Noah Feldman: How Different Is Obama from Bush on Terrorism?
[Noah Feldman is professor of law at Harvard University and author of the forthcoming book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices.]
After five years of waiting, Omar Khadr was finally slated to go on trial in Guantánamo Bay this summer -- and then suddenly, the gears ground to a halt. The problem was not that Khadr was just 15 years old when, according to the charges, he threw a grenade in a 2002 firefight in Afghanistan and killed a U.S. soldier. Nor was Barack Obama's administration having second thoughts about restarting the military tribunals that had been stopped when he took office. Instead, the problem lay in the criminal charge against Khadr: fighting without a uniform. According to news reports, Harold Koh, the legal advisor to the State Department, pointed out that CIA agents and private contractors who fire missiles from U.S. drones are civilians too. By charging Khadr with a war crime, the United States might be opening its own operators to the same charge.
This week, a judge set a new and theoretically final date for Khadr's trial, Oct. 18. But the defendant's long journey to the courtroom perfectly encapsulates the difficulties facing the Obama administration when it comes to the legal war on terror. First there are holdover problems from the previous administration: Guantánamo itself, the detainees held there, and some aggressive but not always well-thought-out legal theories. These are troubling to advocates of international law -- some of whom, like Koh, a longtime human rights champion, now work for the government and cannot possibly be happy about, for example, life imprisonment for a crime committed by a 15-year-old child soldier. Then there are new legal challenges associated with the administration's own national defense strategies -- especially the use of drones, which has increased substantially in recent years.
Between the invasion of Iraq, Guantánamo, and the horrors of Abu Ghraib, the United States during the Bush years found itself repeatedly accused of acting unlawfully. The cost of the criticism came in two forms: First, the United States had a harder time finding desperately needed allies in two wars and a worldwide struggle against al Qaeda. Second, being perceived as a lawbreaker hurt America at a time when winning hearts and minds was a security issue, not just a project of soft power.
Obama ran in part on the promise to restore American credibility by complying with domestic and international law -- a highly unusual campaign tactic that captured how serious the problems caused by Bush's policies seemed to be. In the last two years, his administration has tried to change both the reality and the perception of how the U.S. government complies with the law when acting in the interests of national security. Closing Guantánamo, as Obama promised, would have been the best symbol of change. But Congress has made it impossible to transfer the Guantánamo detainees to facilities stateside, so Obama has not been able to fulfill this pledge.
It's not that the former law professor hasn't made any progress at all...
Read entire article at Foreign Policy
After five years of waiting, Omar Khadr was finally slated to go on trial in Guantánamo Bay this summer -- and then suddenly, the gears ground to a halt. The problem was not that Khadr was just 15 years old when, according to the charges, he threw a grenade in a 2002 firefight in Afghanistan and killed a U.S. soldier. Nor was Barack Obama's administration having second thoughts about restarting the military tribunals that had been stopped when he took office. Instead, the problem lay in the criminal charge against Khadr: fighting without a uniform. According to news reports, Harold Koh, the legal advisor to the State Department, pointed out that CIA agents and private contractors who fire missiles from U.S. drones are civilians too. By charging Khadr with a war crime, the United States might be opening its own operators to the same charge.
This week, a judge set a new and theoretically final date for Khadr's trial, Oct. 18. But the defendant's long journey to the courtroom perfectly encapsulates the difficulties facing the Obama administration when it comes to the legal war on terror. First there are holdover problems from the previous administration: Guantánamo itself, the detainees held there, and some aggressive but not always well-thought-out legal theories. These are troubling to advocates of international law -- some of whom, like Koh, a longtime human rights champion, now work for the government and cannot possibly be happy about, for example, life imprisonment for a crime committed by a 15-year-old child soldier. Then there are new legal challenges associated with the administration's own national defense strategies -- especially the use of drones, which has increased substantially in recent years.
Between the invasion of Iraq, Guantánamo, and the horrors of Abu Ghraib, the United States during the Bush years found itself repeatedly accused of acting unlawfully. The cost of the criticism came in two forms: First, the United States had a harder time finding desperately needed allies in two wars and a worldwide struggle against al Qaeda. Second, being perceived as a lawbreaker hurt America at a time when winning hearts and minds was a security issue, not just a project of soft power.
Obama ran in part on the promise to restore American credibility by complying with domestic and international law -- a highly unusual campaign tactic that captured how serious the problems caused by Bush's policies seemed to be. In the last two years, his administration has tried to change both the reality and the perception of how the U.S. government complies with the law when acting in the interests of national security. Closing Guantánamo, as Obama promised, would have been the best symbol of change. But Congress has made it impossible to transfer the Guantánamo detainees to facilities stateside, so Obama has not been able to fulfill this pledge.
It's not that the former law professor hasn't made any progress at all...