Broken Promises or Unrealistic Expectations?: Comparing the Bush and Obama Administrations on Counterterrorism

Author:Tung Yin
Position:Professor of Law, Lewis & Clark Law School. J.D., 1995, University of California, Berkeley.
Pages:465-510
Broken Promises or Unrealistic Expectations?:
Comparing the Bush and Obama Administrations on
Counterterrorism
Tung Yin *
I. INTRODUCTION ............................................................................ 466
II. THE CRIMINAL PROSECUTION-MILITARY FORCE DIVIDE ........... 468
III. JUSTIFICATIONS AND CONSEQUENCES OF THE MILITARY FORCE
PARADIGM ................................................................................... 472
A. Indefinite Detention Absent Criminal Charges ............. 472
1. Detention in Traditional Armed Conflicts ........... 472
2. Detention After 9/11 ............................. ................. 474
B. Military Prosecutions After 9/11 .................................... 479
1. The Bush Administration‘s Military
Commissions .......................................................... 480
2. The Obama Administration‘s Military
Commissions .......................................................... 482
C. Lethal Aerial Drone Strikes ............................................ 483
IV. A NORMATIVE ANALYSIS OF THE SHIFT IN COUNTERTERRORISM
STRATEGY FROM BUSH TO OBAMA ............................................. 486
A. “Military Force Is a Necessary (But Not Sufficient)
Counterterrorism Tool.” .................................................. 487
1. Problems With Acquiring Lawful Custody Over al
Quaeda Fighters .................................................... 488
2. Problems With Identifying Crimes by All Hostile al
Qaeda and Taliban Fighters ................................. 491
3. Problems With Responding to the Attacks on
September 11 ......................................................... 495
B. “Like Domestic Law, International Law Will Likely End
Up Adapting to the Needs of the Present.” ..................... 497
C. “International Opinions Toward the Bush and Obama
Administration Counterterrorism Policies are Based Less
on Substance Than on Perception.” ................................ 502
* Professor of Law, Lewis & Clark Law School. J.D., 1995, University of California, Berkeley.
466 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 20:465
1. Rhetoric and Precision of Language..................... 502
2. Khalid Sheikh Mohammed‘s Trial ....................... 503
3. Transparency and Trust ....................................... 507
V. CONCLUSION ............................................................................... 509
I. INTRODUCTION
By Election Day 2008, the U.S. detention facility on Guantanamo Bay
had already festered for six years in the eyes of the international community
as a symbol of the perceived arrogance and lawlessness of the United States
under President Bush. Perhaps not surprisingly, both Presidential
candidates, Senators Barack Obama and John McCain, had ple dged to close
down Guantanamo.
1
When it became clear o n the night of November 4, 2008 that Obama had
defeated McCain, critics of the Bush Administration‘s counterterro rism
policies no doubt looked forward to an end to waterboarding and other forms
of coercive interrogation, detention without criminal charges of captured
fighters at Guantanamo Bay, and general defiance of international law
standards.
2
Domestic and international expectations were high, because
whereas many deemed President Bush a war criminal,
3
Obama found himself
accepting the Nobel Peace Prize just a few months after his inaugura tion.
4
1
See Senator Barack Obama, A Politics of Conscience, Address to United Church of Christ
General Synod in Hartford, CT (June 23, 2007), available at
www.barackobama.com/2007/06/23/a_politics_of_conscience_1.php (―[W]e should close
Guantanamo Bay and stop tolerating the torture of our enemies.‖); see also Peter Finn,
Guantanamo Closure Called Obama Priority, WASH. POST, Nov. 12, 2008, available at
http://www.washingtonpost.com/wp-dyn/content/article/2008/11/11/AR2008111102865.html; Kate
Zernike, McCain and Obama Split o n Justices‟ Guantanamo Ruling, N.Y. TIMES, June 13, 2009,
at A23, available at http://www.nytimes.com/2008/06/13/us/politics/13candidates.html; William
Glaberson & Margot Williams, Next President Will Face Test On Detainees, N.Y. TIMES, Nov. 3,
2008, at A1, available at http://www.nytimes.com/2008/11/03/us/03gitmo.html.
