http://www.nytimes.com/2009/02/18/us/polit...agewanted=print

 

February 18, 2009

Obama's War on Terror May Resemble Bush's in Some Areas

By CHARLIE SAVAGE

 

WASHINGTON Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush's "war on terrorism," the Obama administration is quietly signaling continued support for other major elements of its predecessor's approach to fighting Al Qaeda.

 

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.'s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

 

The administration has also embraced the Bush legal team's arguments that a lawsuit by former C.I.A. detainees should be shut down based on the "state secrets" doctrine. It has also left the door open to resuming military commission trials.

 

And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government "for its continued commitment to protect sensitive national security information."

 

These and other signs suggest that the administration's changes may turn out to be less sweeping than many had hoped or feared prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

 

In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush's approach to the world. But Mr. Craig also said President Obama intended to avoid any "shoot from the hip" and "bumper sticker slogans" approaches to deciding what to do with the counterterrorism policies he inherited.

 

"We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law," Mr. Craig said. "That is a message we would give to the civil liberties people as well as to the Bush people."

 

Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency's secret prisons, ordering the prison at Guantnamo Bay, Cuba, closed within a year and halting military commission trials.

 

But in more recent weeks, things have become murkier.

 

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law indefinite detention without a trial even if he were captured in a place like the Philippines rather than in a physical battle zone.

 

Ms. Kagan's support for an elastic interpretation of the "battlefield" amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

 

Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama's interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were "not sufficient" to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for "additional authority."

 

To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding a technique that induces the sensation of drowning, and that the Bush administration said was lawful is torture.

 

But Mr. Panetta also said the C.I.A. might continue its "extraordinary rendition" program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.

 

Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries some of which allegedly used torture for interrogation, not trials.

 

Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment the same safeguard the Bush administration used, and that critics say is ineffective.

 

Mr. Craig noted that while Mr. Obama decided "not to change the status quo immediately," he created a task force to study "rendition policy and what makes sense consistent with our obligation to protect the country."

 

He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to "find out the best case for continuing the practices that had been employed during the Bush administration."

 

Civil liberties groups praise Mr. Obama's early executive orders on national security, but say other signs are discouraging.

 

For example, Mr. Obama's Justice Department last week told an appeals court that the Bush administration was right to invoke "state secrets" to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.

 

Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, "It was literally just Bush redux exactly the same legal arguments that we saw the Bush administration present to the court."

 

Mr. Craig said Mr. Holder and others reviewed the case and "came to the conclusion that it was justified and necessary for national security" to maintain their predecessor's stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.

 

"Every president in my lifetime has invoked the state-secrets privilege," Mr. Craig said. "The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption."

 

Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case as opposed to withholding particular evidence.

 

The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an "enemy combatant" on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.

 

Addressing the executive-privilege dispute, Mr. Craig said: "The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle."

 

The administration's recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal's editorial page argued that "it seems that the Bush administration's antiterror architecture is gaining new legitimacy" as Mr. Obama's team embraces aspects of Mr. Bush's counterterrorism approach.

 

Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of "disappointing" recent events had heightened concerns that Mr. Obama might end up carrying forward "some of the most problematic policies of the Bush presidency."

 

Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush's antiterror strategy.

 

"We have been some of the most articulate and vociferous critics of the way the Bush administration handled things," Mr. Craig said. "There has been a dramatic change of direction."

Those are very narrow examples. Diplomacy will be a core feature of Obama's foreign policy, which was definitely not the case with Bush. We are already communicating with Iran. We're engaging many countries. This was not Bush's approach, I don't care what the NY Times says.

Obama has little choice unless he decides the US should retreat from its leadership role and live by the whim of regional warlords that control various areas of transit, or resources.

It's not surprising at all. I think you are misinterpreting why people voted for Obama. His appeal is more that he isn't going to go vigilante all across the globe like GWB seemed to want to do.

i think that all the non-liberals on the board should post pock shots on obama and his developing presidency each and every day, that way, we have some variety in the posting on the bullpen...oh wait...they ARE already crucifying him and his ONE month in office

It's not surprising at all. I think you are misinterpreting why people voted for Obama. His appeal is more that he isn't going to go vigilante all across the globe like GWB seemed to want to do.

