40 Pages Posted: 29 May 2011
Date Written: December 1, 2010
In this contribution to a symposium examining the first two years of the Obama Administration, I provide a critical assessment of the various legal issues arising out of the Bush and Obama administrations’ use of Guantanamo Bay as a detention facility for captured al Qaeda and Taliban fighters, as well as related proposals to prosecute the detainees in either military commissions or federal courts. President Obama has followed many of President Bush’s policies, though in some areas (such as advocating the use of federal court trials) he has charted a new course. Examination of each discrete legal issue reveals that some of the legal criticisms of the Bush Administration’s Guantanamo policy were wrong, and therefore the Obama Administration has not erred legally in continuing the course. In other areas, President Obama has rightly changed policy to avoid practices, such as waterboarding, that were regarded by many as of questionable legal validity. President Obama has thus avoided some of the past mistakes of the Bush Administration, but he has also arguably made new ones. President Obama’s bold campaign promise to close the detention facility at Guantanamo Bay within his first year in office has become an albatross around his neck with no prospect of fulfillment anytime soon. His Justice Department’s proposal to prosecute several high‐level al Qaeda detainees, including the suspected 9/11 mastermind, has passed its one year anniversary and has managed only to generate bipartisan opposition. My central thesis is that President Obama’s Guantanamo mistakes stem from the absence of a clear strategy for integrating military force and law enforcement in responding to the threat posed by al Qaeda. To be sure, the Bush Administration’s policy suffered from a similar flaw. Whereas President Bush’s policies reacted and overreacted to 9/11 with a short‐term, “ends justify the means” approach, President Obama’s policies appear in large measure to be a reaction and overreaction to President Bush’s policies: “anything but Bush,” in many respects.
Keywords: Guantanamo Bay, Obama, Terrorism, al Qaeda, 9/11, Military Commissions, Khalid Sheikh Mohammed
JEL Classification: K14, K41
Suggested Citation: Suggested Citation
Yin, Tung, 'Anything But Bush?': The Obama Administration and Guantanamo Bay (December 1, 2010). Harvard Journal of Law and Public Policy, Vol. 34, No. 2, p. 453, 2010; Lewis & Clark Law School Legal Studies Research Paper . Available at SSRN: https://ssrn.com/abstract=1855047