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139 6 Conclusion In both liberal and conservatives circles, a certain confusion reigns regarding whether fundamentally the Obama administration ’s legal policies in counterterrorism matters reflect continuity with or change from those of the Bush administration. The confusion gives rise to a kind of dualism in the way that both broad political movements talk about the question. The liberal side, in its more exuberant moments, boasts that Obama has restored the rule of law, banned torture, declared the closure of Guantánamo, and moved to reclaim America’s moral leadership in the world. Yet having said those things, the same liberal voices have to mumble some uncomfortable admissions: Guantánamo remains open, and its population is declining no faster than it was during the Bush years; in any event, Bagram remains what Guant ánamo was. We still have military commissions. We still do warrantless wiretapping. The government still asserts the state secrets privilege to frustrate certain types of national security litigation. The Obama administration has actually ramped up the use of Predator drones to kill suspected enemies and has all but publicly declared that it reserves the right to go after a U.S. citizen under certain circumstances. And while the Obama administration has closed the CIA’s black sites and banned harsh interrogations, it hasn’t moved to change the law governing such matters; the sites 06-0491-1 ch6.indd 139 10/14/10 6:14 PM 140   Detention and Denial were empty anyway, the harsh interrogations, in practical terms at least, a thing of the past. The conservative side speaks with a mirror-image dualism. Conservative commentators bemoan the new administration’s supposed pre–September 11 law enforcement mentality. They thunder that the administration’s laxity endangers the nation. Some have attacked the federal employment of lawyers who once represented Guantánamo detainees, implying—or sometimes outright alleging—that a fifth column of al Qaeda sympathizers is now running the government of the United States. Yet conservatives also turn around and wax triumphant at the signs of continuity—the continuation of noncriminal detention, for example —claiming vindication for the prior administration’s policies in their adoption by its supposedly recklessly weak successor. “Obama is showing weakness,” conservatives seem to be claiming . “He thinks he’s fighting crime; he can’t face that it’s really war. And look, he’s adopted all of our policies!” That line of argument brings to mind the joke Woody Allen tells at the outset of Annie Hall, in which he describes two old Jewish ladies at a Catskill mountain resort, one of whom complains to the other that the food is terrible. “Yeah, I know,” her companion laments, “and such small portions!” There is a reason that both broad political camps evince such confusion: the question of whether the advent of the Obama administration represents a break with or an institutionalization of the prior administration’s policies actually is complicated. One gets a very different view of the matter depending on the axis along which one examines the question. If one looks at the substantive authorities that the two administrations have claimed, for example, one sees a great deal of continuity; by and large, the Obama administration hasn’t forsworn the option of taking the muscular actions that its predecessor claimed the right to take. Detention is a good example of that continuity, although the trend covers far more than detention alone. On the other hand, if one 06-0491-1 ch6.indd 140 10/14/10 6:14 PM Conclusion   141 looks instead at the legal theory under which the two administrations justified their actions, more discontinuity than continuity emerges. The Obama administration, unlike the Bush administration , does not make expansive claims of executive power but tends to rely more narrowly on the AUMF for its detention power. And the two administrations’ rhetoric differs even more. The Bush administration engaged in a certain amount of chest thumping about its terrorism policies; the Obama administration sounds an apologetic note, always emphasizing the values that it shares with those discomfited by aggressive tactics, even when deploying those very tactics. The Bush administration insisted on the propriety of Guantánamo, even as it quietly transferred hundreds of detainees out of the facility. The Obama administration, in contrast, accedes to the facility’s illegitimacy—indeed, insists that closing it is a national security imperative—even as it maintains it and defends the detentions there. In short, the picture looks very different depending on the...


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