Bush’s Terror Overreach Becomes ’New Normal’ Under Obama

May 28 (Bloomberg) -- Critics of President George W. Bush’s anti-terrorism efforts, mainly Democrats and some Republicans, rejoiced when Barack Obama was elected. They were convinced that what they considered the post-Sept. 11 trampling of constitutional rights and civil liberties would end.

As a candidate, Obama, a former constitutional law professor, promised to close the prison at Guantanamo Bay, Cuba, as well as to end indefinite detention and the rendition of terrorism suspects to other countries, where they often were tortured. He also vowed greater accountability and transparency in the conduct of war.

Things look different today. In his new book, “Power and Constraint: The Accountable Presidency After 9/11,” Jack Goldsmith, a Harvard Law School professor who served in the Office of Legal Counsel under Bush and objected to some of that administration’s tactics, writes: “The Obama administration would continue almost all of its predecessor’s policies, transforming what had seemed extraordinary under the Bush regime into the ‘new normal’ of American counter-terrorism policy.” That seems only a slight exaggeration.


Goldsmith argues this largely reflects a self-correction on Obama’s part. The Bush administration’s anti-terrorism policies were excessive, reined in by the courts and Congress. His successor then overpromised in the other direction and was reined in by politics.

The Obama administration “strongly” disagrees with Goldsmith, says Tommy Vietor, a spokesman for the White House National Security Council. He points to achievements such as ending the war in Iraq, beginning to wind down the Afghanistan conflict, the “devastated” leadership of al-Qaeda, ending torture and modifying other post-Sept. 11 security policies.

Others contend the administration capitulated after it received political flak for wanting to close Guantanamo and try accused terrorists in civilian courts. There was a celebrated confrontation between the then-White House Chief of Staff Rahm Emanuel, who argued these controversial promises were impeding Obama’s economic agenda, and the then-White House Counsel Gregory Craig, who made the civil-liberties and campaign-commitment case for change; Emanuel won, Craig later resigned.

More recently, some of the toughest criticism has come from the Constitution Project, a bipartisan group of experts.

“Obama has fulfilled some promises, not fulfilled many others, either because Congress made it impossible or they decided on their own not to change,” says Morton Halperin, a longtime liberal national security expert who is a senior adviser to the Open Society Foundations.

“Fundamentally, the policies are the same and in some ways Obama has extended the reach of government,” says David Keene, a veteran conservative activist. He was critical of Bush’s anti-terrorism policies, as were some Democrats, he notes, but they’re silent now.

In his first week in office, Obama pledged to close Guantanamo, issued an executive order banning torture and suspended military commissions. There was tremendous political blowback to his decision to close Guantanamo and move the accused terrorists to the U.S. or try suspects such as Khalid Sheikh Mohammed in U.S. courts. Congress ultimately cut off funding for any such actions.

Obama achieved some victories. He ended the torture practices of the Bush administration. The targeted killing of suspected terrorists, including Americans, with drone attacks isn’t a policy reversal: Obama had vowed to adopt that approach in 2008; he didn’t make clear that the attacks might be directed out of the White House.

Rendition Reversal

He backed off on ending rendition -- the policy of sending alleged terrorists to other countries for interrogation -- insisting that the U.S. would ensure that torture is no longer practiced in the places they are sent and that their treatment is in accord with international laws. The administration also says it has curbed the excesses of indefinite detention without trial, which now requires judicial review.

Other observers see little change. Federal Judge Reggie Walton said Obama’s adjustments to military detention without trial represent “a minimal if not ephemeral” difference from the Bush position.

As a candidate, Obama promised transparency and openness. Yet this administration has brought more charges -- six -- for leaking information than all previous presidents combined.

“Openness and transparency doesn’t mean we’re OK with people breaking the law by leaking classified information that would harm our national security,” Vietor says.

The government is trying to force the New York Times reporter James Risen to testify as to whether a former CIA official, now on trial, was a source and leaked information about the Iranian nuclear program. In court filings it has been revealed that federal prosecutors obtained Risen’s telephone, bank and credit-card data and travel records.

A district court judge ruled against the government’s effort to force the reporter to reveal his confidential sources; the Obama administration is appealing that decision.

“In the campaign, Obama said Bush overreached in using state secrets,” Halperin says. This administration has “been worse.”

Vietor says the administration wouldn’t comment on a pending case.

On accountability, Obama assailed the Bush administration’s failure to heed the War Powers Act, requiring congressional authorization when the U.S. is engaged in foreign hostilities for more than several months. Candidate Obama, in a questionnaire for the Boston Globe in late 2007, vowed it would be different in his administration: “History has shown us time and time again,” he responded, “that military action is most successful when it is authorized by the legislative branch.”

The U.S.-led bombing attack on the regime of Libya’s Muammar Qaddafi began Feb. 17, 2011, and ended more than eight months later. The White House insisted Congress had no say, arguing that it was a NATO-led war and that U.S. ground forces weren’t involved. Senator James Webb, a Virginia Democrat, said this set “a very disturbing precedent” for the use of force in the age of drones and sophisticated air attacks.

In this political campaign, Obama probably won’t pay any price for these flip-flops. Bagging Osama bin Laden immunizes him from attacks on his conduct of the war on terror. The presumptive Republican presidential nominee, Mitt Romney, is in no position to criticize; he has suggested that as president he would reinstate the use of torture.

(Albert R. Hunt is Washington editor at Bloomberg News. The opinions expressed are his own.)

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