Part One

CONTINUITY
3
Chapter One
+nr xrv xonx\r
+nr ctnnrx+ \nxi xis+n\+iox chose to respono |to the
9/11 attacks| with |a| series of unnecessary, self-inf licteo wounos,
which have gravely oiminisheo our global stanoing ano oamageo
our reputation for respecting the rule of law, saio Harolo Hongju
Koh, two months before the election of 2008, in a Senate hearing
on Restoring the Rule of Law.
1
Koh was at the time the oean
of Yale Law School. He was also the former Assistant Secretary
of State for Democracy, Human Rights ano Labor ouring the
Clinton aoministration, a passionate leaoer of the human rights
movement, ano a leaoing critic of the Bush aoministrations coun-
terterrorism policies. After summing up his inoictment of Bush-
era sins, the man who the following year woulo become Barack
Obamas top State Department lawyer lookeo to the future. As
oifficult as the last seven years have been, Koh saio, they loom
far less important in the grano scheme of things than the next
eight, which will oetermine whether the penoulum of U.S. policy
swings back from the extreme place to which it has been pusheo,
or stays stuck in a new normal position unoer which our policies
towaro national security, law ano human rights remain wholly
subsumeo by the War on Terror. Koh urgeo the next Fresioent
to reject the Bush paraoigm ano unambiguously reassert our his-
4 rovrn \xn coxs+n\ix+
toric commitments to human rights ano the rule of law as a major
source of our moral authority.
2
This is precisely what Barack Obama hao promiseo to oo. As a
senator ano on the campaign trail, Obama hao blasteo the Bush
approach to military oetention, military commissions, interroga-
tion, renoition, surveillance, ano more, suggesting that the Bush
tactics were un-American. I will make clear that the oays of
compromising our values are over, saio the then Senator Obama
in a typical campaign speech, in 2007, at the Wooorow Wilson
International Center. We cannot win a war unless we maintain
the high grouno. Obama pleogeo that if electeo, |w|e will again
set an example for the worlo that the law is not subject to the
whims of stubborn rulers, ano that justice is not arbitrary.
3
He
reiterateo these themes in his inaugural aooress on the first oay
of his presioency. Our Iounoing Iathers, faceo with perils that
we can scarcely imagine, orafteo a charter to assure the rule of
law ano the rights of mana charter expanoeo by the blooo of
generations, he saio to applause from supporters on the National
Mall ano arouno the country. Those ioeals still light the worlo,
ano we will not give them up for expeoience sake.
!
Obama moveo quickly to fulfill these promises. Within hours
of his inaugural aooress, he suspenoeo military commissions
ano reverseo some Bush-era secrecy rules. Two oays later, ano to
greater fanfare, he signeo executive oroers that banneo torture,
closeo CIA black sites, pleogeo aoherence to the Geneva Conven-
tions, promiseo to close the oetention center at Guantanamo Bay
,commonly referreo to as GTMO, within a year, ano estab-
lisheo a task force to give him new options for the apprehension,
oetention, trial, transfer, release, or other oisposition of terror-
ist oetainees.

|O|ur ioeals give us the strength ano moral high

grouno to combat terrorism, Obama saio, just before signing the
legal oocuments.
o
These events createo a conspicuous sense of oramatic change
in the nations capitala sense that the American people hao
rejecteo the counterterrorism policies of the Bush era, ano that
seven years of aggressive tactics hao come to a screeching halt.
The New Normal 5
Bushs War on Terror Comes to a Suooen Eno, announceo
the Washington Post the next oay, in a typical heaoline. With the
stroke of his pen, the article reporteo, Fresioent Obama effec-
tively oeclareo an eno to the war on terror, as Fresioent George
W. Bush hao oefineo it.
7
But it was not to be. Contrary to nearly everyones expecta-
tions, the Obama aoministration woulo continue almost all of its
preoecessors policies, transforming what hao seemeo extraoroi-
nary unoer the Bush regime into the new normal of American
counterterrorism policy.
8
Btsn \rnsts On\x\
In retrospect, what is remarkable about canoioate Obamas criti-
cisms of the Bush counterterrorism program is how much subtle
wiggle room they left the future Fresioent. Once in office, the
Obama aoministration exploiteo this wiggle room in some areas
ano oeparteo from campaign pleoges in others. The bottom line
is that it copieo most of the Bush counterterrorism program as it
stooo in late 2008, expanoeo some of it, ano narroweo a bit.
War versus Crime. The Bush aoministration claimeo that the Uniteo
States was in a state of war with al Qaeoa ano its affiliates ano
that the Fresioents full powers as Commanoer in Chief were in
force. It claimeo two sources of authority for these conclusions: the
Fresioents power as Chief Executive ano Commanoer in Chief to
respono to an attack on the country, ano Congresss September
18, 2001, authorization for the Fresioent to use all necessary ano
appropriate force against those nations, organizations, or persons
he oetermines planneo, authorizeo, committeo, or aioeo the 9/11
terrorist attacks.
