Unchecked and Unbalanced: Obama Has Continued Many of His Predecessor’s Most Controversial Counter-Terror Policies. Here’s Why
At the outset of his new book, Power and Constraint, Harvard law professor Jack Goldsmith makes the case that President Obama has continued many of his predecessor’s most controversial counterterrorism policies. From preventive detention to the state secrets privilege to military commissions, Goldsmith asserts, Obama has adopted practices that he criticized in his presidential campaign.
This claim of continuity rankles Obama supporters who believe that the president’s approach to counterterrorism evinces a respect for the rule of law that his predecessor lacked. But the claim is not a new one. It has been put forward both by conservatives who consider the continuity a validation of President Bush’s approach and by liberals who consider it a betrayal. Indeed, even Obama’s staunchest defenders acknowledge some unexpected similarities between the two administrations in national security matters.
More provocative is Goldsmith’s argument about why this is the case. He contends that, contrary to conventional wisdom, the Bush era was one of unparalleled oversight and accountability. After 9/11 the executive branch initially assumed broad and intrusive powers, which it exercised largely in secret. The media, aided by Freedom of Information Act requests from NGOs, uncovered these secret acts. Congress, the courts, and internal agency watchdogs then pushed back and trimmed the president’s powers. By the time Obama took office, existing policies reflected a rigorous application of the constitutional system of checks and balances. By continuing those policies, Obama did not abandon the reformist commitments he made during his campaign, as some believe. The policies already had been reformed, and whether they ended up in the “right” place is, Goldsmith asserts, beside the point.
Goldsmith is no mere observer of the events he describes. In his brief tenure as the head of the Justice Department’s Office of Legal Counsel (OLC), Goldsmith made the unprecedented decision to withdraw two standing OLC opinions: the “torture memos” authored by John Yoo. The memos, he found, provided a flimsy legal justification for subjecting terrorist suspects to “enhanced interrogation techniques” that included waterboarding, shackling suspects in “stress positions,” confining them in small boxes, subjecting them to extreme temperatures, and preventing them from sleeping. With the exception of waterboarding, however, Goldsmith did not dispute the legality of the practices—only the quality of the memos authorizing them—and so allowed them to continue.