WASHINGTON — In 2008, many of Barack Obama’s supporters hoped the former constitutional law professor would overturn the most contentious legal precedents put in place post-9/11 by George W. Bush.
Five years later, some critics say Obama not only has failed to reverse key Bush policies on such issues as warrantless wiretapping, but has claimed a new level of executive power.
Two prominent legal activists, Jameel Jaffer, director of the ACLU’s Center for Democracy, and Georgetown University law professor David Cole wrestled Thursday with this aspect of Obama’s record during a panel discussion hosted by the Open Society Foundations.
The two differed on how much daylight existed between the legal implications of Bush and Obama’s national security policies. Cole argued that in many instances, the Obama administration has worked to apply old precedents to new national security challenges, doing so in a way that by and large embraces existing law rather than circumventing it, as was the case with Bush.
As evidence, he cited Obama’s closure of CIA black sites, his outlawing of enhanced interrogation techniques, and a 2010 case in which the White House argued a court had failed to properly bind its hands using international law, in the process granting the executive branch too much power. Cole contrasted this approach with that of Bush, whose administration, he said, created new extra-judicial realities, like Guantanamo Bay, that enabled its anti-terrorism policies to exist.
“I think there is a fundamental difference between an administration that takes the position that law should be thrust aside and treated as an obstacle, and an administration that says we should operate, and we must operate, within the law,” Cole said.
But while Jaffer agreed that significant differences existed between Bush and Obama, he focused instead on areas of overlap, such as the administration’s continued use of warrantless wiretapping and its efforts to keep suits challenging that power out of court.
“For anybody who thought in 2002 or 2003 that these were going to be emergency policies that were here for a short period of time, it should be alarming that these policies are still in place, and in many ways have been normalized and institutionalized,” Jaffer said.
However, the two were often on the same side. Both activists, for example, are involved in lawsuits challenging the legality of the 2011 drone killings of cleric Anwar al-Awlaki, his 16-year-old son, Abdulrahman al-Awlaki, and Samir Khan, all American citizens. The Obama administration has never formally admitted responsibility for the killings. Al-Awlaki was described by officials as an operational leader of al-Qaida, but no charges against him were presented in court. Officials have said the death of al-Awlaki’s son was an accident.
Cole and Jaffer also objected to the administration’s secrecy regarding its targeted killing program.
“What power could be more important than the power of the executive to kill American citizens and refuse to acknowledge that he has done so?” Cole said. “In a democracy, that can’t be secret.”
In reviewing the history of opposition to Obama’s policies, Cole and Jaffer said the activist community had at times extended a degree of leniency to the president that had not been given to Bush.
“Advocacy is in some ways easier when you’ve got a clear enemy than when you’ve got someone who’s a friend who you think is doing the wrong thing in various instances,” Cole said.
Both felt that human rights and civil liberties organizations had won significant victories during both administrations, despite the challenges presented by cases that routinely involve noncitizens whom the government often has portrayed as threats to national security.
Jaffer emphasized consistent opposition to American drone policy, and Cole highlighted the successful efforts of the British-based group Reprieve, which helped secure the release of numerous Guantanamo detainees.
“You have to do public advocacy and education,” Cole said. “I think bringing stories of abuse to light is probably the single most effective motivator of reform.”
Jaffer said people are too often willing to “trade somebody else’s liberty for their own security.”
“If the people who are being harmed by these policies are foreigners outside the United States, it’s not that easy to get people engaged on the issues,” he said. “But we have to find a way to try to do it.”