(updated w/transcript)

Back in February, The New York Times‘ Charlie Savage — who won the Pulitzer Prize for exposing Bush’s use of signing statements to break the law — wrote an article reporting that, after a first-week Executive Order from Obama banning torture, “the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda,” which is “prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.”  About Savage’s February article, I wrote:

While believing that Savage’s article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly).

In retrospect, Savage was right and I was wrong about that:  his February article was far more prescient than premature. 

Today, in the NYT, Savage has another article examining the same topic, headlined:  ”To Critics, New Policy on Terror Looks Old.”  In it, he explores this question:  ”Has [Obama], on issues related to fighting terrorism, turned out to be little different from his predecessor?”  A key point from Savage’s article — which I’ve tried to emphasize several times — is that whereas these policies were supported by roughly half the population (Republicans) in the Bush era but vehemently opposed by the other half (at least ostensibly), Obama’s embrace of them is now causing a large part of the other half of the population (Democrats) to support them as well, thus entrenching them as bipartisan consensus:

In any case, Jack Balkin, a Yale Law School professor, said Mr. Obama’s ratification of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations.  By bestowing bipartisan acceptance on them, Mr. Balkin said, Mr. Obama is consolidating them as entrenched features of government.

“What we are watching,” Mr. Balkin said, “is a liberal, centrist, Democratic version of the construction of these same governing practices.”

That was the point former Bush DOJ lawyer Jack Goldsmith made when arguing last month that Obama is actually strengthening (rather than “changing”) the Bush/Cheney approach to Terrorism even more effectively than Bush did by entrenching those policies in law and causing unprincipled Democrats to switch from pretending to oppose them to supporting them, thus transforming them into bipartisan dogma.

Savage is my guest on Salon Radio today to talk about Obama’s record on terrorism and civil liberties, and the way — as Savage describes it — Obama has embraced and replicated many of the core “War on Terror” polices of the Bush presidency, particularly in the form they took in Bush’s second term (even as Obama largely purports to reject the Bush theories of unilateral presidential power).  We also discuss how so many people who previously criticized these polices rather vocally when pursued by Bush are either silent or actively supportive now that Obama is defending them.  There simply aren’t any better reporters on these issues than Savage, and I highly recommend listening to his very nuanced and well-informed views on these topics.  

The discussion is roughly 20 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript will be posted shortly.

UPDATE:  The transcript is now posted here.

On a note related to all of this, the Obama administration — which has repeatedly delayed releasing a less redacted version of the 2004 report of the CIA’s Inspector General that aggressively challenged both the legality and efficacy of torture — today announced that it would delay its disclosure by at least another seven weeks, to August 31, 2009.  We’re in the New Era of Tranpsarency.

To listen to this discussion, click PLAY on the recorder below:

Glenn Greenwald: My guest today on Salon Radio is Charlie Savage of The New York Times, who won the Pulitzer Prize for his work on George Bush’s use of signing statements to evade legal obligations.  He’s also the author of the 2007 book Takeover – the Return of the Imperial Presidency and the Subversion of American Democracy. Charlie, thanks for joining me today.

Charlie Savage: Thanks for having me on.

GG: Back in February you wrote an article in The New York Times in which you reported:  ”even as it pulls back from harsh interrogation and other sharply debated aspects of George W. Bush’s war on terrorism, the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting al-Qaeda,” and you said that these developments were “prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush era policies.”  And at the time I wrote about your article and I think I called parts of it, in my view, slightly “premature,” and I actually, in retrospect, think that that article now was more prescient than premature.

I wanted to ask you, since that February article, it’s been several months, and you have a new article in The Times today that poses this question:  “Has Obama, on issues relating to fighting terrorism, turned out to be little different from his predecessor?”

With regard to the actions that the Obama administration has taken since you wrote that February article, in your view, has the Obama administration continued to express, as you called it, “continued support for the major elements of Bush’s approach to fighting al-Qaeda?”

CS: The answer to that is:  it depends on what you mean by Bush’s approach to fighting al-Qaeda.  If you mean the actual policy of how are we detaining people, how we are monitoring communication in order to gain intelligence, what we are doing with Predator drone strikes in Pakistan and so forth, the substance of what is happening now, and what was happening on, say, January 20, 2009 before noon, when Bush was president, is very similar, and there’s some superficial changes like they’re going to try to close Guantanamo, but the policy of indefinite detention without trials for terrorism suspects who are deemed too dangerous to release, but too difficult to put on trial, remain.  So the essence of that policy is the same, whether it’s at Guantanamo or somewhere else.

On the other hand, the Obama people point out that they dramatically toned down the rhetoric that George Bush was famous for, as far as asserting a unilateral, inherent, sweeping theory of Commander-in-Chief power that the president can do whatever he wants at his own discretion – set aside legal constraints, not go to Congress to change laws, but simply bypass them if he thinks doing so is necessary to protect national security – the Obama people don’t talk like that.  What they’re doing is getting congressional authorization statutes, so in that sense, what they’re doing is quite different, or at least how they’re going about getting to the end is quite different than what Bush did, at least in Bush’s first term.

