Most of us have a favorite image from the inauguration of President Obama. Mine shows soldiers at Guantánamo Bay Naval Base replacing George W. Bush's picture with a portrait of the new president. A day later, Obama ordered that Guantánamo be closed within a year, signaling that his administration would take a stance on terrorism very different from his predecessor's. Since then, however, he has taken several actions suggesting that the differences may be less marked than that first day implied. Certainly there have been significant improvements in US policy, particularly Washington's approach to international law. But disturbingly, the Obama administration has continued the Bush administration's attempts to shield illegal exercises of executive authority from judicial review.
The Obama administration's ambivalent approach was perhaps most evident in its March 13 announcement that it was abandoning the Bush label of "enemy combatant" for those held at Guantánamo. But at the same time, in a legal brief filed in a Guantánamo detention case, the administration advanced a new definition of who may be detained--which was immediately criticized by human rights groups as differing only marginally from that used by President Bush.
In fact, there are some significant shifts in this approach to detention. Obama's administration rests its authority squarely on Congress's Authorization to Use Military Force Against Al Qaeda and the Taliban, abandoning George W. Bush's claim to inherent executive authority. And it insists that the power to detain must be interpreted in light of law-of-war principles, displaying a refreshing desire to conform its actions to international law.
Critics correctly point out that the principal definitional difference is that where Bush claimed the right to detain all supporters of Al Qaeda or the Taliban, Obama asserts the right to detain only those who provided "substantial support" to these groups. "Substantial" is admittedly a dangerously vague term. It would be far better if Congress set forth in explicit terms who may be detained and under what circumstances. But the Obama administration argues that its detention authority should be framed by reference to the laws of war, which authorize detention, during traditional wars, of those who provide substantial support to enemy forces. If the administration and the courts interpret that term narrowly, it may turn out to be a more significant difference than it first appears. Bush's lawyers infamously told a judge that a woman who unwittingly donated to a charity that turned out to be an Al Qaeda front could be detained as an enemy combatant. The Obama administration has not only rejected that view but has agreed that its detention authority must be limited by the laws of war.
More troubling, however, is the administration's stance on several other lawsuits. In all of them the bottom line is that executive wrongdoing in connection with the conflict with Al Qaeda should be shielded from judicial scrutiny. The administration has told courts that lawsuits challenging the Bush administration's warrantless wiretapping and extraordinary rendition programs must be dismissed because they involve "state secrets." On this theory, the executive can avoid any judicial review of criminal and unconstitutional wrongdoing simply by declaring its wrongs a secret.
The Obama administration has also adhered to the Bush administration's contention that the right of habeas corpus does not extend to detainees at Bagram Air Force Base in Afghanistan. The military holds some 600 detainees at Bagram on grounds similar to those it uses to hold prisoners at Guantánamo--and with even fewer rights. Once the Supreme Court said that Guantánamo incarcerations would be subject to judicial oversight, the military simply stopped shipping its captives there, diverting them to Bagram instead. Should the executive branch be permitted to avoid accountability for its detentions simply by incarcerating them in Afghanistan rather than in Cuba?
And in a case seeking damages for torture and other abuse at Guantánamo, the Obama administration has argued that Guantánamo detainees have no constitutional rights to due process, so that even if they were tortured, no constitutional rights were violated. The Supreme Court's ruling last year that the constitutional right of habeas corpus extends to Guantánamo rested on its determination that there is nothing impracticable about extending such rights there. The same reasoning would fully support the extension of due process rights--yet the administration simply says no.
In the same lawsuit, the administration argues further that even if due process protects Guantánamo detainees, suits for damages against federal officials for violating detainees' rights should be dismissed because the suits involve matters of national security and foreign policy that are the "exclusive prerogative" of the political branches--as if the Supreme Court had not already decided three cases directly challenging the legality of Guantánamo detentions.
To sum up: in the one area where it cannot avoid judicial oversight--because the Supreme Court has ruled that Guantánamo detainees have a constitutional right to challenge their detentions via habeas corpus--the Obama administration has advanced a new legal theory for detaining the enemy that may, depending on how it is applied, mark a significant improvement over President Bush's.
But the unifying theme in the rest of the cases is that the courts should back off--no matter how illegally the executive has acted. President Bush undertook a full-scale assault on the courts, on international law and on the rule of law. President Obama, by contrast, has abandoned claims of executive supremacy and shown encouraging signs of a willingness to abide by international law. However, his resistance to judicial oversight and constitutional constraint may render his promises unenforceable in many settings. In the end, Obama seems to say that we, and the courts, should trust him. But we have learned the hard way that trust is not sufficient--the rule of law demands accountability.