More Response from David Cole

I’ve now had the chance to read Jack’s response and Ben’s further post in response to my TNR article.  Both insist that Obama has continued Bush’s counterterrorism policies, and thereby, as Jack puts it, has given “the overall Bush approach an indefinite validity and legitimacy that Bush never could have accomplished.”  Ben insists it’s complicated, but at the end of the day “the Obama administration accelerated and took to its logical conclusion every trend that was already under way in the latter years of the prior administration.” Both arguments rest on a straw man. If the question is whether Obama ended all uses of military authority in responding to the threat posed by Al Qaeda, he didn’t.  But did anyone really expect him to do so?  The criticism of Bush was not that he used a military response, but that he refused to be bound by law. Thus, it is true, as my piece discussed at length, and as Jack says as if it somehow contravenes my position, that Obama continued military detention and military commissions. But they go along with the use of military authority. Bush’s error was not to insist on detaining the enemy, or on trying them militarily, but to insist on doing so in law-defying ways that constituted nothing less than war crimes--authorizing their cruel treatment and torture, and denying them the most basic elements of fair hearings.  Moreover, as I noted in my piece and Jack does not dispute, the Bush administration’s Office of Legal Counsel continued to authorize cruel, inhuman, torturous, and illegal interrogation tactics even as the public law became more and more clear that such tactics were absolutely forbidden. As yet, there is no such evidence of such law-defying conduct from the Obama administration. Rather, Obama has sought to conform his exercise of authorities to the law--even, as I discussed in the piece, when the D.C. Circuit told him he need not bother. The relevant question, then, is not whether Obama is using a military or a criminal approach. Both Presidents used both, and there is nothing inherently illegal about doing so. Rather, the question is whether Obama has embraced the rule of law as a constraint on his actions--something Bush never did. And the answer, with several important caveats mentioned in my piece (Bagram, transparency, and accountability), is that Obama has done so. He has not, as Jack says, “attempted to make the core Bush approach to terrorism politically and legally more palatable, and thus sustainable.” The core Bush approach was to reject international law, reject congressional constraints, authorize war crimes, and place himself above the law. The core Obama approach has been to use only authorities that international and domestic law allow, and to operate within the framework of those laws. I agree with Ben that it is complicated, and with Jack that structural pressures play an important role here. But the claims that Obama has legitimated Bush’s approach and that only a law professor could appreciate the distinction between executive authority under law and executive authority above the law, are, I think, fundamentally misguided.