department implemented a much more robust military-run detainee review board system at Bagram.  That system ultimately led to the release or prosecution referral of a great many detainees at Bagram.  I spent a few days observing the detainee review boards in early 2011, and can confirm the general robustness of their procedures.  Certainly they were far more rigorous than anything that had been in place at Bagram before that, or that had ever existed at Guantanamo during the Bush administration.  I regard this as a significant, self-imposed constraint on the exercise of detention authority in Afghanistan.  The Bush administration never took such measures.

6.  Military commissions.  Yes, President Obama retained military commissions.  (Many critics claimed this was a departure from his pre-inauguration stance, but it was consistent with his senatorial vote in favor of the initial version of what became the Military Commissions Act of 2006, before the White House inserted habeas-stripping and various other provisions with which Obama disagreed.)  But his administration also sought, and worked with Congress to implement, a number of statutory reforms to military commissions, nearly all of which grant greater protections to the accused.  These include changes to the admissibility standard for detainee statements (in the main, such statements must be found to be voluntary), greater restrictions on the use of hearsay, and more robust appellate review.  The Bush administration never proposed such things.

The Obama administration also urged Congress to eliminate material support to terrorism as a chargeable offense in military commissions, on the ground that the courts were liable to conclude it was not a traditional law of war offense and thus could not be used against pre-2006 conduct.  Congress refused.  The administration then defended such charges in court, and recently lost the issue in the D.C. Circuit’s Hamdan II decision.  I suppose one might be inclined to say that the administration’s defense of the charge marks a point of consistency with the Bush administration, and there is something to that.  But as evidence of the two administrations’ general approaches in this area, it’s worth observing that the Bush administration never proposed eliminating material support (or anything else) from the list of chargeable offenses.

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All of the above notwithstanding, there are of course many points of consistency between the Bush and Obama administrations.  On legal policy questions falling within the executive branch's discretion, the Obama administration did not abandon a practice or policy just because the Bush administration had followed it.  Instead, the Obama administration’s general approach has been pragmatic, seeking to keep open a broad range of legally available options.  Moreover, by the end of the Bush administration, the courts had weighed in on a number of the above issues (e.g., Hamdan I, Boumediene) in ways that both reined in the Bush administration and provided some judicial guidance on the way forward for the Obama administration.  During the Obama administration, Congress has legislated on various points as well (in ways both helpful and entirely unhelpful, an example of the latter being its preclusion of the closure of Guantanamo).  As a result, many aspects of the government’s counterterrorism policies have now been ratified by all three branches of government, helping to entrench those policies going forward.  That, I take it, is one of Jack’s main points.  I don’t disagree.

At the same time, the various differences I’ve noted above (as well as others) do reflect divergent philosophies on a number of important points — including the extent to which law (including international law) constrains the President’s national security authority, as well as whether the exercise of that authority should be constrained by norms of procedural fairness even when the Constitution and laws might not demand it.  Those are differences that matter.  Especially because we cannot anticipate all the specific counterterrorism issues that the President is likely to face going forward, and because it seems fair to say that a Romney administration would have adopted an attitude more like the Bush administration's on these basic questions, I count it as significant that President Obama — and not his predecessor or his 2012 opponent — will be in charge of the government’s counterterrorism policies for the next four years.