...During the campaign former professor Obama spoke eloquently about the importance of habeas corpus review of executive detentions of enemy soldiers. Habeas corpus is "the foundation of Anglo-American law" and "the essence of who we are," he said. But his administration has applied this principle in the same narrow fashion as the late Bush administration. It has argued that Guantanamo detainees can challenge the "fact, duration, or location" of confinement on habeas review, but not their "conditions of confinement." It has maintained that
"the Geneva Conventions are not judicially enforceable by private individuals" in habeas proceedings. And it has made clear its belief that the limited habeas rights it recognizes for the two hundred or so detainees on Guantanamo Bay do not extend to the 600 or so detainees in Bagram Air Base. This latter position might prove more controversial for President Obama than for President Bush.
The new president's enlarged military commitment in Afghanistan and Pakistan, combined with the forthcoming closure of Guantanamo, means that the number of suspects detained in Bagram--without charge or trial and without access to lawyers or habeas rights--is likely to increase, perhaps dramatically....
Targeted killing is another Bush administration policy being continued, and indeed ramped up, by President Obama. The new administration has used unmanned predator drones to kill suspected al Qaeda targets in Afghanistan and Pakistan at a greater rate than the Bush administration. These more aggressive targeted killings have predictably caused more collateral damage to innocent civilians. In what appears to be the worst episode since 9/11, a predator attack earlier this month killed many dozens of civilians, including many women and children, in the Farah province of Afghanistan. The targeted killing policy has grown very controversial in Afghanistan and among human rights groups. The International Committee of the Red Cross maintains that international law permits targeting only of people "continuously" engaged in hostile actions, and that only "necessary" force can be used against them. This standard would require a significant rollback of the Obama targeted killing program. It is thus not surprising that
the Obama State Department views the Red Cross restrictions as "problematic."...
The main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging. The Bush administration shot itself in the foot time and time again, to the detriment of the legitimacy and efficacy of its policies, by indifference to process and presentation. The Obama administration, by contrast, is intensely focused on these issues....
President Obama, by contrast, entered office with great stores of credibility in speaking about the dangers of terrorism and the difficulties of meeting the terror threat. The new president was a critic of Bush administration terrorism policies, a champion of civil liberties, and an opponent of the invasion of Iraq. His decision (after absorbing the classified intelligence and considering the various options) to continue core Bush terrorism policies is like Nixon going to China. Because the Obama policies play against type and (in some quarters of his party) against interest, they appear more likely to be a necessary response to a real terror threat and thus less worrisome from the perspective of presidential aggrandizement than when the Bush administration embraced essentially the same policies.
http://www.tnr.com/politics/story.html?id=1e733cac-c273-48e5-9140-80443ed1f5e2&p=1
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