Legal Terrain Unchanged In Obama's First Year
Think back a year. Obama vowed to close Guantanamo Bay, end aggressive interrogations of terror suspects and return America to a country that no longer was "ignoring the law when it is inconvenient," as he pointedly accused George W. Bush of doing.
CBSNews.com Special Report: Obama's First Year
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.
And although as a presidential candidate, Obama was sharply critical of Bush's system of military trials for terror suspects, as President, he signed into law a new Military Commissions Act that made only minor tweaks to Bush's old system.
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.
There have, to be sure, been some sharp breaks on policy positions. The decision to try Khalid Sheikh Mohammed and other the top 9/11 plotters in a regular criminal court in the United States is the most obvious. That trial will occur not at a secure military base outside the country, where many of the terror suspects will be tried, but in the middle of lower Manhattan.
And instead of being tried by a military commission—which has procedures to protect classified information and different standards for admitting evidence—KSM and the others will be tried in federal court, protected by the same constitutional and procedural rules as any other murder defendant.
Obama also banned coercive interrogations and waterboarding—although the Bush Administration already had suspended that harsh technique. And his attorney general, Eric Holder, decided to reopen investigations into a number of harsh CIA interrogations. Career prosecutors who examined the interrogations in the Bush Administration concluded the agents and contractors who conducted them could not be prosecuted.
And in one of the more controversial decisions, Obama released detailed legal memos written by lawyers in the Bush Administration that authorized the specific interrogation techniques.
But the legal framework in the war on terror—the foundation for future decisions—is not dramatically different.
Peter Baker wrote an insightful piece in last week's New York Times magazine detailing how Obama has adopted many of Bush's policies, and how President Obama sounds so different from Candidate Obama. Peter talked about it last week when we both were on Face the Nation with Bob Schieffer.
As Peter pointed out, part of Obama's problem now is that the Left—and Obama is included in this group—never gave Bush credit for the real changes he made in his legal positions during his second term in office. By 2006, Bush had moderated most of the positions he took in the wake of 9/11. Bush talked about closing Gitmo. He suspended waterboarding. He modified the system of military commissions. He retooled terrorist surveillance programs.
But the Left—and again, President Obama is included in this group—continued to rail against him as if it were 2003 and he hadn't changed a thing. And so now, 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.
Outside the war on terror, however, the differences between the Obama Administration and the Bush Administration are clearer. In judicial appointments, environmental and civil rights issues, employment and regulatory law, there are stark differences between this administration and the last.
But even there, the impact has not been as dramatic as some had hoped. In the area of judicial nominations, the Obama Administration has been sharply criticized by the Left for moving slowly to fill vacancies in the appeals courts—unlike George W. Bush.
Bush took judicial nominations seriously and moved quickly to tap highly regarded, young nominees for the appeals courts. Appeals courts obviously have the last word in the vast majority of cases, so these are important positions, regardless. But it also was a way of thinking ahead, to having a group of the "best and the brightest" for any future Supreme Court vacancies. Chief Justice John Roberts was in that early group of Bush nominees to the appeals courts.
And while Obama gets high marks for tapping the Supreme Court's first Hispanic justice, Sonia Sotomayor won't change the conservative tilt of the Court. She replaced a liberal, David Souter. And the next two justices expected to retire, John Paul Stevens and Ruth Bader Ginsburg, also are liberals.
But if a conservative justice were to retire, that would be historic. Obama would change the direction of the Court—a feat that many would call his greatest legacy.
