How Different Is Obama from Bush on Terrorism?

The U.S. president has found himself caught in some old legal traps -- while creating new ones of his own.

After five years of waiting, Omar Khadr was finally slated to go on trial in Guantánamo Bay this summer -- and then suddenly, the gears ground to a halt. The problem was not that Khadr was just 15 years old when, according to the charges, he threw a grenade in a 2002 firefight in Afghanistan and killed a U.S. soldier. Nor was Barack Obama's administration having second thoughts about restarting the military tribunals that had been stopped when he took office. Instead, the problem lay in the criminal charge against Khadr: fighting without a uniform. According to news reports, Harold Koh, the legal advisor to the State Department, pointed out that CIA agents and private contractors who fire missiles from U.S. drones are civilians too. By charging Khadr with a war crime, the United States might be opening its own operators to the same charge.

This week, a judge set a new and theoretically final date for Khadr's trial, Oct. 18. But the defendant's long journey to the courtroom perfectly encapsulates the difficulties facing the Obama administration when it comes to the legal war on terror. First there are holdover problems from the previous administration: Guantánamo itself, the detainees held there, and some aggressive but not always well-thought-out legal theories. These are troubling to advocates of international law -- some of whom, like Koh, a longtime human rights champion, now work for the government and cannot possibly be happy about, for example, life imprisonment for a crime committed by a 15-year-old child soldier. Then there are new legal challenges associated with the administration's own national defense strategies -- especially the use of drones, which has increased substantially in recent years.

Between the invasion of Iraq, Guantánamo, and the horrors of Abu Ghraib, the United States during the Bush years found itself repeatedly accused of acting unlawfully. The cost of the criticism came in two forms: First, the United States had a harder time finding desperately needed allies in two wars and a worldwide struggle against al Qaeda. Second, being perceived as a lawbreaker hurt America at a time when winning hearts and minds was a security issue, not just a project of soft power.

Obama ran in part on the promise to restore American credibility by complying with domestic and international law -- a highly unusual campaign tactic that captured how serious the problems caused by Bush's policies seemed to be. In the last two years, his administration has tried to change both the reality and the perception of how the U.S. government complies with the law when acting in the interests of national security. Closing Guantánamo, as Obama promised, would have been the best symbol of change. But Congress has made it impossible to transfer the Guantánamo detainees to facilities stateside, so Obama has not been able to fulfill this pledge.

It's not that the former law professor hasn't made any progress at all. The first and most successful step in the legal strategy adopted by the Obama team was to back away from its predecessor's aggressive reliance on the theory of executive power: the idea that the president, as commander in chief, possesses the inherent authority to do anything he deems necessary to protect the country. Instead, in legal memoranda and court filings, Obama has relied primarily on congressional authorization for all national security actions and programs. U.S. courts have for the most part accepted these rationales, and the Obama administration has rarely been held to have violated the Constitution. Today, the question of executive power, so central to the national security law battles of the Bush years, is mostly off the agenda.

Although at first it might appear that this shift is of purely domestic significance -- after all, whether the president has complied with the U.S. Constitution is not a question of international law -- the impact actually extends much further. By overreaching in its claims of executive power, the Bush administration found itself repeatedly rebuffed by the Supreme Court. Each of these reversals had foreign-policy consequences because each made the Bush administration look like a habitual rule-breaker in both the domestic and foreign spheres. Ending the confrontation between the executive branch and the Supreme Court over executive power at least removed a recurring, public set of embarrassments, even if it had little other purpose internationally.

At the same time, however, Obama's team has preserved, whether by necessity or choice, many of the controversial programs that brought criticism to Bush. Obama ordered so-called "black sites" closed, but it is difficult for anyone without access to highly classified information to know how much has actually changed about how the intelligence services capture and detain suspected terrorists. The Guantánamo military commissions are beginning again. Some large number of the nearly 200 remaining detainees will not be tried. They will continue to be held as, essentially, prisoners of war, until hostilities between the United States and al Qaeda end -- an uncertain, open-ended time frame that many critics consider inadequate. Secret surveillance has not ended, though it is now expressly authorized by Congress.

In each case, the legal basis is substantially firmer than it was under the previous administration. But because the programs are the same, global perceptions of U.S. national security probably have not changed in any significant way, even if what the president is doing is now technically more legal.

