The 9/14 Presidency: Barack Obama, like George W. Bush, Is Operating with War Powers Granted Three Days after the 9/11 Attacks

Article excerpt

IF You BELIEVE the president's Republican critics, Barack Obama takes a law enforcement approach to terrorism. His FBI came under fire for reading Umar Farouk Abdulmutallab, the Nigerian national who nearly blew up an airplane on Christmas, his constitutional rights. His attorney general was blasted for wanting to give 9/11 mastermind Khalid Shaikh Mohammed a criminal trial in lower Manhattan. Republican Sen. Scott Brown rode to his historic upset victory in Massachusetts in part due to this slogan: "In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them." Every sign suggests the GOP will make terrorism a wedge issue in the 2010 midterm elections. "As I've watched the events of the last few days," former vice president Dick Cheney said shortly after the Abdulmutallab attack, "it is clear once again that President Obama is trying to pretend we are not at war."

It's true that the president's speeches and some of his policy rollouts have emphasized a break from the Bush era. In the Quadrennial Defense Review, the guiding strategy for defense spending released every four years, the administration excised any reference to the "long war," previously the go-to pseudonym for the global war on terror. In a major speech last summer, the president's top adviser on terrorism and homeland security, John Brennan, stated explicitly that Obama rejected the phrase "global war" because "it plays into the misleading and dangerous notion that the U.S. is somehow in conflict with the rest of the world" In a USA Today op-ed piece last February, Brennan argued that Republican critics were playing into Al Qaeda's hands by suggesting U.S. courts could not handle terrorism prosecutions.

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But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any differently than President Bush. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably "20th hijacker" Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same wartime powers as President Bush, with all of their attendant constitutional dangers.

The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When the president closed the secret CIA prisons known as "black sites," he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as "rendition." And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.

The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, "The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

As long as this authorization of force remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. Although it's true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. …