9
Many of the Bush aoministrations most contro-
versial policiesincluoing military oetention without trial, military
commissions, ano targeteo killingoepenoeo on this argument.
Canoioate Obama saio nothing concrete about this issue on
the campaign trail. But many Obama supporters, incluoing some
who woulo serve in the Obama aoministration, oisputeo Bushs
6 rovrn \xn coxs+n\ix+
war powers characterization. They maintaineo that the legal
weapons of the criminal justice systemarrest, extraoition, civil-
ian trials, ano the likesufficeo to meet the terror threat.
10
In
its secono month in office, however, the Obama aoministration
embraceo the war characterization, relying on the secono Bush
rationale. The September 18, 2001, congressional authorization
empowers the Fresioent to use all necessary ano appropriate
force to prosecute the war against al Qaeoa ano its affiliates,
Obama lawyers argueo in a legal brief oefenoing oetention with-
out trial of a Guantanamo oetainee.
11
They also copieo the Bush
aoministration in arguing that the Fresioents power is not lim-
iteo to persons captureo on the battlefielos of Afghanistan.
12
Any
such limitation, they argueo, woulo unouly hinoer both the Fres-
ioents ability to protect our country from future acts of terrorism
ano his ability to gather vital intelligence regaroing the capability,
operations, ano intentions of this elusive ano cunning aoversary.
13

The Obama lawyers aooitionally maintaineo, like their preoeces-
sors, that courts shoulo oefer to the Fresioents juogment about
the meaning of the congressional authorization.
1!
Military Detention. One of the most controversial Bush counterter-
rorism practices was the military oetention of terrorist suspects
without charge or trial. Canoioate Obama criticizeo this practice
on the grouno that it oio not give oetainees aoequate rights. But
while some of his campaign aovisers suggesteo that the practice
shoulo be abolisheo, Obama never oio.
1
Nonetheless, the many
Obama supporters who thought he woulo eliminate military
oetention were given hope when his initial executive oroers man-
oateo a task force review of the Bush military oetention process.
They were oisappointeo when Fresioent Obama, in a May 2009
speech from the room at the National Archives where the Consti-
tution ano Bill of Rights are on oisplay, stateo that some oetain-
ees who cannot be prosecuteo yet who pose a clear oanger to
the American people might not be releaseo.
1o
Obamas Guan-
tanamo Review Task Iorce formally concluoeo in ]anuary 2009
that at least !8 oetainees fit this category, though the number of
The New Normal 7
people in military oetention at Guantanamo Bay, Cuba, in late
2011 woulo remain closer to 17 because the task forces ambi-
tions for transfers ano prosecutions oio not pan out.
17
In March
2011, Obama issueo an executive oroer for periooic review of the
GTMO oetainees. The review was more generous to the oetain-
ees than an analogous Bush program, but it receiveo the most
attention for its official recognition, unoer Fresioent Obamas sig-
nature, of the inoefinite military oetention that many believeo he
woulo abolish.
18
The justification for military oetention without trial, Fresioent
Obama explaineo in his Archives speech, is that some terrorist
oetainees who cannot be prosecuteo nonetheless pose a threat to
the security of the Uniteo States.
19
This was the same policy ratio-
nale the Bush aoministration gave for military oetention. Obamas
lawyers also copieo the Bush legal rationale. They argueo that the
September 2001 congressional authorization alloweo the Fresi-
oent to oetain inoefinitely, without charge or trial, members of al
Qaeoa, the Taliban, ano associateo forces, even if captureo out-
sioe Afghanistan.
20
This formulation was ioentical to Bushs except
that the Bush lawyers extenoeo oetention power to those who sup-
port terrorist groups, while the Obama lawyers extenoeo it only
to those who substantially support these groups.
21
The Obama
teams broao oefinition of those who can be helo . . . was not
significantly oifferent from the one useo by the Bush aoministra-
tion, concluoeo the New York Times.
22
Ieoeral District Court ]uoge
Reggie Waltonagreeo, noting that the Obama refinements orew
a metaphysical oifference with the Bush position of a mini-
mal if not ephemeral character.
23
Later iterations of the Obama
position orew fine legal oistinctions that the Bush aoministration
might not have orawn ,we can never know,, but these oistinctions
hao no oiscernible impact on the scope of oetention.
Military Commissions. In November 2001, Fresioent Bush authorizeo
the establishment of military commissions to try suspecteo terror-
ists.
2!
Commissions are courts run by the military to try enemy
forces for war crimes ano relateo offenses. They have special rules
8 rovrn \xn coxs+n\ix+
about evioence, secrecy, ano other matters that make it easier
to convict a oefenoant than in an oroinary civilian court. They
also make it easier to convict than in a court-martial, the military
court governeo by the Uniform Cooe of Military ]ustice that is
useo to prosecute U.S. soloiers ano is in most respects like civilian
trials. The Bush commissions sparkeo controversy because they
oeparteo sharply from oroinary stanoaros of civilian justice, ano
because Fresioent Bush announceo their establishment without
consulting Congress or his National Security Council. After years
of controversy, the Supreme Court in 200o invalioateo the Bush
commissions on the grouno that they were inconsistent with a feo-
eral statute.
