David Cole breaks with many of Obama's civil-libertarian critics by defending the administration's record on national security and the rule of law:
To dismiss the changes Obama has introduced as merely rhetorical, however, as Goldsmith and others have done, is to miss the critical difference between lawless and law-abiding exercises of state power. The Constitution, domestic law, and international law permit democracies to take aggressive action to defend themselves against attacks like the ones we suffered on September 11. But they insist that when the state employs coercion to achieve security, it must abide by rules designed to forestall government abuse and respect human rights. Bush blatantly disregarded this principle; Obama has embraced it.
It is true that, by the end of his term, Bush had been compelled to curtail his most aggressive assertions of power. Waterboarding was out, many of the disappeared prisoners had been transferred to Guantánamo and identified, the military commissions had been improved, and courts were reviewing Guantánamo detentions. But Bush adopted these changes grudgingly, after losing before the courts, Congress, and public opinion. And as the declassified torture memos illustrate, his administration continued to obstinately reinterpret the laws against torture and cruel, inhuman, and degrading treatment in order to permit the CIA to do precisely what Congress, the courts, and international law had forbade. By contrast, Obama has willingly accepted the limits of law.
Critics on all sides undermine their credibility if they fail to acknowledge the significant differences between Obama and Bush. Liberals risk sounding as if no national security policy short of ordinary criminal law enforcement will suffice, while conservatives and moderates appear tone-deaf to the difference that the rule of law makes to the legitimacy of state power. For both advocates of civil liberties and defenders of Bush, it is tempting to accuse the Obama administration of being no better than its predecessor. But if we fail to recognize the changes he has instituted, we run the risk of contributing to a misleading historical narrative that will support future presidents who might choose to repeat Bush's errors. On issues of executive power, history can play an important role. Even if Obama himself is unlikely to unleash the tactics of the previous administration, a future president might justify doing so by pointing to the fact that observers from across the political spectrum agreed that both Bush and Obama had embraced the same policy.
I think this is a problematic defense, because it moves many of Obama's own goalposts. With Obama having previously promised to reverse Bush-era policies as a candidate, Cole suggests Obama deserves credit in part for not actively working against the restraints placed on Bush's unlimited assertions of executive power by the end of his second term. That the Obama administration asserts that it derives its powers from Congress rather than from "inherent" Article II authority is not insignificant, but in practice, many of the actual Bush-era policies remain in place. As Ben Wittes writes:
Imagine for a moment that Obama had promised during the campaign what he has in fact done: To continue non-criminal detention but to justify it only under the AUMF, to continue resisting federal court jurisdiction at Bagram, to escalate the use of Predator strikes (which he did promise, actually), to continue military commissions with certain legal adjustments, and to continue asserting the state secrets privilege. Under such circumstances, does anyone imagine that the left would have invested its hopes for restoring the rule of law in him? Of course not.
Other than the predator drone thing -- which produced an odd dynamic with hawkish John McCain ending up to the left of the president on the issue -- I think Wittes is largely right, but Cole might respond that this example by itself does not refute the argument that there are meaningful distinctions between the two administrations.
Cole's defense of Obama is not uncritical -- he notes that the administration's lack of transparency with issues like targeted killing and its failure to hold anyone accountable for torture make its return more likely. Still, coming from a lawyer who represented torture victim Mahar Arar and fought the administration in Holder v. Humanitarian Law Project, the argument that the administration has "made real, meaningful changes," from the Bush years does hold a particular kind of weight.
