Has the Obama Administration Embraced Cheneyism?

(updated below with response from Glenn)

While I whole-heartedly concur with Glenn Greenwald's criticism of the methodology and sourcing of this Washington Post article, I do take issue with his view--which is now widely-shared in progressive circles--that "the Obama administration has aggressively defended, justified and embraced the overwhelming bulk of Bush/Cheney Terrorism policies -- the exact ones that caused liberals and Democrats to object so vehemently over the last eight years."

While I tend to agree with Glenn on most terrorism-related policy questions--and I believe progressives and those of us of who value civil liberties should continue to criticize and pressure the Obama administration on this front--I think that equating Obama's policies with those of the Bush administration fundamentally obscures the most dangerous and deplorable elements of the Bush/Cheney approach to terrorism policy.

The signature characteristic of Cheneyism was its disregard for existing legal restraints, best exemplified by the Bush administration's repeated willingness (via people John Yoo and David Addington) to embrace fringy (often patently frivolous) legal arguments to justify acting in ways that the law and the Constitution forbid.

It is easy to forget now, as we debate the policy merits of various provisions of the Patriot Act and FISA, that for years the Bush administration took the position (in secret) that it had the "inherent authority" to disregard those laws altogether, even as it was publicly pushing to have those laws passed or amended.

With respect to detainee policy, the Bush administration originally took the position that it could detain whomever it wanted (whether foreigner or U.S. citizen, at home or abroad) incommunicado for as long as it wanted. It took the position that these detainees were not subject to Geneva protections, were entitled to no process whatsoever, and could be interrogated through torture.

In a thoughtful post at Balkinzation, Deborah Pearlstein pushes back against the assertion--made with respect to detention authority--"that somehow in employing this authority President Obama is channeling Dick Cheney (or perhaps more specifically David Addington and John Yoo)." She writes:

So let’s just recall what their position on Gitmo detention actually was. First, the Bush Administration argued that the President could detain anyone as a matter of inherent authority under Article II of the Constitution. The Obama Administration rejected that position from the outset, and has relied squarely for its detention authority on congressional delegation. What’s the difference? Among other things (including even modest respect for the formal separation of powers), the acknowledgement that there are limits under law to the President’s power to detain. Second, the Bush Administration argued that the independent courts had no authority – none – to review the legality of the detentions at Guantanamo Bay. The Supreme Court – not once but effectively three times – rejected that view. One must credit the conservative-controlled Court and not the Obama Administration for that change. But there is no sense in which the review process available now at Guantanamo is related to the views of Dick Cheney. Third, the Bush Administration rejected the notion that international law, including the Geneva Conventions, could constrain its authority in any way. It invoked the Conventions when it thought them useful to enlarge executive authority. It otherwise elected to apply them only when it thought “consistent” with military “necessity.” Cheney did not believe in international law as law. At least so far, the Obama Administration does.

In adopting these positions, the Bush administration relied, all too often, on objectively indefensible legal arguments that ignored numerous criminal statutes, binding treaties, and controlling Supreme Court precedents.

While the Obama administration has adopted a number of policy positions I disagree with (some very strongly), to my knowledge it has not adopted any policies that lack a defensible legal foundation. And therein lies the core difference between Cheneyism and the approach of the current administration.

I think part of the confusion here stems from the reality that the law itself changed in numerous ways during Bush's eight years in office, sometimes for the worse and sometimes for the better. To go back to the example of detention policy, it's important to remember that while the Supreme Court rebuked the Bush administration on numerous occasions, in at least one significant case, the Bush administration won (at least partially). That was United States v. Hamdi in 2004, where the Court held that the 2001 Authorization for Use of Military Force (AUMF) implicitly granted the president the authority to detain a U.S. citizen (Hamdi), who was picked up in Afghanistan and later held in an U.S. brig, as an enemy combatant subject to the laws of war (i.e., indefinitely).

You can take issue with the Court's reasoning in that case (I certainly do), but it doesn't change the fact that Hamdi pretty clearly provides a legal basis to detain certain people indefinitely (or at least until the war in Afghanistan ends), regardless of whether they have committed any crimes. Relying on the Court's ruling in Hamdi to justify similar detentions can be criticized on a policy level, but it's certainly not an example of Cheneyism.

