During the 2008 presidential campaign, Barack Obama soundly criticized the Bush Administration's execution of the war on terrorism, especially the use of the detention facility at Guantanamo and the manner of interrogations conducted there. (1) The counterterrorism policy that then-Senator Obama described was robust--he declared willingness to order American military forces to take action in Pakistan upon receipt of "actionable intelligence" if Pakistan were unwilling to act (2)--but distinct from the policy then in place.
As President Obama has now surpassed the two-year anniversary of his inauguration, it is an opportune time to compare his administration's counterterrorism policies with those of his predecessor. In a different symposium article, I concluded that there are high-level similarities between the policies of the two presidents. (3) Among the areas of agreement are the policies that military force is an appropriate (but not the only) tool for responding to al Qaeda, and that indefinite military detention of suspected al Qaeda and Taliban fighters is lawful.
George Santayana famously wrote, "Those who cannot remember the past are condemned to repeat it." (4) If President Obama has largely followed his predecessor's counterterrorism policies--including the continuing use of the detention facility at the U.S. naval base at Guantanamo Bay, Cuba--then it is fair to consider whether he is repeating the mistakes of the Bush Administration. To be clear, the "mistakes" discussed in this paper are ones of law and not of politics or military strategy. Reasonable minds can disagree about the wisdom of the 2007 "surge" in Iraq, President Obama's decision to withdraw all U.S. combat brigades from Iraq in August 2010, or his decision to increase the number of U.S. combat troops in Afghanistan. (5) but proper evaluation of those decisions lies outside the realm of legal analysis.
This Article provides a critical assessment of the various legal issues arising out of the Bush and Obama administrations' use of Guantanamo Bay as a detention facility for captured al Qaeda and Taliban fighters, as well as related proposals to prosecute the detainees in either military commissions or federal courts. President Obama has followed many of President Bush's policies, though in some areas (such as advocating the use of federal court trials) he has charted a new course. Examination of each discrete legal issue reveals that some of the legal criticisms of the Bush Administration's Guantanamo policy were wrong, and therefore the Obama Administration has not erred legally in continuing the course. In other areas, President Obama has rightly changed policy to avoid practices, such as waterboarding, that were regarded by many as of questionable legal validity. President Obama has thus avoided some of the past mistakes of the Bush Administration, but he has also arguably made new ones. President Obama's bold campaign promise to close the detention facility at Guantanamo Bay within his first year in office has become an albatross around his neck with no prospect of fulfillment anytime soon. (6) His Justice Department's proposal to prosecute several high-level al Qaeda detainees, including the suspected 9/11 mastermind, has passed its one year anniversary and has managed only to generate bipartisan opposition. (7)
Part I of this Article identifies and analyzes whether different aspects of the government's Guantanamo detention program can be characterized as legal mistakes. Part II then develops the central thesis that President Obama's Guantanamo mistakes stem from the absence of a clear strategy for integrating military force and law enforcement in responding to the threat posed by al Qaeda. To be sure, the Bush Administration's policy suffered from a similar flaw. Whereas President Bush's policies reacted and overreacted to 9/11 with a short-term, "ends justify the means" approach, President Obama's policies appear in large measure to be a reaction and overreaction to President Bush's policies: "anything but Bush," in many respects. …