2
When Fresioent Bush sought to rectify the oecision
by getting Congress on boaro, Senator Obama voteo against the
subsequent bill, which he oescribeo as sloppy ano not a real
military system of justice.
2o
Obama was at the time open to, ano
voteo to support, a military commission with greater oefenoant
protections.
27
But by 2008, Obama seemeo to reject the use of mil-
itary commissions ,as opposeo to courts-martial, unoer any cir-
cumstances. Its time to better protect the American people ano
our values by bringing swift ano sure justice to terrorists through
our courts ano our Uniform Cooe of Military ]ustice, he saio.
28
Against this backgrouno, Obamas 120-oay suspension of mil-
itary commissions at the oawn of his presioency leo most of his
supporters to assume that commissions were oeao. Mr. Obama
rightly oenounceo the tribunals ouring the campaign, ano we
were oelighteo to see him shut them oown so swiftly now that he
is in the White House, cheereo the New York Times eoitorial page.
The Times presumeo that the suspension rather than the termina-
tion of military commissions was a legal nicety, for |t|here is no
gooo reason to restart these trials.
29
But it was not a legal nicety.
After an intense review, the aoministration concluoeo that commis-
sions were a necessary legal weapon in the Commanoer in Chiefs
arsenal. It reacheo this conclusion, as Obama later explaineo,
because commissions allow for the protection of sensitive sources
ano methoos of intelligence-gathering, they allow for the safety ano
security of participants, ano for the presentation of evioence gath-
The New Normal 9
ereo from the battlefielo that cannot always be effectively presenteo
in feoeral courts.
30
This was precisely the Bush rationale.
Obama oio seek aooitional reforms to commissions to oisallow
certain evioence obtaineo from coercion, to make it haroer for the
government to use hearsay evioence, ano to give oetainees more
freeoom to choose attorneys. Congress went along in the summer
of 2009. The change on oefense lawyers was practically no change
at all. The change on hearsay maintaineo the flexibility to use it
but placeo the buroen of proof on the government. The change
on coerceo evioence was real but not large because there was a
high, ano in practice probably insurmountable, bar to its use unoer
the olo rules.
31
Iormer chief prosecutor for military commissions
Colonel Morris Davis exaggerateo a bit when he noteo that the
2009 reforms were nothing more than a lightly reviseo version of
the same commissions that Congress approveo, ano Obama criti-
cizeo, in 200o.
32
The 2009 reforms probably increaseo the reliabil-
ity of commission aojuoications at the margins. But Morris is right
to suggest that these were not large changes from the 200o baseline.
Moreover, even after the Obama reforms, the government
still retaineo large aovantages with the commissions, compareo
to civilian trials or courts-martialaovantages that hao maoe
them repugnant to many ouring the Bush years. Unlike a civilian
trial, where unanimity is neeoeo for conviction before a civilian
jury, in military commissions a two-thiros rule before a military
jury prevails. A military commission neeo not reao the oefenoant
Miranda warnings to use his statements against him, ano is not
bouno by the same rules of evioence or witness confrontation as
in a civilian trial. Military commission trials are also easier to
close to the public than civilian trials.
33
These are some of the rea-
sons why civil liberties groups oeclareo, as Amnesty International
put it, that Obamas embrace of commissions, even as reviseo,
backtracks on a major campaign promise to change the way the
Uniteo States fights terrorism.
3!
Forum Discretion. Civil libertarians oisappointeo with Obamas war
framework ano his aooption of military oetentions ano military
10 rovrn \xn coxs+n\ix+
commissions founo solace when Attorney General Eric Holoer
announceo in November 2009 that 9/11 mastermino Khalio
Sheikh Mohammeo woulo be lifteo from the military commis-
sion where Bush hao placeo him ,ano where he hao trieo to pleao
guilty, ano woulo be prosecuteo insteao before a civilian court in
New York. This was not the raoical oeparture from the Bush era
that it was portrayeo to be. The Bush aoministration prosecuteo
hunoreos of terrorists in civilian trials, incluoing 9/11 conspira-
tor Zacarias Moussaoui, American Taliban ]ohn Walker Linoh,
ano allegeo oirty bomber ]ose Faoilla. Holoer unoerlineo the
broaoer continuity with the Bush era when he announceo, in the
press conference that revealeo Khalio Sheikh Mohammeos trans-
fer to civilian trial, that a half-oozen other terrorists woulo be trieo
by military commission. Even more oiscouraging for those who
hopeo for change, Holoer also saio he woulo follow the Bush policy
of holoing Khalio Shiekh Mohammeo ano other terrorists in mili-
tary oetention inoefinitely if they are acquitteo at trial or receive a
short sentence. I certainly think that unoer the regime that we are
contemplating, the potential for oetaining people unoer the laws of
war, we woulo retain that ability, saio Holoer.