I don't think that has much gravity.

 

While invading Iraq is certainly significant (and I'm not convinced that Obama would have voted against it if he were in the US Senate at the time), but I fail to see how the philosophy is any different. Neither have realized that perhaps the best way to ensure our national security is by refraining to promote democracy through force abroad.

 

Not to mention that both Obama and Biden fully supported Bush's desire to become involved in the Russian-Georgia affair.

 

Of course, I would also characterize Joseph Biden as being more of a "vigilante" in philosophy than Bush is. He was not opposed to being in Iraq, fully supported us being in Bosnia, and is itching to send troops into the Sudan.

 

As are most people who voted for Obama. This surprises you?

Where did I say that? It's irrelevant anyway.

 

One could argue that Iraq was a victim of human rights violations too. You are severely overstating the difference between the two men's ideologies. That doesn't mean using military force in such instances does not result in blowback, entangling quagmires, unnecessary loss of US military soldiers, and drains money that we don't have.

 

I never said otherwise, either.

More surprising good news on the terror war. Obama agrees with Bush and not with the unlawful combatants.

 

http://news.bbc.co.uk/2/hi/south_asia/7903005.stm

 

'No US rights' for Bagram inmates

 

Detainees being held at Bagram Air Base in Afghanistan cannot use US courts to challenge their detention, the US says.

 

The justice department ruled that some 600 so-called enemy combatants at Bagram have no constitutional rights.

 

Most have been arrested in Afghanistan on suspicion of waging a terrorist war against the US.

 

The move has disappointed human rights lawyers who had hoped the Obama administration would take a different line to that of George W Bush.

 

Prof Barbara Olshansky, the lead counsel in a legal challenge on behalf of four Bagram detainees, told the BBC the justice department's decision not to reform the rules was both surprising and "enormously disappointing".

 

The BBC's Kevin Connolly in Washington says the move has angered human rights lawyers, with one saying the new White House was endorsing the view of the old one, that prisons could be created and run outside the law.

 

It is certainly evidence that having set the tone for his administration by announcing plans to close Guantanamo Bay, Mr Obama intends to adopt a much more cautious approach to the problem of detainees held elsewhere by the US military, our correspondent says.

 

'Homicides admitted'

 

Last year, the US Supreme Court gave suspects held at the US Naval Base at Guantanamo Bay, Cuba, the right to challenge their detention.

 

Following that ruling, petitions were filed at a Washington district court on behalf of four detainees at Bagram.

 

The judge then gave the new administration an opportunity to refine the rules on appeals.

 

In a two-sentence filing, justice department lawyers said the new administration had decided not to change the government's position.

 

"Having considered the matter, the government adheres to its previously articulated position," said acting assistant Attorney General Michael Hertz in papers filed at the court.

 

The US justice department argues that Bagram differs from Guantanamo Bay because it is in an overseas war zone and prisoners there are being held as part of ongoing military action.

 

Prof Olshansky said the conditions at the Bagram facility, which is near the Afghan capital, Kabul, were worse than those at Guantanamo Bay, adding that there was a lack of due process available to detainees.

 

"The situation in Bagram is so far from anything like meeting the laws of war or the human rights treaties that we're bound to," she told the BBC.

 

"There are no military hearings where the detainees can present evidence," she added. "Torture has led to homicides there that have been admitted by the US."

 

"It's quite a severe situation, and yet the US is planning a $60m new prison to hold 1,100 more people there."

 

The US military considers Bagram detainees unlawful combatants who can be detained for as long as they are deemed a threat to Afghan national security.

I certainly don't classify the above as 'good news'.

I certainly don't classify the above as 'good news'.

 

That I dont get. You cant pamper their asses and expect them to speak. They are not US citizens so they do not deserve US rights. They had the stoppage of torture and that is enough.

I certainly don't classify the above as 'good news'.

 

That I dont get. You cant pamper their asses and expect them to speak. They are not US citizens so they do not deserve US rights. They had the stoppage of torture and that is enough.

