Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained. This prediction has been amply confirmed. The most recent example is the implementation of an explicit profiling program for airline passengers. The ACLU aside, there has not been much criticism of this initiative. (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)
The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological. Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes. There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.
This development seriously weakens some common arguments heard over the last years. The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain. If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so. But the theory was never a very good one. If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago. Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits. But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.
The Al-Bihani case is another signpost on the road. The striking dictum rejecting the view that “the war powers granted by the AUMF and other statutes are limited by the international laws of war” may not survive in the long run—this is in tension with Hamdi, as Judge Williams notes, although on the other hand the Supreme Court has hardly been consistent in requiring that international law be used to interpret statutes. But the whole opinion, including the concurrences, is pregnant with a kind of resentment that courts are being asked to determine whether the U.S. army properly picked up an (alleged) enemy soldier on foreign territory—and one way or other, the courts are going to maintain their historical stance of deference to the political branches. The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war. If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds. Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.