Over the weekend, Ruth Marcus made what I think is a pretty important point that I hadn't really considered. Responding to Jack Goldsmith's article in The New Republic asserting that Obama's national security policies are identical to Bush's, Marcus writes:
This is true only if you define "the Bush program" as what the courts and, to a shamefully lesser extent, Congress, had forced Bush to do by the end of his administration. Even similar-looking positions contain important differences whose significance Goldsmith minimizes. Obama suspended and then revived the military tribunals that Bush put in place -- but with improvements on excluding information obtained by coercion, limiting the use of hearsay and expanding access to lawyers.The civil liberties and military law experts I've spoken to have expressed concerns that the changes to the military commissions are minimal. But it's certainly true that the "Bush policy" as Goldsmith presents it wasn't the Bush policy as it was proposed. It was the Bush policy as modified significantly by the other branches of government, so it's not entirely accurate to say that Obama and Bush are offering the same policy. People like Goldsmith have an incentive to blur the differences because it vindicates their own work. That said, I'm not convinced there are significant differences.
Obama's military commissions policy also got a fairly low-key but significant endorsement from one of the most fervent critics of the original military commissions, Lt. Col. Darrel Vandeveld, the prosecutor who resigned from the Mohamed Jawad case because he didn't believe the military commissions under Bush were capable of dispensing justice.
[T]he Bush-Cheney administration left President Obama with a limited number of alternatives, all of them bad, and he has made rational decisions, devoid of hysteria or false emotion. The worst aspects of the commissions appear to be on their way to correction. It is impossible to criticize or condemn the president for acting decisively and quickly to restore America's role -- always an aspiration, imperfectly realized -- as an exemplar of transparency and fairness. As someone who has risked his life on the battlefield in Iraq, I can only express support for the commander in chief as he undertakes these enormously complex -- and costly -- decisions.
Vandeveld was a prosecutor in the military commissions--and he was also one of their harshest critics. His perspective on this should be taken seriously. At the same time, I have yet to hear a compelling argument for why or how Bush's mistakes have "forced" Obama to use military commissions, just that his decision to do so was prudent.
-- A. Serwer
