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What if it were Bush?

By Jack M. Balkin

Robert Wright has an excellent column (online) in tomorrow's Times, on "The Price of Assassination." In it he links to a post that takes Harold Koh to task for his defense of targeted killings by the US in Pakistan and elsewhere, noting, among other things, that Koh's argument would seemingly extend to killing anyone the United States deems affiliated with Al Qaeda or any other similar group, regardless of geographical location. It is widely known that Obama has ordered more drone strikes in his year in office than George W. Bush did in his entire administration. One can only wonder what the response of the left would be if it were Bush (and, say, John Yoo) engaging in (and defending) the actions that seem central to the Obama Administration's policy in Pakistan (and Yemen and....). The most ominous part of Wright's column is an argument that the policy is very likely to be counterproductive, for a number of reasons he goes into. So there may be a "negative trifecta," i.e., a policy that raises serious moral and legal questions and is counterproductive to boot.

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the "anti- and counter-terrorism" policies of the "second Bush Administration," i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith's argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely. (Dejection is the only proper response, for example, to the decision by the Obama Administration to case Dawn Johnson adrift. As the Times suggested in a powerful editorial aptly titled "Politics 1, Rule of Law 0," "the ill treatment of Ms. Johnsen," both by the unscrupulous Republicans who campaigned against her, but, altogether importantly, the Administration as well, which utterly failed to do anything serious to defend her or, of course, to make her a recess appointee, "send[s] a chilling message to lawyers and others who might be willing to do government service: don?t stand on principle and certainly don?t speak out in public."

Full post as published by Balkinization on April 14, 2010 (boomark / email).