Legal News

On Law and the War on Terror: Different Prez, Same Legal Policies?

By Ashby Jones

Today, January 20, marks the one year anniversary of the inauguration of Barack Obama.

What a difference a year makes. Last January, he and a bunch of congressional Democrats were riding into office on a wave of momentum after an election that was indisputably historic. Today, Democrats are waking up to a bit of a nightmare. They lost their filibuster-proof advantage in the Senate after an election Tuesday in Massachusetts that was, in some ways, only slightly less historic.

So politically, Obama and the Dems enter Year 2 a bit beaten up. But what about on the legal front? How much has changed the legal legacy left by George W. Bush?

Barely at all, writes CBS News’s Jan Crawford, who at some point in the not-so-distant past dropped the “Greenburg” from her name (and recently moved from ABC to CBS).

Writing Wednesday in her “Crossroads” blog, Crawford writes that the “most striking thing about President Obama’s first year in office, from a legal perspective, is just how little of significance he has changed.” Continues Crawford:

But 365 days later, the Obama Administration has largely preserved the legal positions taken by the Bush Administration in the war on terror or made only narrow changes.

Guantanamo remains open, with no date for closure in sight and no money from Congress to do it. The Administration has asserted nearly the identical authority as the Bush Administration for detaining terror suspects. It also has defined “enemy combatant” in almost the exact way.

Obama also is opposing just as staunchly the idea of giving terror suspects detained in Afghanistan the same kind of rights to court hearings as suspects in Gitmo are entitled to receive. The arguments against expanding those rights are every bit as strong as something lawyers in the Bush Justice Department would have written.

Of course, concedes Crawford, President Bush likely wouldn’t have decided to try Khalid Sheikh Mohammed in a New York federal court, as Obama and Eric Holder, his attorney general, have done. Holder also decided to reopen investigations into a number of harsh CIA interrogations.

But otherwise, the legal framework supporting the war on terror isn’t a whole lot different. Greenberg makes an interesting point, raised initially it seems by Peter Baker in a recent NYT article: that Obama and others on the left failed to acknowledge how much Bush had changed his policies during his second term. “And so now,” writes Crawford, “when Obama looks his policies, circa 2008, he’s forced to concede he actually agrees with many of them, despite what he said, circa 2008.”

Full post as published by Law Blog - WSJ.com on January 20, 2010 (boomark / email).