3
The muteo civil libertarian cheers that greeteo Holoers
announcement that he woulo try Khalio Sheikh Mohammeo in
a civilian court turneo to cries of anger when Holoer was unable
to follow through. New York officials, Democrat ano Republican,
opposeo a trial in the state. Congress eventually cut off funoing
for any trials of GTMO oetainees in the Uniteo States, incluo-
ing Mohammeo. Holoer trieo to fino ways to circumvent these
restrictions, but he hao little political support in the aoministra-
tion ano he eventually gave in to political reality. In April 2011 he
announceo that Khalio Sheikh Mohammeo, who hao spent the
first two years of the Obama aoministration in military oetention,
woulo not be trieo in civilian court after all. Insteao, he woulo be
sent back to a military commission, where he hao been at the eno
of the Bush aoministration, trying to pleao guilty.
Inherent in senoing Khalio Sheikh Mohammeo back ano forth
between oifferent legal systems is yet another point of continu-
The New Normal 11
ity between the two aoministrations. The Bush aoministration
claimeo the oiscretion to choose among three oifferent venues
civilian trial, military commission, or military oetentionfor
putting away terrorists. This oiscretion alloweo it to place three
9/11 conspirators in three oifferent systems: Zacarias Moussaoui
was trieo in civilian court, Mohammeo al-Kahtani, the real twen-
tieth hijacker, has been in military oetention on Guantanamo Bay
since 2002, ano Khalio Sheikh Mohammeo was first a high-level
military oetainee, then in the military commission system, then
on his way to the civilian system, ano now resioes once again
in the commission system. The Obama aoministration trieo to
articulate principleo criteria for which terrorists shoulo go in
which system.
3o
But it steaofastly retaineo the option of using any
of the three systems in its oiscretion. I oont think we can afforo
to limit our options unouly in an artificial way or to yielo to sort
of preconceiveo a priori notions of suitability or correctness, saio
Davio Kris, the ]ustice Departments top national security lawyer,
oefenoing the right to use oifferent systems. |W|hen we look at
the tools that are available to us consistent with our values, weve
got to use the tool that is oesigneo best for the particular national
security problem that we fino ourselves facing.
37
Guantanamo Bay. Nearly everyone assumeo that Fresioent Obama
woulo follow through on his first-week presioential oroer to close
the Guantanamo Bay oetention facility within one year. But not
Vice Fresioent Richaro Cheney. I think theyll oiscover that
trying to close it |Guantanamo Bay| is a very haro proposi-
tion, he saio in December 2008.
38
Cheney was right, ano in late
2011, the islano facility is open ano will be inoefinitely. There
were many reasons why Obama faileo in his first-week pleoge.
Early aoministration hopes that the oetainees coulo be prose-
cuteo, transferreo, or releaseo proveo fanciful. Ioreign govern-
ments accepteo fewer oetainees than anticipateo oespite offers of
money, presioential face time, ano other favors.
39
Ano a lengthy
ano haroer-than-expecteo review of oetainee files inoicateo that
many of them were too oangerous to release ano coulo not easily
12 rovrn \xn coxs+n\ix+
be prosecuteo. This meant that GTMO coulo be closeo only if
some oetainees were transferreo to the Uniteo States for oeten-
tion. But this proveo an impossible task for which the aoministra-
tionpossessing limiteo political capital, ano preoccupieo with
health care reform in 2009never properly organizeo.
!0
It oiont
settle on a potential venue to house the GTMO oetainees until
December 2009. But in oroer to house terrorist oetainees, the
prison requireo significant alterations that woulo take months
ano perhaps years to implement because of a slew of complex
environmental, fiscal, ano government contracting laws. By that
time Congress hao turneo sharply against any plan to bring
oetainees to the Uniteo States. Beginning in May 2009 ano more
firmly thereafter, it barreo the aoministration from spenoing any
money to transfer the oetainees to the Uniteo States, effectively
preventing the Fresioent from keeping a central campaign prom-
ise. Obviously I havent been able to make the case right now,
Fresioent Obama saio in April 2011, ano without Congresss
cooperation, we cant oo it.
!1
Habeas Corpus. Iormer law professor Barack Obama was an elo-
quent oefenoer of habeas corpus, the juoicial writ of freeoom that
permits any person in executive custooy to ask a court to review
the legality of the oetention. |R|estricting somebooys right to
challenge their imprisonment inoefinitely is not going to make
us safer, he saio in the Senate, explaining his vote against a law
that eliminateo habeas corpus for oetainees outsioe the Uniteo
States.
!2
On the campaign trail, Obama rejecteo the false choice
between fighting terrorism ano respecting habeas corpus, ano
oescribeo habeas corpus as the founoation of Anglo-American
law ano the essence of who we are.
!3
When the Supreme Court
in the summer of 2008 ruleo that habeas corpus rights must
exteno to GTMO, Obama cheereo.
!!
The ruling was a rejec-
tion of the Bush Aoministrations attempt to create a legal black
hole at Guantanamo, he saio. This is an important step towaro
reestablishing our creoibility as a nation committeo to the rule of
law, he aooeo, noting that |o|ur courts have employeo habeas
The New Normal 13
corpus with rigor ano fairness for more than two centuries, ano
we must continue to oo so as we oefeno the freeoom that violent
extremists seek to oestroy.
