You don’t hear much whining from the Cheneys these days now that Obama’s claimed the Presidential right to assassinate American citizens, do you? But back in the summer of 2009:
The Bush team stopped using its harshest interrogation techniques, like waterboarding, years before leaving office. [Supposedly. – G.G.] And in Mr. Bush’s second term, Congress passed legislation bringing federal statutes into alignment with policies like military commissions and surveillance without warrants.
As a senator, Mr. Obama voted for the 2008 bill authorizing the surveillance program, which he has continued since taking office. He voted against a 2006 bill authorizing military commissions, but it passed anyway. While Mr. Obama initially halted the trials, he has since proposed reviving them in a revised form.
Mr. Obama has also drawn fire from human rights advocates for fighting to prevent detainees in Afghanistan from having habeas corpus rights. But his legal team notes that the 2006 Military Commissions Act contains a provision saying such prisoners may not challenge their detentions in court.
Still, Mr. Obama has also continued other Bush-era policies where statutory law is murkier or absent — like the C.I.A.’s “extraordinary rendition” program in which detainees are transferred to other countries and the invocation of the “state secrets” privilege to shut down some lawsuits. (The administration is reviewing both policies.)
And after grappling with how to close the prison at the naval base in Guantánamo Bay, Cuba, Mr. Obama proposed a new system of preventive detention to deal with those terrorism suspects who, he says, would be hard to prosecute and dangerous to release.
But Mr. Obama’s insistence that he would create such a preventive detention regime only with Congressional authorization may pose little pragmatic obstacle, because he can claim lawmakers have already granted it.
In 2004, the Supreme Court ruled, 5 to 4, that Mr. Bush could detain — indefinitely, without trial and on domestic soil — a man accused of fighting for the Taliban. It cited Congress’s authorization to use military force against the perpetrators of the 2001 attacks, which remains on the books.
To be sure, Mr. Obama has made some significant changes to Bush policies. He closed the Central Intelligence Agency’s long-term prisons and required strict adherence to antitorture rules. He also released secret legal memorandums about interrogation.
Those changes have opened him up to attacks from the right. In particular, former Vice President Dick Cheney accused Mr. Obama of abandoning the Bush-Cheney strategies, suggesting that Mr. Obama would bear direct responsibility for any future terrorist attack.
Mr. Obama has embraced Mr. Cheney’s premise that he is an agent of change, as his campaign rhetoric suggested he would be. In a speech in May, Mr. Obama described his policies as “a new direction from the last eight years.”
But Jack Goldsmith, a top legal official in the Bush administration, said the claim of a vast gulf between Mr. Obama’s counterterrorism policies and those at the end of Mr. Bush’s tenure was false.
“There is a faux debate that something new is afoot and both the Obama administration and Cheney have an interest in that being the case, but it’s just not true,” he said. “It just serves almost everyone’s political interests to make it seem like something brand new is happening, but it’s mostly window dressing for just what was going on before.”
Divide et imperum.
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