chapter 12 The Loaded Gun: The Obama Administration and the Legacy of George W. Bush’s “

Niels Bjerre-Poulsen

During the presidential of 2008, then candidate sharply criticized the Bush administration’s human rights record and its attempt to aggrandize executive power. He described both as violations of American standards and promised that if elected, he would end extraordi- nary renditions and torture, close Guantanamo, improve the protection of civil liberties, and scale back the claims to executive power that President Bush had made with reference to the ongoing “War on Terror.”1 Having won the election, both President-elect Barack Obama and Vice- -elect seemed determined to voluntarily scale down the claims to executive power and rededicate the American government to the advancement of human rights. On the 60th anniversary of the Declaration of Human Rights, December 10, 2008, the president-elect issued a statement which concluded that:

When the stands up for human rights, by example at home and by effort abroad, we align ourselves with men and women around the world who struggle for the right to speak their minds, to choose their leaders, and to be treated with dignity and respect. We also strengthen our security and wellbeing, because the abuse of human rights can feed many of the global dangers that we confront – from armed conflict and humanitarian crises, to corruption and the spread of ideologies that promote hatred and violence.2

The departing Vice-president, , thought otherwise. He had been a driving force behind the aggrandizement and was convinced that Barack Obama and Joe Biden would change their minds when they entered the White

1 Charlie Savage, “Barack Obama’s Q & A,” , December 20, 2007. (http:// www.boston.com/news/politics/2008/specials/CandidateQA/ObamaQA/). 2 http://change.gov/newsroom/entry/statement_of_president_elect_obama_on_hu- man_rights_day/

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House. He told right-wing radio-host that “once they get here and they’re faced with the same problems we deal with every day, then they will appreciate some of the things we’ve put in place.”3 President Obama’s handling of the Bush administration’s human rights legacy is the subject of this article. A central question is whether the new president actively attempted to dismantle some of the Bush administration’s radical policies to fighting and return to a previous understanding of the proper balance of power in the American political system, or whether he simply chose to use presidential prerogatives less aggressively than his pre- decessor. If the latter is the case, then what “loaded guns” did it leave in the for future presidents to pick up? In order to answer this ques- tion, I will first attempt to briefly describe how the Bush administration’s conception of executive power had shaped its view of human rights and in- ternational law in the “war on terror.” In the wake of the attacks on the United States on September 11, 2001, the Bush administration gave new claim to a host of prerogatives and inherent powers. The justification was the ability to protect the in an allegedly brand new international environment, but the claims went well be- yond emergency powers.4 The Bush administration claimed the right to deny the writ of to “enemy combatants” – citizens and noncitizens – as well as the right to interrogation methods that most people consider to be torture.5 These and other changes were all based on a radical new version of the hitherto little known theory of “the unitary executive.” Adherents to this theory constituted a small minority within the legal community, but within the Bush administration, they became a dominant voice. Both in the Depart- ment of Justice and in the Vice-president’s office, they provided legal opinions intended to minimize constitutional checks on the president’s power and re- move restrictions imposed by what Secretary of Defense

3 Quoted from Andy Barr, “Cheney: Obama ‘not likely to cede authority’” , Decem- ber 15, 2008. (http://www.politico.com/news/stories/1208/16594.html). 4 For an excellent analysis of the Bush administration’s extraordinary claims to power, see James P. Pfiffner, Power Play; The Bush Presidency and the Constitution. Press, Washington, D.C. 2008. 5 See , Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. Palgrave McMillan, 2008, Mark Danner, “The Logic of Torture,” The New York Review of Books, Vol. 51, No. 11, June 23, 2004 (http://www.nybooks.com/arti- cles/17190), and , The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals. Doubleday, New York 2008.