!
The Bush aoministration accepteo the Supreme Courts 2008
oecision but argueo that habeas corpus shoulo not exteno to per-
sons oetaineo beyono Guantanamo, in places like Afghanistan,
where hunoreos of enemy soloiers were oetaineo without charge
or trial. Canoioate Obama was silent on this issue, but his oefense
of habeas corpus ano his oescription of places beyono the habeas
writ as legal black holes leo many to assume that he woulo
reject the Bush position. But he oio not. Having consioereo the
matter, the government aoheres to its previously articulateo posi-
tion, an Obama lawyer in 2009 tolo Ieoeral District Court ]uoge
]ohn Bates, who was consioering the fate of some oetainees in
Afghanistan.
!o
The Obama aoministration has embrac|eo| a
key argument of former Fresioent Bushs legal team, noteo the
New York Times.
!7
When ]uoge Bates rejecteo the argument, the
Obama lawyers appealeo ano won what the Times oescribeo as
a broao victory ... in its efforts to holo terrorism suspects over-
seas for inoefinite perioos without juoicial oversight.
!8
The news-
papers gave less attention to the fact that early on, motivateo in
part to feno off habeas corpus review in Afghanistan, the Obama
aoministration hao begun to raise the stanoaros of the screening
ano oetention proceoures for suspects helo in Afghanistan. These
more rigorous proceoures woulo be applieo to a military oeten-
tion population in Afghanistan that by 2011 hao spikeo to more
than treble the size of the population unoer Bush.
!9
Global Targeted Killing. Fresioent Obama continueo the Bush
aoministration practice of targeting ano killing enemy suspects in
Fakistan, Somalia, Yemen, ano other places outsioe a traoitional
battlefielo ano insioe countries with which the Uniteo States is
not at war. But here one cannot charge Obama with any incon-
sistency, for he was clear on the campaign trail that he woulo
target ano kill members of al Qaeoa ano its affiliates wherever
in the worlo they might be founo. The Bush aoministration
14 rovrn \xn coxs+n\ix+
has not acteo aggressively enough to go after al-Qaeoas leaoer-
ship, Obama saio in a 2008 interview. I woulo be clear that if
Fakistan cannot or will not take out al-Qaeoa leaoership when
we have actionable intelligence about their whereabouts, we will
act to protect the American people. There can be no safe haven
for al-Qaeoa terrorists who killeo thousanos of Americans ano
threaten our homelano tooay.
0
Obama fulfilleo this promise in oramatic fashion with his
approval of Operation Neptune Spear, the oaring ano oangerous
operation that killeo Osama Bin Laoen in Abbottabao, Fakistan,
on May 2, 2011. But in truth he hao aohereo to this promise
long before then. In a oozen nations outsioe of Afghanistan ano
Iraq, the Obama aoministration has significantly increaseo
military ano intelligence operations, pursuing the enemy using
robotic orones ano commanoo teams, paying contractors to spy
ano training local operatives to chase terrorists, reporteo the
New York Times in August 2010.
1
The aoministration has been
especially fono of using unmanneo Freoator orones for targeteo
killings of enemy terrorists. It rampeo up orone attacks quite a
bit, using them more frequently ouring Obamas first year than
Bush hao in the previous seven combineo. Many human rights
groups criticizeo these attacks as illegal assassinations or extra-
juoicial killings, ano some accuseo the Obama aoministration
of war crimes. But the aoministration has been unmoveo. |V|
ery frankly, its the only game in town in terms of confront-
ing ano trying to oisrupt the al Qaeoa leaoership, saio CIA
Director Leon Fanetta.
2
Fresioent Obama himself reporteoly
approveo the targeteo killing of a suspecteo terrorist who was a
U.S. citizen.
3
Rendition. An important Bush counterterrorism tool was renoi-
tion, the practice of taking a person from one country to another,
outsioe juoicial process ano against the persons will, for purposes
of trial or interrogation. On the campaign trail, Barack Obama
maoe it seem like he opposeo this practice. Its time to show
the worlo that we are not a country that ships prisoners in the
The New Normal 15
oeao of night to be tortureo in far off countries, Obama woulo
often say.
!
Many people thought this meant that Obama woulo
officially eno the practice. But very early on, his aoministration
maoe clear that it woulo keep renoitions on the table. Obviously
you neeo to preserve some toolsyou still have to go after the
bao guys, saio an anonymous Obama official in late ]anuary
2009. If renoition is oone within certain parameters, it is an
acceptable practice.

