Why is the media turning a far more skeptical eye toward Obama’s definition of “hostilities” than it ever did towards Bush’s definition of “torture?”
Michael Scherer draws the kind of comparison we’ve been seeing a lot of over the past few days in the wake of the administration’s implausible rationale for determining that Obama has the right to continue the Libya operation without authorization from Congress:
In 2002, Bush’s Justice Department lawyers came up with a novel definition of “torture,” over the objections of several military attorneys, that green-lighted the president’s plans for a harsh interrogation program. Obama’s in-house and State Department attorneys have come up with a novel definition of “hostilities,” over the objection of Pentagon and Justice Department attorneys, that allows U.S. forces to continue bombing Libya without seeking Congressional approval, as required by the 1973 War Powers Act.
There are some issues with this comparison. The Bush administration’s redefinition of torture took place in secret and wasn’t revealed for years. Obama’s OLC has been far less politicized in the sense that it hasn’t been willing to ignore legal precedent in order to tell the president what he wants to hear.
But on the whole, it’s true that the Obama administration’s definition of “hostilities” is no less strained than Bush’s redefinition of torture.
Yet the press is turning a much more skeptical eye towards Obama’s dubious arguments than it ever did towards Bush’s arguments. Indeed, media outlets mostly acquiesced to Bush’s argument — recall the New York Times’ decision to deploy euphemisms for “torture” because Bush and his supporters had simply redefined the term. This is partly because the Obama administration never tried to bully the press into adopting its chosen terms the way the Bush administration did.
More to the point, though, is that President Obama faces what you might call a “hack deficit.” There simply aren’t many legal scholars on the left who are willing to give Obama a pass. Unlike right-wing legal writers, left-leaning ones are treating Obama and Bush equally. Bruce Ackerman, who called for the impeachment of torture memo author Jay Bybee, has now blasted the White House, claiming it “has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.” His colleague Jack Balkin wrote: “If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.” Liberal writers like Eugene Robinson and James Fallows have also rejected Obama’s attempt to redefine the term hostilities. Even in his own administration, State Department Legal Adviser Harold Koh was the only one of Obama’s top legal advisers who backed his interpretation of the War Powers Act while the OLC, Pentagon Counsel Jeh Johnson, and Attorney General Eric Holder all disagreed.
Unlike with Bush, Obama doesn’t have a large stable of liberal legal scholars and commenters who are willing to pretend they don’t speak English in order to defend his policies. As a result, the mainstream media’s standards of objectivity, so easily manipulated by Bush’s defenders, reflect the deep skepticism the administration’s arguments have inspired on both sides. The press, while largely silent about Bush's redefinition of “torture,” is clobbering Obama’s redefinition of “hostilties.”