Jacob Sullum

Obama signed the National Defense Authorization Act of 2012, which "affirms" the legality of military detention "without trial" for people the president believes have joined or assisted al-Qaida, the Taliban or "associated forces." Romney says he would have signed the bill, too, because "people who join al-Qaida are not entitled to rights of due process." That formulation begs the question of how we know that terrorism suspects are in fact terrorists, which is the sort of issue due process is supposed to resolve.

Obama and Romney, both of whom support the Patriot Act, likewise see eye-to-eye on warrantless surveillance of international communications involving people in the U.S., which Obama voted to authorize in 2008 after calling it "unconstitutional" in a 2007 Boston Globe questionnaire.

Responding to the same survey, Romney, who at the time was seeking the 2008 Republican presidential nomination, dodged the question of whether the president has "inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes."

Romney's response to that question reflects his general disdain for civil libertarian criticism of counterterrorism policies: "Our most basic civil liberty is the right to be kept alive, and the president should not hesitate to use every legal tool at his disposal to keep America safe."

For Romney, who endorses "enhanced interrogation techniques," one such tool seems to be waterboarding, which he, unlike Obama (and John McCain, the GOP's 2008 presidential nominee), refuses to describe as torture.

Back in 2008, condemning the excesses of the Bush administration, Obama sounded better on civil liberties than Romney. Except for waterboarding, however, Obama's counterterrorism policies have been essentially the same as his predecessor's, but with more extrajudicial killings. Don't get fooled again.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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