Panetta said under certain circumstances they would ask for authority to use techniques other than the approved ones. To me what this means is that Obama has not taken torture off the table. He just has to walk a tight rope to keep his fans happy.

I certainly don't classify the above as 'good news'.

 

That I dont get. You cant pamper their asses and expect them to speak. They are not US citizens so they do not deserve US rights. They had the stoppage of torture and that is enough.

If they are guilty of something, CHARGE THEM WITH A CRIME. We are supposed to be a nation of LAWS, not ambiguity.

"Living our values doesn?t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture."

 

I'd say Obama better make damn sure there isn't any torture going on or it's going to be a shitstorm.

I certainly don't classify the above as 'good news'.

 

That I dont get. You cant pamper their asses and expect them to speak. They are not US citizens so they do not deserve US rights. They had the stoppage of torture and that is enough.

If they are guilty of something, CHARGE THEM WITH A CRIME. We are supposed to be a nation of LAWS, not ambiguity.

 

Yeah okay... so when they are going around chopping our reporters heads off and killing our soldiers... we can give them a "fair trial". They are not American citizens and they do not deserve American liberties. They do deserve humane treatment... i.e. no torture... but thats about it.

Couple of points

 

1) Biden is and has always been an interventionalist. His belief is similar to that of Samantha Power, in which they believe that the U.S. needs to intervene militarily, whether it be bombings, ground froces etc. whenever there is genocide or some sort of human rights violation going on. I personally don't agree with that policy, but its been his policy.

 

2) I always chuckle when I hear about the rights of these types of prisoners, because the issue is much more complex than people realize at first glance. In our constitution we adopt international treaty law as binding on domestic law as long as it isnt in contradiction with other principles in our Const. So should a person being held abroad be entitled to habeas corpus? What body of law should govern the proceedings? USMJ? Should we attempt to create a seperate international tribunal with its own set of laws and procedure after the fact ala ICTR and ICTY? Then we use words like torture. What are we using to base our definition of the term? Are we using the CAT definition? Maybe something else? I would need to do a lot of research that I dont have time for to answer half of these questions, but for the most part, it seems that how we treat them and what body of laws we use in determining their rights is completely arbitrary.

I certainly don't classify the above as 'good news'.

 

That I dont get. You cant pamper their asses and expect them to speak. They are not US citizens so they do not deserve US rights. They had the stoppage of torture and that is enough.

If they are guilty of something, CHARGE THEM WITH A CRIME. We are supposed to be a nation of LAWS, not ambiguity.

 

Yeah okay... so when they are going around chopping our reporters heads off and killing our soldiers... we can give them a "fair trial". They are not American citizens and they do not deserve American liberties. They do deserve humane treatment... i.e. no torture... but thats about it.

The last time I checked there were plenty of terrorists killing Americans before 9/11, and the ones we captured were tried, convicted, and sent to the Supermax prisons throughout the country. Plus, we have guys like Richard Reid (the shoe bomber) who were tried and convicted in regular court. You will never hear from them again.

 

Exactly what changed on 9/11 other than we were attacked on US soil? Nothing else. Terrorists can be locked up like anyone else, we have been doing it since the 1980s.

I certainly don't classify the above as 'good news'.

 

That I dont get. You cant pamper their asses and expect them to speak. They are not US citizens so they do not deserve US rights. They had the stoppage of torture and that is enough.

If they are guilty of something, CHARGE THEM WITH A CRIME. We are supposed to be a nation of LAWS, not ambiguity.

 

Yeah okay... so when they are going around chopping our reporters heads off and killing our soldiers... we can give them a "fair trial". They are not American citizens and they do not deserve American liberties. They do deserve humane treatment... i.e. no torture... but thats about it.

The last time I checked there were plenty of terrorists killing Americans before 9/11, and the ones we captured were tried, convicted, and sent to the Supermax prisons throughout the country. Plus, we have guys like Richard Reid (the shoe bomber) who were tried and convicted in regular court. You will never hear from them again.

 

Exactly what changed on 9/11 other than we were attacked on US soil? Nothing else. Terrorists can be locked up like anyone else, we have been doing it since the 1980s.

 

It's naive to think that 'terrorists' we captured before 9/11 all got their day in court.