Bush tortured; Obama kills

"Targeted killing, now the hallmark of the Barack Obama administration’s war on terrorism, has its roots in rejection of the legal justifications once offered for waterboarding prisoners" under Obama's predecessor George W. Bush, writes Harvard Law School Prof. Noah Feldman in this article posted by Bloomberg LP.

"In the Bush years, after the CIA and other agencies balked at the interrogation techniques being urged by Vice President Dick Cheney, the White House asked the Department of Justice to explain why the most aggressive questioning tactics were legal.

"Lawyers at the Office of Legal Counsel -- especially John Yoo, now a professor at the University of California at Berkeley -- produced secret memos arguing that waterboarding wasn’t torture... (and that) the president had the inherent constitutional authority to do whatever was needed to protect the country...

"A firestorm of legal criticism followed. One of the most astute and outraged critics was Marty Lederman, who had served in the Office of Legal Counsel under President Bill Clinton. With David Barron, a colleague of mine at Harvard, Lederman went on to write two academic articles attacking the Bush administration’s theories of expansive presidential power.

"Eventually, Jack Goldsmith, who led the Office of Legal Counsel in 2003-04... retracted the most extreme of Yoo’s arguments about the president’s inherent power.

"In the years leading to the 2008 elections... the Supreme Court weighed in, finding that detainees were entitled to hearings and better tribunals than were being offered. As a candidate, Obama (promised) to close the prison at Guantanamo Bay...

"Guantanamo is still open... Instead of detaining new terror suspects there, however, Obama vastly expanded the tactic of targeting them, with eight times more drone strikes in his first year than in all of Bush’s time in office. Barron and Lederman, the erstwhile Bush critics, were appointed to senior positions in the Office of Legal Counsel -- where they wrote the recent memo authorizing the Al-Awlaki killing" of an American citizen, Al-Qaeda propagandist, and alleged terrorist leader, in Yemen.

"What explains these startling developments? If it’s illegal and wrong to capture suspected terrorists and detain them indefinitely without a hearing, how exactly did the Obama administration decide it was desirable and lawful to target and kill them?

"The politics were straightforward. Obama’s team observed that holding terror suspects exposed the Bush administration to harsh criticism (including their own). They wanted to avoid adding detainees at Guantanamo or elsewhere... 

"Dead terrorists tell no tales -- and they also have no lawyers shouting about their human rights...

"The future direction of the policy is therefore clear: Killing is safer, easier and legally superior to catching and detaining... Legal memos are weapons of combat -- no matter who is writing them."

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