Advancing a Free Society

David Cole on Obama v. Bush

Monday, December 20, 2010

Ben has already commented on David Cole’s TNR essay (subscription needed) about how the Obama approach to counterterrorism differs from the Bush approach.  But since David uses my own TNR essay on the subject as a foil for some of his arguments, I should respond as well.  I think David is engaged in revisionist history, and that he misses the most significant implication of the Obama differences from Bush.

In late January 2009, the conventional wisdom was that Barack Obama had, as Dana Priest put it, “effectively declared an end to the ‘war on terror’ as President George W. Bush had defined it.”  Very few at the time could have imagined that Obama would go on to commit himself to the war (as opposed to crime) framework; continue military detention without trial; continue military commissions; embrace the Bush administration conception of the state secrets doctrine, even in the very cases Bush asserted it; oppose the extension of habeas corpus beyond GTMO; dramatically expand targeted killing outside Iraq and Afghanistan, and include a U.S. citizen target; reaffirm the Bush administration legal standard on rendition; continue the same surveillance practices as Bush; oppose efforts to expand presidential notification duties to the intelligence committees; continue signing statements with Article II power carve-outs; and other Bush-mimicking practices.

Continue reading Jack Goldsmith at Lawfare