During his confirmation hearing for CIA Director a few oays

later, Leon Fanetta maoe official that the new aoministration
woulo continue renoitions, but he pleogeo that it woulo not renoer
suspects for purposes of torture. Many saw this position as a rejec-
tion of the Bush practice. But Fanetta also saio, to less meoia
notice, that the new aoministration woulo use the Bush-era legal
test, which barreo renoitions only when it is more likely than
notthat is, a greater than 0 percent chancethat the sus-
pect will be subjecteo to torture.
o
When Obamas Special Task
Iorce on Interrogations ano Transfer Folicies recommenoeo seven
months later that renoitions continue, it oio not renounce this
stanoaro, but rather saio it woulo make recommenoations aimeo
ano clarifying ano strengthening U.S. proceoures for evaluat-
ing assurances from the receiving country ano for monitoring
claims about torture.
7
Human rights groups oio not see a change.
It is extremely oisappointing that the Obama aoministration is
continuing the Bush aoministration practice of relying on oiplo-
matic assurances, which have been proven completely ineffective
in preventing torture, saio ACLU lawyer Amrit Singh.
8
Because the public knows little about how the Obama aominis-
tration actually conoucts renoitions, it is unclear how, if at all, the
actual practice changeo unoer Obama from the late Bush perioo.
There have been reports, however, that the Obama aoministra-
tion has continueo the later Bush-era practice of outsourcing ren-
oition. In a practice that began in the last two years of the Bush
aoministration ano has gaineo momentum unoer Mr. Obama,
the New York Times reporteo in May 2009, the Uniteo States is
now relying heavily on foreign intelligence services to capture,
16 rovrn \xn coxs+n\ix+
interrogate ano oetain all but the highest-level terrorist suspects
seizeo outsioe the battlefielos of Iraq ano Afghanistan.
9
Black Sites. In its first week the Obama aoministration oismantleo
the Bush system of secret overseas prisons ,so-calleo black sites,
for high-value oetainees. This is a real oeparture from the Bush
regime, but less of a oeparture than meets the eye. Ior the last two
years of Bushs presioency, the black sites were practically empty.
During this perioo, the New York Times reporteo, only two ter-
rorists were brought to the sites for a few months before being
transferreo to GTMO.
o0
In aooition, Obamas ]anuary 2009
oroer to close secret prisons containeo two little-noticeo loopholes:
it applieo only to CIA prisons ,not military prisons,, ano it oio
not apply to facilities that holo people on a short-term, transi-
tory basis.
o1
One implication of these loopholes became appar-
ent when the New York Times reporteo in ]une 2009 that Obamas
Department of Defense was holoing oetainees at a so-calleo black
jail aojacent to the Bagram prison with no access to the Reo Cross
for weeks at a time.
o2
Accoroing to several reports, the oetainees
at this jail are sometimes subject to tougher interrogation methoos
than those approveo for oroinary oetainees, in accoroance with
Appenoix M of the Army Iielo Manual.
o3
Surveillance. In the summer of 2008, canoioate Obama voteo to
put Fresioent Bushs unilateral warrantless wiretapping program,
which he hao opposeo as an abuse of presioential power, on a
legally more oefensible statutory basis. Obama supporteo the bill
even though it gave telecommunication firms that cooperateo
with Fresioent Bush immunity from lawsuits, a provision Obama
oislikeo. In office, Fresioent Obama has not renounceo or sought
to narrow any of the surveillance powers in use at the eno of the
Bush aoministration, ano has not sought legislation to reverse the
telecoms immunity. This is perhaps unsurprising since Obama
voteo for the law. Obama oio surprise many, however, when he
successfully urgeo Congress to exteno the FATRIOT Act ano
faileo to take any steps to fulfill his campaign pleoge to strengthen
The New Normal 17
the Frivacy ano Civil Liberties Oversight Boaro, which oversees
ano protects civil liberties in intelligence gathering.
o!
Obama also enhanceo the oomestic role of the National
Security Agency, Americas powerful ano super-secret signals
intelligence organization that operateo Bushs controversial Ter-
rorist Surveillance Frogram. Obama placeo the NSA in charge
of Cyber Commano, the new military combatant commano
in charge of cooroinating Americas offensive cyber weapons
with its cyber oefense of homelano critical infrastructure.
o
He
approveo the construction of a super-secret, S1. billion, one-mil-
lion-square-foot NSA oata center at Camp Williams, Utah, that
will provioe critical support to national cybersecurity priorities
ano intelligence ano warnings relateo to cybersecurity threats,
cybersecurity support to oefense ano civilian agency networks,
ano technical assistance to the Department of Homelano Secu-
rity.
oo
Ano his ]ustice Department sought ano asserteo aooitional
authorities to make oomestic wiretapping ano recoro collection
easier.
o7
There is no reason to think that Obama is circumventing
surveillance laws the way the Bush aoministration oio in its early
years. But there is also no reason to think he has backeo away
from Bushs later surveillance practices. If anything, Obama has
expanoeo them.
Secrecy. Canoioate Obama criticizeo excessive secrecy in the
Bush aoministration, ano on his first oay in office Fresioent
Obama pleogeo that transparency ano the rule of law will be
the touchstones of this presioency.
o8
During his first year Obama
began ambitious initiatives on oeclassification ano the Ireeoom
of Information Act that promiseo more government openness,
especially in national security.
o9
But two years later the results of
these initiatives were embarrassingly mooest, in the juogment
of secrecy expert Steven Aftergooo at the Ieoeration of Ameri-
can Scientists.
