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Obama Embraces Bush Policies on Secrecy, Rendition

By Jack M. Balkin

It?s only been a month and already the Wall Street Journal is gloating:

The larger story here is that the anti-antiterror lobby is losing the man it thought was its strongest ally. During his campaign, Mr. Obama talked as if he really believed that the Bush Administration was uniquely wicked on national security. Joe Biden cosponsored Senate legislation that would have prevented the executive branch from making state-secrets claims to shelve lawsuits, rather than shielding individual evidence from judicial (and public) scrutiny.

Now it seems that the Bush Administration's antiterror architecture is gaining new legitimacy, just as Eisenhower validated Truman's Cold War framework. Mr. Obama claims to have banned coercive interrogation techniques, except in those cases where more extreme measures are necessary to save lives. He says he'll shut down Gitmo in a year or so, but his subordinates -- including Elena Kagan during her confirmation hearings for Solicitor General this week -- admit that indefinite detention will still be necessary for some terrorists. He walked back his wiretap absolutism even before he was elected. Now the Administration has endorsed the same secrecy posture that he once found so offensive, merely saying that it will be used less frequently. We'll see.

These are all laudable signs of Mr. Obama's antiterror progress. Perhaps some day he'll acknowledge his debt to his predecessor.

The WSJ might be right in suggesting that the Obama team, upon entering office, suddenly became convinced of the wisdom of Bush?s policies. But there are other ways to read these positions that are less flattering to the former Administration.

Take the state secrets privilege. Promising to invoke the privilege ?less frequently? precisely identifies and rectifies what the Bush Administration did wrong: abusively invoke the privilege in unwarranted circumstances.

Take the closing of GITMO. Of course some of the detainees are dangerous (either because they were genuine terrorists beforehand or were converted by bitterness at their years in GITMO). The problem is that many are not, and they have been languishing for years in legal limbo. Of course it will be difficult to close. This was all Bush?s making. It is hardly an endorsement of Bush?s policies to struggle to clean up his disastrous mess.

Take the wiretap policies. The problem was not with wiretapping but with doing so outside the law.

Take torture. Obama plainly and unequivocally repudiated torture. The contrast with the ghoulish (belligerently defiant) public embrace of torture by Cheney, Yoo, and others, could not be starker.

A world of difference separates each of these positions. But the WSJ might be right. Time will tell.

Full post as published by Balkinization on February 13, 2009 (boomark / email).