Then there is the growing international criticism of unmanned drone strikes, especially those in Pakistan, Yemen, and potentially other locations in sovereign states that are not at war with the United States. The use of drones to target individual figures associated with the Taliban, al Qaeda, or related groups comes out of U.S. counterinsurgency doctrine as it has developed over the last several years. In Iraq after the surge, many close observers, especially those in the military, attributed the relative success of U.S. forces as much to the covert targeting, tagging, and killing of insurgent leaders as to the "clear and hold" operations aimed at making the civilian population feel safer. In Afghanistan, clear and hold has not proved especially successful. In Pakistan, of course, the United States has no clear-and-hold option at all. That leaves targeted strikes as the remaining component of counterinsurgency, and drones offer a highly attractive option.

In March, Koh gave a speech for the American Society of International Law in which he responded to the critique that drone strikes amount to assassination. The choice of Koh to give the speech was significant. Koh (who is a mentor of mine) has a major interest in defending his distinguished record by showing that his employer complies with international law. In his speech, he explained that members of armed groups are belligerents and therefore lawful targets for a country acting in the course of war or in self-defense.

But Koh avoided some of the hardest questions. He did not address the issue of exactly how drone strikes could be justified in places where the United States is not at war -- not surprising, as the government has not acknowledged its attacks in Pakistan and Yemen. Traditionally, such attacks could be justified either by the consent of the country attacked or by its unwillingness or inability to pursue the belligerent targets on its own. But the governments involved aren't likely to want to acknowledge any of these possibilities.

Beyond the difficulty of where the attacks occur are the questions of who is targeted -- and by whom. Obama's lawyers have stated publicly that, unlike their predecessors, they consider the United States to be at war only with those who "materially support" the Taliban or al Qaeda and its associates, not those who offer indirect support. But the U.S. definition of material support is broader than what many international lawyers would consider to be the accepted norm -- including such figures as the U.S. citizen and al Qaeda advocate Anwar al-Awlaki, who is reportedly on the American "shoot to kill" list of drone targets. Other reports suggest that drug lords who give money to the Taliban have been considered legitimate targets, again a remarkably aggressive definition of "support." By spreading the net widely, the United States runs the risk of seeming to slight international law.

What's more, the fact that drone strikes are carried out by CIA civilians raises the possibility that they could be war crimes (if the original theory of the charge against Khadr were right). At the very least, civilian operators are not subject to immunity from prosecution for their battlefield conduct and could in theory be charged with domestic crimes of murder in the country where the attacks occurred or in Virginia. Finally, as special rapporteur Philip Alston pointed out in his May report to the U.N. Human Rights Council on targeted killings, the CIA does not subject itself to any sort of public review or accountability when things go awry, a practice now fairly common for the regular military. According to Alston, the CIA's unwillingness even to acknowledge its drone strikes render the targeting doubtful as a matter of international law.

On Aug. 10, Omar Khadr's trial got under way without the war crime charge, on the theory that he killed a U.S. serviceman in violation of a federal statute. Almost immediately his lawyer fell ill, causing further delay. Khadr must be used to it -- and his tribunal will not end matters, in any case: The statute under which he was charged was passed after the 2002 firefight, and the courts have yet to review the question of whether the military commission has legitimate jurisdiction to try such a crime. The road to the Supreme Court will be long -- but Khadr's case is headed there, as is the Obama administration itself.



Should We Be Afraid of the Superbug?

A mysterious infection-breeding gene is sweeping the world -- or possibly just cable news.

For a few days this August, much of the news media in the West became convinced that we were headed back to the 1800s, medically speaking. A study in the September 2010 issue of British medical journal the Lancet argued that bacteria carrying genes for NDM-1, a gene that imparts resistance to a key family of antibiotics, had made their way through India and Pakistan into Britain and were now threatening to derail medical treatment across the developed world. Linked with the always shady-sounding concept of "medical tourism" -- the practice of traveling to other countries for budget surgery -- the so-called "superbug," able to breed vicious and deadly infections, became an instant media panic during a slow news month. The Drudge Report and Andrew Breitbart's news website both featured it. A Guardian science columnist wrote, "Now, the post-antibiotic apocalypse is in sight."

Er, not so much. As with most August stories, the reality of superbugs is a bit more complex than the media has portrayed it. Yes, antibiotic-resistant bacteria are a threat, as this week's news of an outbreak among premature infants in London reminds us. But no one yet knows how bad NDM-1-related infections could be. Not only is it far too early to say we're headed for apocalypse, we've also got a lot to learn from superbugs -- namely, how our own over-use of antibiotics is making it more likely that a superbug of the future could live up to this summer's hype.