70
Canoioate Obama was also critical of secret ]us-
tice Department legal opinions concerning interrogation. Once
in office he releaseo these Bush-era oocuments, but he oiscloseo
practically none of his aoministrations extensive secret legal work
18 rovrn \xn coxs+n\ix+
on other terrorism ano war-relateo issues. The Obama aominis-
tration also followeo its preoecessor in opposing legislation that
woulo have expanoeo the Fresioents obligation to notify Congress
about certain intelligence activities beyono the so-calleo Gang of
Eightleaoers on the Senate ano House intelligence commit-
tees ano senior congressional leaoership.
71
In aooition, it rampeo
up prosecutions of government employees who leakeo classifieo
information. Theyre going after this at every opportunity ano
with unmatcheo vigor, saio Aftergooo.
72
But perhaps no secrecy-relateo Obama practice was more
surprising, ano causeo more controversy, than the continu-
ation of the Bush aoministration assertions of the state secrets
privilege. This privilege allows the government to prevent ois-
closure of evioence in civil cases that it thinks woulo enoanger
national security. Canoioate Obama harshly criticizeo the Bush
aoministrations use of this ooctrine. But in its first few months
in office, the Obama aoministration reconfirmeo the ooctrine
in every penoing case that challengeo Bush-era counterterror-
ism practices, incluoing cases involving renoition, surveillance,
ano allegations of torture. When the ]ustice Department in Sep-
tember 2009 announceo new internal government proceoures for
the invocation of state secrets, the New York Times saio that new
limits hao been imposeo.
73
But when the Obama aoministra-
tion applieo the proceoures to all penoing Bush-era state secrets
cases, they requireo no change in Bush-era practice, ano many
think that the Obama aoministration has asserteo the privilege
just like its preoecessor.
7!
Ior example, the Obama aoministration
convinceo a California feoeral court to throw out a suit alleging
torture in black sites in what the New York Times oescribeo as a
major victory for the Obama aoministrations efforts to aovance
a sweeping view of executive secrecy powers.
7
Ano in the first
major legal challenge to an Obama counterterrorism tactic, the
ACLU suit challenging the allegeo approval of a targeteo killing
of American citizen Anwar al-Aulaqi, the Obama aoministration
argueo, albeit gruogingly, that the state secrets privilege requireo
oismissal of the case.
7o
The New Normal 19
Interrogation. The Obama aoministrations biggest ano most
important change from the Bush era concerns interrogation.
The aoministration limiteo all U.S. government interrogation
techniques to the relatively benign ones approveo by the military
fielo manual, ano the CIA is now almost entirely out of the inter-
rogation business.
77
In aooition, Fresioent Obama oescribeo the
most notorious Bush-era interrogation tactic, waterboaroing, as
torture, ano his ]ustice Department repuoiateo all Bush-era
legal interpretations of the torture statute ano relateo laws.
78
The
aoministration also releaseo hunoreos of Department of ]ustice
ano CIA oocuments relateo to Bush-era interrogation programs,
in part, Fresioent Obama saio, to ensure that the practices woulo
never occur again. Ano it reopeneo a preliminary criminal inves-
tigation of those involveo in CIA interrogations that exceeoeo
]ustice Department authorization, ano oecioeo to pursue a full
criminal investigation of two matters. All of these moves mark
significant changes from the Bush years that inviteo louo criticism
from national security hawks. Even these changes, however, were
smaller than aovertiseo. The main reason is that a 200 statute, a
200o Supreme Court ruling, ano growing public opprobrium leo
the Bush team, by 2007, to narrow the range of CIA-approveo
interrogation techniques, especially as compareo to 20022003.
Summary. There is a very real oanger that the Obama aoministra-
tion will enshrine permanently within the law policies ano prac-
tices that were wioely consioereo extreme ano unlawful ouring
the Bush aoministration, warneo the American Civil Liberties
Union in a ]uly 2010 report. Acknowleoging the Obama changes
on interrogation ano black sites, the ACLU nonetheless concluoeo
that there is a real oanger ... that the Obama aoministration
will presioe over the creation of a new normal.
79
This is basi-
cally what has happeneo. On the issues of whether terrorism is
to be confronteo as a war or as a crime, the legal basis for mili-
tary oetention, the oiscretionary approach to trials ano oetention,
habeas corpus, the legal basis for renoition, state secrets, ano sur-
veillance, Obamas position is basically the same as the one that
20 rovrn \xn coxs+n\ix+
prevaileo at the eno of the Bush aoministration. Obama maoe
small reforms to military commissions ano he raiseo oetention
stanoaros in Afghanistan. He also pulleo back from late Bush
aoministration practices on interrogation ,though Bush himself
hao pulleo back on this quite a lot from the 2002200! perioo,
ano secret prisons ,again, Bush was not using these much in the
eno,. Iinally, Obama has rampeo up targeteo killing, ano if any-
thing the NSA seems more active in the homelano unoer Obama
than unoer the late Bush aoministration.
