Counter-terrorism after “The End” of the War on Terror

The New York Times has a preview of its upcoming magazine featuring Peter Barker’s article on counter-terrorism in the Obama Administration. There’s a great deal in there, but one of the leitmotifs is the relationship between Obama and Bush on national security:

Several weeks after Obama took office, I sat down with the president, along with three colleagues from The Times, in his conference room on Air Force One during a flight back from an event in Ohio. Now that he was in office, we asked what, if anything, he had come to believe that Bush had gotten right in the balance between security and civil liberties.

The candidate who denounced the “color-coded politics of fear” and rejected policies that “compromised our most precious values” was now a commander in chief wrestling with how to protect those values and the country at the same time. He told us that many of the worst practices he had objected to had already been corrected by the end of Bush’s presidency.

“I would distinguish between some of the steps that were taken immediately after 9/11 and where we were by the time I took office,” he told us. “I think the C.I.A., for example, and some of the controversial programs that have been a focus of a lot of attention, took steps to correct certain policies and procedures after those first couple of years.”

The battle with terrorists evolved significantly over the course of the Bush presidency, and when Obama took office, the course he set was more about accelerating that evolution than about restarting it. Under pressure from Supreme Court rulings, Congressional legislation and disclosures in the news media, Bush in his second term trimmed back some of his most expansive programs and claims to executive power. Two years before leaving office, he told advisers he wanted to use his remaining time to institutionalize what was left so that his successor, even a Democrat, would not feel compelled to reverse direction.

By the time Obama was inaugurated, waterboarding had been halted for years, Bush had ordered that the secret C.I.A. black site prisons be emptied and the warrantless surveillance program and the military commission system had been restructured and approved by Congress. Bush had even declared that he wanted to close the Guantánamo prison, and although he never managed to do so, his team released or transferred about 500 detainees as a first step.

Obama built on those actions. While setting a one-year deadline to close Guantánamo and formally banning the interrogation methods that had already fallen out of favor, he left the surveillance program intact, embraced the Patriot Act, retained the authority to use renditions and embraced some of Bush’s claims to state secrets. He preserved the military commissions and national security letters he criticized during the campaign, albeit with more due-process safeguards. He plans to hold dozens of suspected terrorists without charges indefinitely. And he expanded Bush’s campaign of unmanned drone strikes against Al Qaeda in the tribal areas of Pakistan. Troop levels in Afghanistan are set to triple on his watch.

This is a point that usually gets lost in the drone of accusing Obama of being a sellout, Bush-lite, or weak on terrorism.  The last years of Bush’s second term were very different from his first term.  Despite this change, people talk about Bush as if the entire eight years of his presidency were basically uniform.  Rhetorically, the Bush administration did keep its black/white “us vs. them” framework throughout, so I can see how this confusion arises.  But in practical terms, things did change.  Rumsfeld got sacked, Gates took over at Defense.  The Supreme Court actually did its job and forced the executive to reign in of its most egregious counter-terrorism practices–with  Scalia of all people writing some of the most critical barbs from the bench.

But I suppose the major events of Bush’s early years and his bombastic emotional reactions seared the image of a reckless cowboy into the public’s conscious, even after his policy positions changed pretty dramatically.

Obama continues to gradually shift the rhetorical and conceptual framework (a point Barker covers at the beginning of the article) of the United States’ counter-terrorism policies.  I wouldn’t overestimate the value of this change.  The larger world was clearly glad to get rid of Bush–the Nobel committee was so happy it gave Obama the Peace Prize for no other reason than he wasn’t his immediate predecessor.  But I sense that the geopolitical stage is now shifting towards multi-polarity and Obama’s rhetorical flourishes really aren’t going to change things all that much.

On the other hand, I don’t think (contra US movement conservatism) that Obama’s rhetorical changes are completely without value.  They make a difference, one I think the current administration might be excessively inflating in terms of real influence, but significant noenetheless.  

In terms of counter-terrorism, Obama has ended up where I think John Kerry would have basically ended up.  Obama hasn’t been helped much by the fecklessness of the US Congress regarding the shut-down of Guantanamo Bay.  Bush shift from an insanely radical, out-of-control approach to a more moderate tact that still involved some questionable policies.  Obama sought to end some of this excess, but wants to maintain much of the underlying counter-terrorism archictecture.

This is not to say I agree with everything President Obama is doing.  He still practices renditions–which I find unconscionable–but appears to rely on this less frequently (and perhaps not with the same countries?) than Bush did.  He accepts the necessity of holding some detainees (albeit a small minority) indefinitely without trial or charges.  And as much as I disagree with the administration’s “state secrets” claims, I realize any President is going to use them in the current environment.

But to make a broader point about all this, the thing that continues to stand out for me is the sheer abdication of responsibility by Congress.  It is Congress that should be defining a legal framework for this era, whether we’re calling it the War on Terror, the Long War, or ‘Overseas Contingency Operations’.  Otherwise, we’re stuck where we are right now, which means that whatever the president does can be undone by his successor, with the Supreme Court only able to say that certain activities are illegal, not what should replace them.  That job should belong to Congress, but they have yet to step up .

I would like to see a legal framework that eliminates military commissions, for example.  But if Congress passed a law that preserved the commission system with some additional defendant protections (here I risk raising the League’s hackles), I would probably be willing to accept such an outcome if it was the result of broader legislative deliberation.