The same is true with respect to the State Secrets privilege. The Bush administration expanded the State Secrets privilege dramatically, turning it from an occasionally-invoked evidentiary rule to an oft-invoked justiciability rule. That move was rightly criticized, but the fact is that the Bush administration had considerable success in changing the state of the case law. Numerous cases were dismissed by federal courts on State Secrets grounds. Though this change did not come about via legislation, it is nevertheless true that the state of the law on this issue is much different now than it was in 2001. One is free to criticize the Obama administration for invoking a broad (by 2001 standards) interpretation of the State Secrets privilege, but that interpretation (sadly) now has some support in the case law. Whatever this is, it's not Cheneyism.

Similarly, for years the Bush administration operated in violation of FISA and the Patriot Act. FISA was eventually amended to legalize much of what had previously been done illegally. While I join others in calling for changes to those laws and believe the Obama administration deserves to be criticized for opposing such efforts, defending existing statutory authority is not remotely comparable to asserting a right to violate such statutes (and, in fact, repeatedly violating them).

It is certainly true that Obama is continuing many of the Bush administration's policies, but they're the policies from 2008, after the Bush administration's hand had been forced by the Courts or Congress had come to its rescue with legislation. In other words, Obama may not be going to great lengths to voluntarily impose constraints on existing executive authority, but I have not seen any evidence that he has embraced Cheneyism, i.e., that his administration is using highly dubious legal claims to expand executive power. To me, that is a fundamental difference. It is the difference between acting legally and illegally.

By all means, let's keep the pressure on Obama to do the right thing and support better policies, but in doing so, let's not lose sight of the fact that the primary criticism of the Bush administration was not that its terrorism policies were bad (though they were), but that they were illegal. Cheneyism, at its core, has little to do with policy and everything to do with process. It is exemplified by contempt for the rule of law and a willingness to disregard even clear legal constraints on executive power. So far at least, I have not seen evidence of that mentality in the Obama administration's approach to terrorism policy.

UPDATE: In the comments below, Glenn Greenwald writes:

A.L. - You're right that the Obama DOJ has not asserted Article II powers to violate the law. I said exactly that when writing about Obama's adoption of the Bush theory on indefinite detention 2 weeks ago: "It's true that the Obama administration, to its credit, is no longer relying on the theory that the President has 'inherent authority' to detain Terrorism suspects without charges, but that makes no practical difference since they claim the same exact power based on the AUMF."That's not insignificant. But it's not nearly as significant as you suggest, for three reasons:

(1) the Obama DOJ hasn't repudiated that position and can thus adopt it if they lose on their statutory claims;

(2) the effect on policy is zero -- the second-term of Bush/Cheney was marked by Congressional approval for most of the most radical policies (warrantless eavesdropping, denial of habeas corpus, military commissions). So while the legal theories have changed - and that's important to lawyers - the policies themselves haven't.

(3) You're way overstating the importance of process. Yes, claims of presidential omnipotence matters -- but so does the power to lock people up without trials, get lawsuits dismissed based on secrecy assertions, setting up legal black holes, rendering people to torturing countries with no due process, remaining opaque in national security areas, etc.

The policies themselves were every bit as much defining attributes of Bush/Cheney radicalism as the underlying legal claims. The fact that Obama found better legal arguments to justify the same policies is nice, but it's not much help to those caught up in -- victimized by -- all of that, and it's a huge stretch to say that the same exact policies in Obama's hands are fundamentally different all because the legal theories asserted by his DOJ are (at least for now) different.

I agree with virtually all of this, but as I responded in the comments, I think Glenn and I are, to some extent, talking past each other here. The point I was trying to make is more about the framing of the current debate than the substance of it.

My worry is that equating Obama with Bush/Cheney obscures the most troubling aspect of Cheneyism: its embrace of illegality. What we're having now is a policy debate (and a profoundly important one). But the debate we were having a few years ago was, at least in large part, a debate about the primacy of the rule of law. And I don't want people to come away with the impression that these are the same debates. They're not.

And it's not just because the DOJ's legal theories have changed. It's because the law itself has changed. What was once illegal is now legal. So what we're now debating are proposals to change or amend existing law to make it better. We're working within the democratic framework to try to effect policy change, which is how things are supposed to work. Three years ago we were debating whether the law even had to be followed.