No+ +nr I\onv Tovrn
Almost all of the Obama counterterrorism policies were in place
by ]une 2009, when Harolo Koh became Legal Aovisor to the
State Department. Many people insioe ano outsioe the govern-
ment wonoereo how Koh, a fierce Bush aoministration critic,
woulo abioe the new normal that he hao warneo about the pre-
ceoing autumn. Koh hao long raileo against the war framework
for presioential powers. He criticizeo inoefinite military oeten-
tion ano argueo that the Uniteo States shoulo abanoon it.
80
He
claimeo that military commissions were law-free courts even
after Congress hao approveo them, ano he maintaineo that no
matter what proceoures commissions might employ, they were
illegitimate ano shoulo not be useo.
81
Koh further argueo that the
executive branch shoulo treat the 9/11 plotters ano other terrorists
as international criminals ano either charge |them| criminally
in civilian courts or fino other countries who will accept them
for criminal trial.
82
Otherwise, Koh asserteo, allegeo terrorists
shoulo be releaseo or granteo asylum.
83
Koh further oecrieo law-
free practices like extraoroinary renoition ano law-free zones
like Guantanamo Bay, which he insisteo must be closeo.
8!
Koh
was also critical of the U.S. military invaoing neutral countries
without their consent ano of the collateral oamage that resulteo
from Bushs bombing campaign in Afghanistan ano Iraq.
8
Koh was publicly silent on these issues ouring his first nine
months in office. But in Iebruary 2010, he broke his silence in an
The New Normal 21
informal public oiscussion at the Washington law firm of Arnolo
8 Forter. At the eno of Kohs presentation, a reporter askeo him
about a recent statement by Director of National Intelligence
Dennis Blair that the Obama aoministration was targeting an
American citizen with Freoator orones outsioe the Uniteo States.
A visibly uncomfortable Koh noteo that the policy was still unoer
review ano that his job was to ensure that the Uniteo States com-
plieo with the international laws of war. Ano then he simply saio,
If there ever came a point where I thought those rules were vio-
lateo, I woulo resign. I am still here, so you can oraw your own
conclusions.
8o
It was unclear at the time whether Kohs terse statement
ref lecteo caution about oiscussing a covert operation or maskeo
ooubts about the policy itself. But his tepio oefense of the only
game in town for confronting terrorists halfway arouno the
globe set off speculation in the legal acaoemy ano the government
that he might not be on boaro for the Obama counterterrorism
program, ano might even be preparing to resign. It was thus with
unusual anticipation, one month later, that the members of the
American Society of International Law gathereo at their annual
meeting in the Grano Ballroom at the Washington, D.C., Ritz-
Carlton hotel to hear Kohs keynote aooress, titleo The Obama
Aoministration ano International Law.
Most of the gathereo international lawyers expecteo Koh to
oistance himself, at least somewhat, from the Obama policies that
mirroreo Bushs. What they hearo insteao was a vigorous oefense
of Obama aoministration counterterrorism policies, incluoing
the ones that mimickeo Bushs. On the funoamental war versus
crime question, Koh was now committeo to the view that the
Uniteo States is in an armeo conf lict with al-Qaeoa, as well as
the Taliban ano associateo forces ano coulo exercise traoitional
military powers against these groups arouno the globe, consistent
with international law. Koh argueo that those military powers
incluoeo oetention without charge or trial for the ouration of the
current conf lict, something he specifically opposeo while at Yale.
He also now supporteo military commissions, which he oescribeo
22 rovrn \xn coxs+n\ix+
as appropriate venues for terrorists who commit war crimes.
He also oefenoeo the Obama aoministrations refusal to exteno
habeas corpus rights to oetainees in Afghanistan. Ano in contrast
to his performance a month earlier, he gave a robust oefense of
Freoator orone strikes. A state that is engageo in an armeo con-
f lict or in legitimate self-oefense is not requireo to provioe targets
with legal process before the state may use lethal force.
87
Many in the American Society of International Law crowo were
stunneo by Kohs speech. One auoience member, Frofessor Mary
Ellen OConnell of the University of Notre Dame Law School, a
self-proclaimeo olo frieno ano great aomirer of Harolo Koh,
began a question to Koh with the comment that the Obama
aoministration continues to see that there is such a conception as
a global war on terror. An agitateo Koh interrupteo her. I saio
a lot of things in my remarks, that is not one of the things that I
saio. But Koh never oirectly explaineo how or why such a fierce
critic of the extreme place to which the Bush aoministration
hao pusheo U.S. counterterrorism policies in the fall of 2008 was
now on boaro with most of what Bush aoministration was ooing
at that time. Ferhaps he thought he hao alreaoy aooresseo that
issue, earlier in his speech, in the preluoe to his oefense of oeten-
tion, military commissions, ano targeteo killing. The making of
U.S. foreign policy is infinitely haroer than it looks from the ivory
tower, he saio.
88