Thursday, July 26, 2012

Comparing Obama and Bush

From David Cole's essay in the New York Review of Books:

President Obama has done many things to distinguish his administration’s policies from his predecessor’s. He ended the CIA’s “enhanced interrogation” program, closed the CIA’s secret prisons, and released the previously secret torture memos. He reformed the military commissions, pledged to close Guantánamo, and increased the substantive and procedural standards for detention in Afghanistan. He introduced pro-transparency reforms with respect to Freedom of Information Act requests and declassification reviews, rejected rendition as a means of outsourcing torture, and substituted a more surgical and precise targeting strategy for Bush’s more sweeping “war on terror.” He refused to rely on the “inherent” and unconstrained commander-in-chief authority that Bush infamously invoked, and insists that his authority is limited by statutes, the Constitution, and international law, including the laws of war...

Bush grudgingly sought authorization from Congress for military commissions only after the Supreme Court declared his unilaterally created commissions unlawful; Obama went to Congress of his own accord in 2009 to make the tribunals more fair (by, for example, prohibiting coerced testimony and restricting hearsay). And when a panel of the US Court of Appeals for the D.C. Circuit ruled that his military detention authority was not limited by the laws of war, President Obama took the extraordinary step of telling the court it had granted him too much power, insisting that his authority to detain is limited by the laws of war. This is not merely “prettier wrapping”; it is the difference between a president who seeks to act within the rule of law and a president who sought to discard it...

President Obama is not the same as President Bush, and has not institutionalized the worst of Bush’s policies. By this time in President Bush’s first term, there were widespread and credible reports of systematic torture and inhumane treatment of detainees, renditions to torture, indiscriminate roundups of Arabs and Muslims within the United States having nothing to do with terrorism, the announcement that the Geneva Conventions would not bind us, and the creation of a military commission system that would permit executions based on coerced confessions and without judicial review. By contrast, few abuses have been reported during President Obama’s first term.

Obama’s opposition to any efforts at accountability for the past, even an independent commission, remains deeply disturbing, as do his insufficient efforts at transparency. Not a single high official has been held legally responsible for a violation of the law barring torture, for example. But surely we are better off under an administration that has ended torture, closed the black sites, sought to reform military commissions, and insisted that all its actions must conform to the laws of war in particular and to the rule of law more generally...



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