By Dan Froomkin
12:23 PM ET, 02/18/2009
Is President Obama adopting some of his predecessor's signature anti-terror tactics?
A New York Times story this morning says it looks that way. And there have, indeed, been a few instances lately in which Obama has gravely disappointed civil libertarians, who thought he could be relied upon to make a clearer and more immediate break with Bush across the whole range of terror-related issues -- especially after he declared in his inaugural address that he would "reject as false the choice between our safety and our ideals."
Charlie Savage writes: "Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush's 'war on terrorism,' the Obama administration is quietly signaling continued support for other major elements of its predecessor's approach to fighting Al Qaeda."
His evidence includes:
"In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.'s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
"The administration has also embraced the Bush legal team's arguments that a lawsuit by former C.I.A. detainees should be shut down based on the 'state secrets' doctrine. It has also left the door open to resuming military commission trials.
"And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government 'for its continued commitment to protect sensitive national security information.'
"These and other signs suggest that the administration's changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies."
The notion that Obama would endorse any of Bush's most extreme claims of extra-legal authority is certainly alarming. And his administration's decision to press ahead with a ridiculously broad interpretation of the state secrets privilege last week was nothing less than shocking.
Savage, incidentally, writes that wasn't an accident: White House Counsel Greg Craig told him that Attorney General Eric Holder and others "reviewed the case and 'came to the conclusion that it was justified and necessary for national security' to maintain their predecessor's stance." Although, Savage adds: "Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case."
I also think there is a definite possibility that -- in the name of conciliation, or even protecting presidential power -- Obama will end up aiding and abetting those who want to keep Bush's darkest deeds secret.
And that he is keeping some options open -- for instance when it comes to potentially going beyond the Army Field Manual's interrogation techniques in specific cases or holding terror suspects indefinitely -- is worrisome and should make journalists and advocates approach his final decisions with skepticism.
But it's also important not to forget how much of the Bush legacy Obama has rejected. He has clearly ruled out any sort of interrogation techniques that violate torture statutes and international agreements. He has clearly ruled out scooping people off the streets and whisking them to secret prisons or countries that will torture them. He has announced that he will close the prison at Guantanamo Bay.
Craig insisted to Savage "that the administration was not embracing Mr. Bush's approach to the world" and "urged patience as the administration reviewed the programs it inherited from Mr. Bush."
Glenn Greenwald blogs for Salon that "while believing that Savage's article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly)."
Greenwald concludes: "[W]ho and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen."
Meanwhile, Jane Mayer writes in the New Yorker that the case of alleged al Qaeda sleeper agent Ali Saleh Kahlah al-Marri -- who has been held in isolation in a Navy brig for more than five years without standing trial -- is emerging as a major test for Obama.
"No matter how Obama responds to the case, his decision is likely to arouse controversy. [Jonathan Hafetz, a lawyer with the American Civil Liberties Union,] says, 'If President Obama is serious about restoring the rule of law in America, they can't defend what's been done to Marri. They would be completely buying into the Bush Administration's war on terror.' This view is widely held by Obama's political base. Yet the political risks of change are obvious." The Bush administration theorized that Marri came to America in order to help carry out a second wave of terrorist attacks.
"[A] compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President's prerogative to lock 'enemy combatants' up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a 'national-security court,' which could order certain suspects to be held without a trial....
"[S]uch a compromise is sure to alarm many human-rights advocates and civil libertarians, who regard indefinite detention as antithetical to the American legal system's most basic tenets."
Mayer quotes former Bush attorney general John Ashcroft predicting that "in the end, President Obama's approach to handling terror suspects would closely mirror his own: 'How will he be different? The main difference is going to be that he spells his name "O-b-a-m-a," not "B-u-s-h." '"
But consider what Craig, the White House Counsel, told Mayer about the issue of indefinite detention: "'It's possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law,' Craig said. 'Our presumption is that there is no need to create a whole new system. Our system is very capable.'...
"Obama's legal team is aware that every step it takes will be seen as an indication of core convictions. Craig, who will coördinate the revamping of the Bush Administration's legal policies on terrorism, said, 'One way we've looked at this is that we own the solution. We don't own the problem — it was created by the previous Administration. But we'll be held accountable for how we handle this.'"
And in a somewhat related story, R. Jeffrey Smith and Joby Warrick write in The Washington Post that although Obama "endorsed new protections for national security officers who blow the whistle on abusive, corrupt or illegal behavior, by offering them the right to sue for damages and challenge denials of their security clearances," finding the path to a new policy on federal whistleblowing has become much more complicated because he kept on "a Republican-appointed secretary of defense strongly opposed to those changes."