Continuity and Change: Towards A Synthesis

I'm a little bit grouchy that the argument I made in this speech I keep linking to isn't more a part of the debate over continuity and change between the Bush and Obama administrations than it is. It's not just vanity (though I am certainly vain); it's that I think the argument that Jack and David Cole are having is missing an important nuance on which this speech focused. As many more people will read a New Republic article--or a Lawfare post--than will watch a 25-speech, I thought I would lay out the argument in writing. With apologies for the excessively long post, here it is: Jack is certainly correct that the left's disillusioned insistence on continuity between the administrations is recent. Only a few months ago, when I gave the speech, the dominant meme on left was still a triumphant, if awkward, insistence that there had been great change. This was the meme against which a few outliers--like Glenn Greenwald--positioned themselves as proud holdouts. And it was the meme against which Jack wrote his article positing continuity. The meme, you will recall, went something like this:  "We've restored the rule of law, we're closing Guantanamo, we've ended torture and secret prisons, and we're focusing on civilian trials!" Yet then the point would get muddy and liberals would have to admit some uncomfortable caveats that have since swallowed the rule and given rise to the new conventional wisdom against which David is now reacting. After all, Guantanamo didn't seem to be closing, and in any event, closing it didn't seem to imply a change of detention policy--just a change of location for that policy. The administration was arguing against federal court jurisdiction over Bagram. The secret prisons program was already empty when the President shuttered it; the military had long since stopped any aggressive interrogation; and military commissions remained available for trials that did not seem to be materializing in civilian court. What's more, the administration had actively ramped up the drones program; the President even boasted in his State of the Union address about the number of the enemy he was killing. There was a mirror image confusion on the right--one that has similarly not resolved with time. Conservatives like Dick Cheney thundered that Obama was endangering America, that he had returned to a dangerous pre-9/11 law enforcement mentality and didn't understand that America was at war. At the same time, they claimed a smug kind of vindication for the prior administration's approach at any sign of continuity with current policy. "He's endangering America," they seemed to be saying, "and look, he's adopted all of our policies!" The dualisms in both camps persist, and I think they persist for a reason: The question of continuity vs. change is actually complicated and subtle, and how one views it depends a great deal on the lens through which one examines the question. There are at least four important lenses--the substantive authorities claimed, the theoretical basis for those authorities, their tactical deployment, and their public presentation--that offer very different windows on the question. Examining those windows separately gives rise to the possibility of a synthesis of Jack's and David's positions. Let's look at them each briefly in turn. It is very difficult to see anything but continuity in the substantive authorities claimed by each administration. The Bush administration claimed the power to detain the enemy without criminal charge and to do so without federal court oversight. The Obama administration claims the power to detain the enemy without criminal charge and to do so without federal court oversight. The Bush administration claims the power to try people in both federal courts and military commissions, and so does the Obama administration. The Obama administration has not renounced the power to target individuals for death, to engage in warrantless wiretapping, or to render suspects to foreign custody. Even where the change appears most substantial in this area, interrogation, it is less substantial than it looks. The CIA program, after all, was moribund by the time Obama closed it, and the military was already out of the coercive interrogation business anyway. To put the matter bluntly, the Obama administration has not backed off of the substantive powers the Bush administration was still using in any significant way by the time it left office. If one examines the question through the lens of the theoretical basis for the claimed powers, however, a rather different picture emerges. The Obama administration has consistently eschewed grandiose claims of inherent executive power, preferring to rely on the AUMF. Both Jack and David agree that this change is significant, though Jack is correct that the Bush administration was moving towards this approach too in its later years. It reflects a different sense of the source of executive power and its limits. It is the difference, not to put too fine a point on it, between an executive guided by Jack Goldsmith and Curt Bradley (for it is invariably their writing on the AUMF that guides this view) and an executive guided by John Yoo. That's not just a rhetorical or packaging difference but a tectonic one; it is about the nature of the plates that move beneath the surface. One also sees great change in the tactical deployments of the claimed powers. Both administrations have claimed the state secrets privilege, for example, but they have not done so in the same way. The Obama administration's privilege claim in Al Aulaqi, which was careful and grudging and which specifically asked the court to rule on other grounds, has no analog in the Bush administration. While both administrations claim the ability to engage in extraordinary renditions, I am unaware of the Obama administration's actually doing so. It has clearly made a different tactical judgment about the value of Guantanamo than did the Bush administration--though not a different judgment about the necessity and legality of non-criminal detention. In the other direction, by contrast, the Obama administration has been far more aggressive in its use of drones than was the Bush administration. Across a range of areas, the tactical lens reveals changes dramatic and subtle--as well as large areas of continuity. Finally, there is the lens of public presentation. And here, I think, the change is genuinely profound. It was not merely important to the Bush administration that it deploy war powers but that it talk about them as such. It was not merely important that it use muscular presidential powers but that it emphasize that it was doing so--a kind of machismo untempered by regret. The Obama administration, by contrast, strikes an apologetic note. Even as it uses war powers, it speaks the language of criminal justice. It frequently seeks to emphasize its common ground with its critics on the left and with skeptics of the war on terror in Europe. Where the Bush administration thumped its chest, the Obama administration beats its breast. Even where the two administrations do the same thing for the same reasons, they sound very different in the process. I think these four lenses, placed on top of one another, give rise to a single synthetic explanation for the balance of continuity and change between the two administrations: The Obama administration accelerated and took to its logical conclusion every trend that was already under way in the latter years of the prior administration. Consider the following list:

• The Bush administration began the process of emptying Guantanamo, removing more than 500 of the nearly 800 detainees ever to pass through the facility. While President Bush said that he would like to close it, he could never bring himself to commit to the project, however. The Obama administration has continued the policy of transferring people where possible to do so responsibly and has gone the extra step of committing itself to closing Guantanamo entirely (though it hasn't been able to effectuate the commitment).
• The Bush administration banned coercive interrogation in the military and transferred all of the CIA secret prisoners to military custody but  never went the extra step of renouncing the further use of coercive interrogation by the CIA. In other words, it de facto closed the program but insisted on its propriety and wouldn't promise not to use it again. The Obama administration took the extra step and dismantled and repudiated the moribund shell of the program.
• The Bush administration began the process of institutionalizing military commissions in law and infusing them with greater due process norms with the MCA 2006. The Obama administration continued the process of institutionalizing military commissions in law and infusing them with greater due process norms with the MCA 2009.
• The Bush administration institutionalized the warrantless wiretapping program in law with the FISA Amendments Act. The Obama administration has been happy to live under this regime.
• The Bush administration began ramping up the use of drones. The Obama administration ramped it up even further.
• The Bush administration began deemphasizing claims of inherent executive power and emphasizing instead the AUMF (largely thanks to Jack). The Obama administration dropped the claims of inherent executive power altogether and relies exclusively on the AUMF.

I could go on, but you get the point. To put the matter simply, I have not thought of a single major area of the legal war on terror which this general thesis does not reasonably describe. And this synthetic view, in turn, gives rise to a larger point. For just as we can say that the Obama administration accelerated trends already under way in the Bush administration, we can say something similar about the relationship between the Bush and Clinton administrations. A fair bit of the leg work for what became the war on terror, after all, dates from the Clinton administration--the rendition program, and the notion of treating Al Qaeda people as combatants, for example, even the idea of using Guantanamo for detention because it lay outside of the purview of the federal courts. The broad point is that the curve of executive aggressiveness is far less connected to the specific administration in power than people imagine. New presidents catalyze new approaches and accelerate them, but the broad arc of the conflict is driven by circumstances; presidents are just along for the ride.