2
See, e.g., David Abraham, The Bush Regime from Elections to Detentions: A Moral Economy of
Carl Schmitt and Human Rights, 62 U. MIAMI L. REV. 249 (2008).
3
See, e.g., Thomas Friedman, You Gotta Have Friends, N.Y. TIMES, Nov. 20, 2003, at A31,
available at http://www.nytimes.com/2003/11/20/opinion/20FRIED.html (noting accusation by
playwright Harold Pinter); Craig S. Smith, Usually Volatile Mayor Wins Praise for Low-Key
Presence, N.Y. TIMES, July 12, 2005, at A8, available at
http://www.nytimes.com/2005/07/12/international/europe/12livingstone.html (noting accusation
by London Mayor Ken Livingstone); Kirk Johnson, A Utahan with Causes Galore Moves Bush to
Top of List, N.Y. TIMES, Mar. 22, 2007, at A1, available at
http://query.nytimes.com/gst/fullpage.html?res=9405E1DA1430F931A15750C0A9619C8B63
(noting accusation by Salt Lake City Mayor Rocky Anderson).
4
See, e.g., Walter Gibbs, From 205 Names, PanelChose the Most Visible, N.Y. TIMES, Oct. 9, 2009,
at A10, available at http://www.nytimes.com/2009/10/10/world/10oslo.html.
Summer 2011] BROKEN PROMISES OR UNREALISTIC EXPECTATIONS? 467
Yet, as o f President Obama‘s first official State of the Union address in
2010, there were still 196 detainees at Guantanamo Bay,
5
the President had
decided to send additional troops to Afghanistan,
6
and U.S. aerial drones
were circling the skies of Pakistan‘s remote regions on hunt-and-destroy
missions.
7
It would be inaccurate and un fair to say that President Obama h as
simply continued President Bush‘s counterterrorism policies. Obama
immediately issued an executive order banning waterboarding and other
forms of coercive interrogation,
8
and suggested that military commissions, if
used, would require more procedural protections to def endants.
9
However, on
the high-priority issuesindefinite detentions, drone-launched missile
attacks, and military commissionsthe similarities between the past and
present administrations dwarf the differences. Such similarities lead one to
ask whether President Obama broke campaign promises regarding
counterterrorism policies, or if the expectations that Bush Administration
critics had for Obama were completely unrealistic.
Part I begins with a discussion of what this Article refers to as the
criminal prosecution/military force divide. This is the fracture point between
competing theorie s of how the Un ited States shou ld respond to the terrorist
group al Qaeda: whether through the traditional criminal justice system,
armed conflict, or some hybrid of the two.
Part II then con siders the consequences of the military force paradigm as
applied against al Qaeda and the Taliban fo llowing the September 11, 2001
(―9/11‖) attacks, focu sing on the three high-level issues noted earlier
(indefinite detentions, drone strikes, and military commissions). For each
issue, this Article notes the respective actions and legal positions of the Bush
and Obama Administrations.
Finally, Part III provides a normative comparison of the Bush and
Obama Administrations‘ counterterrorism policies. This Article draws three
5
See Peter Finn, Justice Task Force Recommends About 50 Guantanamo Detainees Be Held
Indefinitely, WASH. POST, Jan. 22, 2010, available at http://www.washingtonpost.com/wp-
dyn/content/article/2010/01/21/AR2010012104936.html (noting 196 detainees remainin g at
Guantanamo).
6
See Elisabeth Bumiller & Helene Cooper, Officials Say White House Aides Are Frustrated by
Pace of Afghan Buildup, N.Y. TIMES, Jan. 9, 2010, at A6, available at
http://query.nytimes.com/gst/fullpage.html?res=9C05EFD7103FF93AA35752C0A9669D8B63
7
See infra Part IV.
8
Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009), available at
http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf [hereinafter E.O. 13,491].
9
See Scott Shane et al., Obama Reverses Key Bush Policy, but Questions on Detainees Remain,
N.Y. TIMES, Jan. 23, 2009, at A16, available at
http://www.nytimes.com/2009/01/23/us/politics/23obama.html (under title Obama Reverses Key
Bush Security Policies).

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