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Does Jack Goldsmith Prefer Barack Obama to Dick Cheney?

Harvard law professor Jack Goldsmith, who briefly headed the Office of Legal Counsel in the Bush Administration, has an interesting essay in The New Republic, "The Cheney Fallacy," suggesting that the Obama Administration's approach to counterterrorism is better than that adopted under President Bush. The article begins:

Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.

After reviewing the key policy areas, and the Obama Administration's revisions (many of which are marginal or largely cosmetic), Goldsmith concludes:

One can view these and many similar Obama administration efforts as attempts to save face while departing from campaign promises and supporter expectations. And no doubt there is an element of this in the Obama strategy. But the Obama strategy can also be seen, more charitably, as a prudent attempt to legitimate and thus strengthen the extraordinary powers that the president must exercise in the long war against Islamist terrorists. The president simply cannot exercise these powers over an indefinite period unless Congress and the courts support him. And they will not support him unless they think he is exercising his powers responsibly, under law, with real constraints, to address a real threat. The Obama strategy can thus be seen as an attempt to make the core Bush approach to terrorism politically and legally more palatable, and thus sustainable.

If this analysis is right, then the former vice president is wrong to say that the new president is dismantling the Bush approach to terrorism. President Obama has not changed much of substance from the late Bush practices, and the changes he has made, including changes in presentation, are designed to fortify the bulk of the Bush program for the long-run. Viewed this way, President Obama is in the process of strengthening the presidency to fight terrorism.

This analysis seems right to me. If the Obama campaign could be criticized for its blindness to the difficult trade-offs the Bush Administration sought to balance, the Bush Administration was too hard-line and unilateral for its own good. The Bush team often took good or necessary ideas too far and was unnecessarily dismissive of other branches and other opinions. Insofar as the Obama Administration is trimming the excesses of the Bush Administration's policies, and paying more attention to how our policies are perceived by friends and foes overseas, it seems to me they are setting the right course. There will be further bumps and misteps along the way, but at least we are heading in the right direction.

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More Rights at Gitmo, Fewer Elsewhere?

Jack Goldsmith observes that the expansion of legal rights for Guantanamo detainees and restrictions on rendition have been offset by other measures designed to compensate for the costs of the new limitations.

A little-noticed consequence of elevating standards at Guantanamo is that the government has sent very few terrorist suspects there in recent years. Instead, it holds more terrorists -- without charge or trial, without habeas rights, and with less public scrutiny -- at Bagram Air Base in Afghanistan. Or it renders them to countries where interrogation and incarceration standards are often even lower. The cat-and-mouse game does not end there. As detentions at Bagram and traditional renditions have come under increasing legal and political scrutiny, the Bush and Obama administrations have relied more on other tactics. They have secured foreign intelligence services to do all the work -- capture, incarceration and interrogation -- for all but the highest-level detainees. And they have increasingly employed targeted killings, a tactic that eliminates the need to interrogate or incarcerate terrorists but at the cost of killing or maiming suspected terrorists and innocent civilians alike without notice or due process.

As Goldmsith notes, this shift may have negative consequences for both intelligence gathering and human rights -- but it has PR benefits. As Goldsmith concludes:

After nearly eight years without a follow-up attack, the public (or at least an influential sliver) is growing doubtful about the threat of terrorism and skeptical about using the lower-than-normal standards of wartime justice. The government, however, sees the terrorist threat every day and is under enormous pressure to keep the country safe. When one of its approaches to terrorist incapacitation becomes too costly legally or politically, it shifts to others that raise fewer legal and political problems. This doesn't increase our safety or help the terrorists. But it does make us feel better about ourselves.

Related Posts (on one page):

  1. More Rights at Gitmo, Fewer Elsewhere?
  2. Does Jack Goldsmith Prefer Barack Obama to Dick Cheney?
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