One of the central themes of Barack Obama's campaign for president was outrage over alleged Bush administration abuses in the fight against terrorism. But as president, Obama is finding himself in the awkward position of quietly endorsing some of his predecessor's legal arguments when it comes to detainees and their treatment.
To be sure, Obama has changed the tone, banning controversial interrogation techniques, pledging to close the Guantánamo Bay detention center, and banishing the phrase "war on terrorism." Last week, he halted use of the term "enemy combatants" to describe those held at Guantánamo Bay. But navigating the legal issues surrounding detainees is proving to be a political high-wire act. On one side are Republicans like former Vice President Dick Cheney, who went on television to say that Obama's terrorism policies are making America more vulnerable. At the same time, Obama is taking flak from the left for a decision to have his Justice Department continue the Bush policy of trying to shield from prosecution government officials involved in detainee treatment.
Making matters more awkward is the leak of a long-secret report by the Red Cross, which provides the latest assertion that some suspected terrorist detainees were tortured by U.S. personnel while in captivity. The report concluded that what the Bush administration dubbed "enhanced interrogation techniques," including waterboarding, "constituted torture," while other practices "constituted cruel, inhuman, or degrading treatment."
The Justice Department's controversial legal opinions revolve around a series of lawsuits brought by former U.S. detainees over their treatment while in U.S. custody. Under Obama, the U.S. government is continuing to argue—as it did during the Bush years—that U.S. officials acting in good faith in the past should not be held legally liable for their actions. In response to a lawsuit by four former Guantánamo Bay detainees, Justice Department lawyers asserted this month that prosecuting military or government officials could cause them to make future decisions based on the fear of litigation rather than appropriate policy.
The Obama administration's stance has disappointed some of the president's supporters, along with human-rights advocates. "The Bush administration used circumlocution to avoid what can no longer be ignored," says Eric Lewis, a lawyer representing the four men. "Quite clearly, waterboarding is torture, and now the Red Cross report shows that other techniques, used in combination, are also torture."
Inquiries into past detainee practices could still be pursued in Congress, where several members are pushing for a so-called truth commission on Bush's counterterrorism activities. The Senate Select Committee on Intelligence has opened a yearlong probe of its own to examine CIA interrogations.
If the United States is unwilling to pursue the issue, others appear eager. This week, when former President Bush flew to Canada to deliver a speech, a group of Canadians urged their government to arrest Bush for ordering torture. The effort failed.