GG: Let me ask you about that, because I think there have always been two separate prongs to the criticism of how Bush handled these policies. One is the content of the policies itself, namely the denial of basic rights, the refusal to recognize core American values and principles and the like, and the other aspect of it is how those policies were effectuated.  There was a good period of time when they were just outright violating the law, breaking the law, acting contrary to congressional statutes. But then there came a point when, due to Supreme Court rulings that they were breaking the law, and the fact that some of these programs were leaked and became publicly known, that they actually went to Congress and got support for these same policies.

So, in terms of that second category – namely how these policies were effectuated, whether they were breaking the law or doing it with congressional authorization – can you describe the difference between, say, the first Bush term and the second Bush term in terms of how they went about doing these policies?

CS: Right. So, what you’re getting at, this is a round-about way of answering that – is during the Bush administration years there was a great chorus of criticism from different factions that all agreed that what the Bush administration was doing was bad, but they were coming at it from different angles.

There was the civil libertarian faction who thought that the state should not have this much power over individuals, government agencies should not be able to wiretap without getting warrants, people should not be detained without trial, this is just too much state power and not enough individual rights. And secondly, there was the rule of law critique, which was kind of agnostic on that issue, but was saying, wait, the president should not have the power to violate statutes, and treaties that had been ratified, and the law.

So, in the second term of the Bush administration, prompted in part by news reports and in part by the various Supreme Court rulings, Congress finally woke up and started adjusting federal statutes to bring them into alignment with what the Bush administration was doing.  In the Military Commissions Act, they authorized military commissions and a bunch of other stuff related to detainees, and in the FISA Amendment Act and the Protect America Act, they authorized the National Security Agency program, wiretapping without warrants. And that relieved a lot of the legal pressure on what was happening.

The rule of law crowd kind of fell away at that point because now the president was acting pursuant to and in compliance with federal law. There was still the civil libertarian critique, which has some rule of law overtones, where the ACLU would say, well wait a minute there’s still the constitutional problem with wiretapping without warrants, but at least you didn’t have a specific, explicit, federal statute that the president seemed to be flouting any more. That made a big difference.

But in addition to that, what we now know is that it appears that even though they continued to insist that their harsh interrogation policy was legal all along, they stopped doing most of that stuff after Abu Ghraib, or certainly into the second term of the Bush administration. So even though you had, recently, Dick Cheney saying, you know, oh my God, Obama saying that the CIA has to not torture people is going to cause tremendous risks to the country, and if we get attacked that will be why.  In fact, those policies hadn’t been exercised for years. And so, the set of counter-terrorism programs that Obama inherited, and has largely continued since January 20, looked very different than what was happening in 2002, 2003, 2004.

GG: So then, let’s take that comparison, then, because part of the significant controversy once the Democrats took over control of the Congress in 2006, was that as Bush administration counter-terrorism policies became public, as they became invalidated by courts including the Supreme Court in the case of Hamdan in 2006, that what the Democratic Congress proceeded to do was essentially to authorize, to give its legal approval to, many of these most controversial policies, so that the controversy in the second term was no longer about “is Bush breaking the law?”; instead, the controversy was:  look at Congress giving its approval to these radical policies that, as you say, civil libertarians objected to in terms of what they actually did.

So in terms of comparing the Bush second term terrorism approach to Obama’s current approach since he’s been inaugurated, since you wrote that February article, do you think it’s fair to say that those two periods — namely Bush’s second term, Obama now — are much more similar than they are different in terms of how they’re approaching these issues?

CS: Oh, I think it’s very fair to say. I mean, Bush had emptied the CIA prisons in 2006 when he brought all the high-value people to Guantanamo; they rhetorically said, we can still do that if they want, but it’s not clear that they were. With Obama now reviving military commissions, but with statutory authorization is what Bush was doing after the Military Commissions Act of 2006. The wiretapping program, in alignment with federal statute, is quite the same, and so forth. There’s a few things that have been adjusted around the edges; the Obama people, A) they would say, look, we’re still reviewing this, this isn’t the final chapter yet, but B) they would also say, we’ve added some extra protections here or there. These are, in some places, true, but in terms of the broad outline, it is essentially the same thing going forward.

You know, I had this interesting conversation when I was working on this article that came out this morning with Jack Balkin at Yale Law School, and he compares this moment to when Dwight Eisenhower took over, in 1953, and after FDR and then Truman had built up the New Deal administrative state, which Republicans hated, but then Eisenhower, instead of dismantling it, just sort of adjusted it with his own policies a little bit, and kept it going. And at that point, there was no longer any sort of partisan controversy about the fact that we were going to have this massive administrative state; it just sort of became a permanent part of the governing structure of the country.

And in the same way he said in 1969 when Richard Nixon took over from LBJ, he did some adjustments to the great society welfare state that LBJ had built up, but he didn’t scrap it. And at that point, Republicans and Democrats had both presided over the welfare state and the welfare state became part of just how government worked.