Ron Radosh

Obama vs. Cheney: Jack Goldsmith is Right

Yesterday, the nation heard the two contrasting views of how to deal with the war against terrorism, first by President Barack Obama speaking at the National Archives, and second from former Vice-President Dick Cheney speaking before The American Enterprise Institute. Certainly, from first appearances, the views seem diametrically opposed.  President Obama said: ” I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I categorically reject the assertion that these are the most effective means of interrogation.”  In contrast, Cheney said: “The interrogations were…legal, essential, justified, successful, and the right thing to do. The intelligence officers who questioned the terrorists can be proud of their work and proud of the results, because they prevented the violent deaths of thousands, if not hundreds of thousands, of innocent people.”

Writing in The Wall Street Journal, Gerald F. Seib argues that there is no contest. Dick Cheney won hands down, because there is no middle ground.  Actually there is, and it comes from Jack Goldsmith, a professor at Harvard Law School who was an Assistant Attorney General in the Bush Administration, and who wrote The Terror Presidency: Law and Judgment Inside the Bush Administration .

Writing in TNR.com on May 18, in an article called “The Cheney Fallacy,” Goldsmith  argued that Barack Obama is waging a more effective war on terror than George W. Bush. The reason is not because, as Cheney argues, Obama has torn apart the proven methods used by the previous administration,  but because of the new administration’s “packaging.” Bush’s policies actually had legitimacy and efficacy, he writes, but the Bush administration  showed a foolish indifference “to process and presentation.” The Bush administration, Goldsmith contends, tried to act unilaterally on military commissions, detention and surveillance, avoiding seeking political and legal support from Congress. It thus aroused deep concern about an unnecessary expansion of presidential power, one that was exacerbated by expansive rhetoric.

In contrast, Barack Obama began with credibility, speaking as a critic of Bush’s terrorism policies and as a champion of civil liberties. Yet, as scores of commentators have noted, he has continued rather than scuttled Bush’s terrorism policies. He has done this, as yesterday’s speech showed, while trying to appear still as a strict opponent of the old Bush-Cheney policies, thereby deflecting the clear evidence that he has in fact continued them. Aside from the left-wing which will now increase its criticism of Obama as a sell-out, most of the nation is responding to Obama with the understanding that he has changed to keep the old policies in tact because he has learned that there is a real terror threat—and hence he cannot keep to promises made during the campaign.


Goldsmith points out that in eleven different ways,  Obama has carried out existing Bush policies that have enraged so many people.  Goldsmith writes: “The Obama policies also reflect the fact that the Bush policies were woven into the fabric of the national security architecture in ways that were hard if not impossible to unravel.” The Bush and Obama policies are close, he reasons, because they reflect “longstanding executive branch positions.” Various  administrations have detained enemy forces during war without charges; have used military commissions for war criminals, and refused habeas corpus review to aliens detained outside the United States.

In other writing, cited in his Contentions blog by Peter Wehner, Goldsmith cites the standard set by a man Obama has often been compared to, Abraham Lincoln: “In response to the secession crisis that began when Confederate forces fired on Fort Sumter, Lincoln raised armies and borrowed money on the credit of the United States, both powers that the Constitution gave to Congress; he suspended the writ of habeas corpus in many places even though most constitutional scholars, then and now, believed that only Congress could do this; he imposed a blockade on the South without specific congressional approval; he imprisoned thousands of southern sympathizers and war agitators without any charge or due process; and he ignored a judicial order from the Chief Justice of the Supreme Court to release a prisoner detained illegally.”

Lincoln acted because he felt it necessary to save our nation, despite his bold decision to ignore Constitutional restraints. Wehner sarcastically remarks that perhaps Obama “can therefore devote an entire speech to what he must consider to be the awful and unforgivable assault on the Constitution by Lincoln, his purported hero.”  Of course, many people will argue that today’s situation is not comparable to the situation faced by Lincoln the moment of Southern secession and the collapse of our Union.  Undoubtedly, however, Obama comes to the issue after years of safety, while the Bush administration had to act decisively after a major terrorist attack the likes of which America had never seen since the Japanese surprise attack on Pearl Harbor.

Speaking as a historian, I agree with Wehner’s argument that one must put Bush policies in historical context. Wehener does precisely that: “And by historical standards, the Bush Administration acted in ways that were far more respectful of the Constitution and the rules of war than virtually any other wartime President’s. Justice John Roberts, for example, wrote in his dissent in Boumediene v. Bush that the Bush Administration had put in place “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.'”

So, despite President Obama’s claim that he has taken “a new direction from the last eight years,” he has only made some cosmetic changes that amount to a distinction without a difference, in programs like those discussed  in the Goldsmith article.  That is why the ACLU and the Left, that wants a Truth and Reconciliation Commission and/or trials of lawyers, interrogators and Bush Administration officials, are going to not forgive or accept the President’s clever appearance of a middle-road approach to fighting the terrorists.

Obama’s genius is that of being able to convince the public that he has made a vast departure, when in fact he has made slight modifications and is continuing the Bush policy. As Goldsmith says, it’s all in the packaging.