This post was written by Curtis A. Bradley & Eric A. Posner
Now that the critics of the Bush administration’s theories of executive power hold office in the Obama administration, one might have expected a U-turn in the executive’s position on the law. But rather than repudiating Bush’s theories of executive power, the Obama administration has embraced them in substance. At the same time, it has used symbolic gestures and changes in labeling to mask the continuity.
President Obama announced that he would close Guantanamo but not that he would close other detention centers around the world, such as those in Iraq and Afghanistan. In doing so, he followed a political consensus, shared by Bush and McCain, that Guantanamo had become a public relations problem. Shortly after making the announcement about Guantanamo, the Obama administration endorsed the Bush administration’s argument that U.S. courts cannot review a similar detention facility at the Bagram Air Base in Afghanistan that is governed by less formalized processes and currently houses substantially more prisoners.
Meanwhile, the Obama administration has also escalated the military campaign in Afghanistan and Pakistan, including the use of Predator drone attacks, a course of action that will mean that more Taliban and Al Qaeda members will be killed rather than detained. This is one way to solve the problem of detention, but it hardly signifies a radical change of principle.