In September 2001, Congress passed a joint resolution entitled The Authorization for Use of Military Force (AUMF), which gave the president the authority to use all "necessary and appropriate force" against those nations, organizations, or persons he determines planned, authorized, committed, or "aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
A rather amazing hypocrisy has occurred with the war on terror. When it comes to relying on the words of AUMF for actions, President Obama seems to always receive blanket approval for the use of drones, even to eliminate American citizens. But his predecessor, George W. Bush, would never have gotten such approval and is still criticized for his use of detentions on Guantanamo Bay. By eliminating terrorists instead of capturing them for questioning and detention (and subjection to torture), the Obama administration has managed to avoid questions that Bush endured of violating human rights while simultaneously causing more violations than any form of detention and torture could have.
Why has this occurred? Perhaps it has something to do with the failed search for WMDs by Bush’s administration and the elimination of Osama Bin Laden by Obama’s administration. When you consider torturing methods, such as waterboarding (featured in Kathryn Bigelow’s Zero Dark Thirty) against targeted killings, the disparity is absolutely unarguable. You have to be alive for your human rights to be violated. The recently leaked Justice Department white paper outlining the justification for the use of drone attacks would never have received quiet acceptance during Bush’s administration.
The simple answer why the Obama administration has not been heavily criticized is two-fold: the results and the law. You don’t question the coach running your football team when you're winning. It happens in college football all the time. The dirt only seems to become visible when the losses start piling up. And instead of choosing to bend an inflexible rule, you adapt your behavior by reining it under another rule that is rarely substantively questioned.
Al-Qaeda is clearly far worse off during Obama’s administration than that of Bush. Information collected through Bush’s detention programs may have led to Bin Laden’s death, but it occurred when Obama delivered the order. Torture is illegal under all forms of international law, considered one of the three norms of non-derogation-able conduct along with genocide and slavery. You aren’t going to win a debate when you try to justify committing one of the three aforementioned acts. But you certainly can win a debate on behalf of self-defense, no matter how you spin it.
It was very easy to criticize Bush for his detention programs because they seem to be predicating on violating a non-derogation norm of international law. We do not criticize the Obama administration in the same manner because it has delivered crippling blow after crippling blow to Al-Qaeda seemingly without committing genocide, slavery, or torture.
But this causes us to forget about everything else that comes along with drone attacks: spying on individuals including American citizens, no real threshold, subjective decision-making the killing itself, loosely defining the “imminence” of an attack against U.S. interests, and violating the sovereign territory of other nations. These individuals are not given any chance of anything once they are targeted. When someone is detained and happens to be subjected to torture, they always have the opportunity to speak, whether anything comes of it or not.
If you compare the language of the recently leaked white paper with past Bush torture memorandums, there are quite a few similar themes. Both enable shadowy government programs, are hidden from the public and most congressional oversight, and cloud the use of CIA personnel and operations.
Instead of using detention and torture, the Obama administration has relied heavily on self-defense to justify the many drone attacks that have occurred, with AUMF sitting pretty as the support. And self-defense always seems to receive the least amount of scrutiny.