Alexander Fleming discovered the first antibiotic by accident in 1928, when he left out a bacterial culture for a month while on vacation and came back to find that some of the bacteria had been killed by a fungus named Penicillium. By the early 1940s, a commercial product, penicillin, was mass-produced to cure bacterial infections in humans, and medical practice hasn't been the same since.

These days, antibiotics are a major weapon in medicine's war on disease, used to treat everything from life-threatening infections like meningitis to more run-of-the-mill ear infections. For more advanced medical technologies, like chemotherapy or organ transplantation, antibiotics are needed to prevent and treat infections while patients heal. Neither treatment would be possible without antibiotics.

At this point, in fact, antibiotics are suffering from their own success. They are so engrained in the medical and social culture that over-prescription is a major problem. Recent surveys have found that 70 to 80 percent of doctors' visits for sinus infections result in an antibiotic prescription. But most sinus infections are caused by viruses, and antibiotics don't cure viral infections.

The medical sin of antibiotic overuse goes beyond mere ineffectiveness -- it actually can be harmful. Here's how it works: Bacteria are everywhere on our bodies, even when we are not sick. When we take antibiotics for a bacterial infection, they only kill certain bacteria (usually the ones making us sick). Then, as the body gets better, the surviving bacteria multiply and take over. Now and then a few remaining bacteria carry special resistance to antibiotics -- which is what kept them alive in the first place. With the other bacteria out of the way, the resistant bacteria (i.e., the superbug) can multiply and sometimes cause problems. For example, if one of those superbugs causes an infection, some antibiotics won't work anymore, and then you have an infection that is more difficult to treat.

One of the prototypical superbugs caused by antibiotic use (and overuse) is Methicillin-Resistant Staphylococcus aureus (MRSA). MRSA is resistant to many antibiotics, including penicillin, and causes a variety of problems in humans: mostly skin infections, but also more invasive diseases like pneumonia and bloodstream infections.

Another superbug that's been around for a while but has also taken a recent media tour is Clostridium difficile (C. diff), which can be spread when antibiotics wipe out normal intestinal bacteria that keep C. diff in check. A recent study found C. diff infection occurred in 13 out of every 1,000 hospitalizations. C. diff causes diarrhea, and in some cases a particularly severe and sometimes lethal infection of the colon.

Looking at bacteria carrying the NDM-1 gene, C. diff, and MRSA, it's not surprising that people would panic over the possibility of these or other, even more resistant, bugs of the future making our advances in antibiotics worthless. And it's a legitimate fear. Although there are antibiotics and other treatments that work against all known superbugs, bacteria will continue to evolve, developing stronger antibiotic resistance in the future. It is conceivable that bacteria will someday outsmart our best medical technologies.

But it is unlikely that it will happen any time soon. One reason is that there are many different classes of antibiotics, so while some don't work against superbugs, there are usually others that do. Antibiotics that have been shelved for years might even be re-introduced to fight superbugs, though obviously this would be less than ideal because of higher risk of side effects. A better and more likely solution is for drug companies and other scientists to discover new classes of antibiotics. The financial incentives for heading off a true superbug-led medical catastrophe would be huge -- something that always drives medical innovation quite nicely, as it did with treatments for HIV in the 1990s.

Beyond praying for technology to catch up with biology, however, we also need to cut back on the over-prescription of antibiotics, ideally by giving doctors incentives to adhere to standard treatment guidelines. The National Quality Forum has recently endorsed a measure requiring physicians to stop prophylactic antibiotics used during surgery within 24 hours of the end of the procedure, ensuring that people stop getting antibiotics when they stop needing them.

These sorts of measures need to happen everywhere, not just in the United States or in the developed world. Reducing the spread of superbugs in only one part of the world is likely to be ineffective because the ease of global travel and medical tourism can spread superbugs bred in Bangladesh directly to Boston in a matter of hours. So creating stricter standards for antibiotic use in the many countries where patients can bypass doctors and buy antibiotics over the counter from pharmacies would be crucial.

Like the MRSA panic of last summer, this year's superbug frenzy, too, will die down. On the scale of media-freak-out irrationality, superbugs have more credibility than the Large Hadron Collider apocalypse, for example, but they're not even up there with swine flu.

Ultimately, as with most such overreactions, the real solution is to give some calm thought to the serious problems behind the panic -- in this case, over-prescription of antibiotics -- and then just be glad it's September.

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