Obama uses Bush plan for terror war

As the ninth anniversary of the 9/11 attacks approaches, much of President Obama’s counterterrorism policies and his understanding of executive power closely hew to the last administration, which he criticized as a candidate for the White House.

On issues ranging from the government’s detention authority to a program to kill al Qaeda terrorist suspects, even if they are American citizens, Mr. Obama has consolidated much of the power President George W. Bush asserted after Sept. 11 in the waging of the U.S. war against terror.

The continuities between the two administrations were evident this week, when the U.S. Court of Appeals for the 9th Circuit dismissed a lawsuit that five former U.S. detainees brought against a subsidiary of Boeing Co. known as Jeppesen Dataplan.

The former detainees alleged that Jeppesen Dataplan facilitated their transport to U.S. and foreign prisons, where they were tortured. The Obama Justice Department, like the Bush Justice Department before it, urged the court to dismiss the case on grounds that state secrets would be disclosed in litigation.

In a 6-5 decision, the court ruled in favor of the federal government.

“It can fairly be said that the Bush administration made torture the law of the land and the Obama administration is making impunity for torture the law of the land,” said Ben Wizner, the American Civil Liberties Union (ACLU) attorney who represented the plaintiffs in the case.

To be sure, Mr. Obama has made some changes to Mr. Bush’s counterterrorism policies. On his first day in office, Mr. Obama signed an executive order that shuttered the CIA’s enhanced interrogation program, which critics say practiced torture against senior al Qaeda suspects.

In an executive order, Mr. Obama also closed the secret “black site prisons,” though he kept open temporary facilities where suspects could be taken before being sent elsewhere. Mr. Obama also pledged to close the Guantanamo Bay, Cuba, prison by the end of his first year in office, but that facility remains open.

For now, U.S. policy is not to send any Yemeni prisoners back to Yemen, where high-profile jail breaks have resulted in the freeing of senior members of al Qaeda. More than half of the 180 prisoners at Guantanamo Bay are from Yemen.

“Obama has defined this as a war, just like George Bush did. He gets great marks for the macro statement, but some of the other rhetoric confuses that fact as well,” Michael Hayden, Mr. Bush’s last CIA director, said in an interview Thursday.

Mr. Hayden cited as an example the Justice Department reading Miranda rights to Umar Farouk Abdulmutallab, the Nigerian national who is accused of trying to blow up a flight from Amsterdam to Detroit on Christmas Day.

Overall, Mr. Hayden said, there is more continuity than divergence between the Bush and Obama administrations’ approaches to the war on terror.

“You’ve got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners at Bagram [in Afghanistan],” Mr. Hayden said, listing the continuities. “And although it is slightly different, Obama has been as aggressive as President Bush in defending prerogatives about who he has to inform in Congress for executive covert action.”

The White House declined to comment for this report.

However, the Obama administration has specifically said it differs from the Bush administration in that Mr. Obama has rejected the view that the executive branch has inherent wartime authorities that allow it overrule laws passed by Congress.

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