By Charlie Savage
WASHINGTON: Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the CIA’s program of transferring prisoners to other countries without legal rights and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team’s arguments that a lawsuit by former CIA detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in U.S. custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”
These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared – prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.
In an interview, the White House counsel, Gregory Craig, asserted that the administration was not embracing Bush’s approach to the world. But Craig also said President Barack Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.
“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”
Within days of his inauguration, Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting CIA interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
During her confirmation hearing last week, Elena Kagan, the nominee for solicitor-general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law – indefinite detention without a trial – even if he were captured in a place like the Philippines rather than in a physical battle zone.
Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric Holder made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.
Moreover, the nominee for CIA director, Leon Panetta, opened a loophole in Obama’s interrogation restrictions. At his hearing, Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask Obama for “additional authority.”
Panetta emphasized that the president could not bypass anti-torture statutes, as Bush administration lawyers claimed. And he said that waterboarding – a technique that induces the sensation of drowning, and that the Bush administration said was lawful – was a form of torture.
But Panetta also said the CIA might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.
Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were alleged to have been abused after transfer, under Bush the program expanded and included transfers to third countries – some of which were accused of using torture – for interrogation, not trials.
Panetta said the agency would be likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment – the same safeguard that the Bush administration used, and that critics say is ineffective.
Craig noted that while Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”
He urged patience as the administration reviewed the programs it inherited from Bush. That process began after the election, Craig said, when military and CIA leaders flew to Chicago for a lengthy briefing of Obama and his national security advisers. Obama then sent his advisers to CIA headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”
Civil liberties groups praise Obama’s early executive orders on national security but say other signs are discouraging.
For example, Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former CIA detainees who say a Boeing subsidiary helped fly them to places where they were tortured.
Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux – exactly the same legal arguments that we saw the Bush administration present to the court.”
Craig said Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Holder has also begun a review of every open Bush-era case involving state secrets, Craig said, so people should not read too much into one case.
“Every president in my lifetime has invoked the state-secrets privilege,” Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”
Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case – as opposed to withholding particular evidence.
The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over congressional subpoenas of former White House aides to Bush over the firing of U.S. attorneys.
Addressing the executive-privilege dispute, Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”
The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s conservative editorial page argued that “it seems that the Bush administration’s anti-terror architecture is gaining new legitimacy” as Obama’s team embraces aspects of Bush’s counterterrorism approach.
Anthony Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”
Obama has clashed with civil libertarians before. Last July, he voted as a senator to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the ACLU says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Bush’s anti-terrorism strategy.
“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Craig said.
“There has been a dramatic change of direction.”