In Power and Constraint, Jack Goldsmith attributes Obama’s counterterrorism policy not to indecision but to a national consensus that the status quo he inherited was legitimate. Goldsmith contends that Obama has “continued almost all of his predecessor’s counterterrorism policies,” because by the time he took office, checks and balances had reined in Bush’s worst excesses.

Goldsmith is right that checks and balances, broadly construed to include nongovernmental organizations, the press, foreign pressures, and internal government watchdogs and dissenters, forced Bush to curtail many of his most lawless measures. Goldsmith’s account of how these influences operate to improve accountability in the modern era is perceptive and nuanced. But he abandons that sensitivity to nuance when it comes to his claim that Obama continued Bush’s policies without significant change. For example, he writes that President Obama “sound[ed] very much like George W. Bush” when he said that “my single most important responsibility as President is to keep the American people safe.” But one would be hard-pressed to find a single president in American history who has not said the same thing.

In fact, President Obama has done many things to distinguish his administration’s policies from his predecessor’s. He ended the CIA’s “enhanced interrogation” program, closed the CIA’s secret prisons, and released the previously secret torture memos. He reformed the military commissions, pledged to close Guantánamo, and increased the substantive and procedural standards for detention in Afghanistan. He introduced pro-transparency reforms with respect to Freedom of Information Act requests and declassification reviews, rejected rendition as a means of outsourcing torture, and substituted a more surgical and precise targeting strategy for Bush’s more sweeping “war on terror.” He refused to rely on the “inherent” and unconstrained commander-in-chief authority that Bush infamously invoked, and insists that his authority is limited by statutes, the Constitution, and international law, including the laws of war.

Goldsmith concedes that with respect to legal limits on its power, “the Obama administration seemed to embrace them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny.” But he dismisses this as “prettier wrapping,” when it is in fact the essence of the distinction between Obama and Bush. Bush grudgingly sought authorization from Congress for military commissions only after the Supreme Court declared his unilaterally created commissions unlawful; Obama went to Congress of his own accord in 2009 to make the tribunals more fair (by, for example, prohibiting coerced testimony and restricting hearsay). And when a panel of the US Court of Appeals for the D.C. Circuit ruled that his military detention authority was not limited by the laws of war, President Obama took the extraordinary step of telling the court it had granted him too much power, insisting that his authority to detain is limited by the laws of war. This is not merely “prettier wrapping”; it is the difference between a president who seeks to act within the rule of law and a president who sought to discard it.

It is true that, much to the dismay of many human rights groups, President Obama has continued military detention without charge and military commissions. But these are not “Bush policies”; they both have a well-established place in wartime that extends far back at least to the nation’s founding. Even most human rights and civil liberties organizations acknowledge that an armed conflict exists in Afghanistan with al-Qaeda and the Taliban. Wars routinely involve detention of the enemy without charge, and often involve military trials for war crimes.

There are, to be sure, disputes about the proper scope of the battle and the proper procedures for military commissions. But the main reason that military detention and commissions were controversial was the way Bush implemented them—detaining large numbers of people without any process and on the basis of dubious evidence, subjecting them to brutal and inhuman interrogation practices, and asserting the power to try them in kangaroo courts. Obama has unequivocally repudiated those practices, and has sought instead to conform his counterterrorism policy to law. This is an important and welcome change.

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President Obama is not the same as President Bush, and has not institutionalized the worst of Bush’s policies. By this time in President Bush’s first term, there were widespread and credible reports of systematic torture and inhumane treatment of detainees, renditions to torture, indiscriminate roundups of Arabs and Muslims within the United States having nothing to do with terrorism, the announcement that the Geneva Conventions would not bind us, and the creation of a military commission system that would permit executions based on coerced confessions and without judicial review. By contrast, few abuses have been reported during President Obama’s first term. Obama’s opposition to any efforts at accountability for the past, even an independent commission, remains deeply disturbing, as do his insufficient efforts at transparency. Not a single high official has been held legally responsible for a violation of the law barring torture, for example. But surely we are better off under an administration that has ended torture, closed the black sites, sought to reform military commissions, and insisted that all its actions must conform to the laws of war in particular and to the rule of law more generally.

The kill lists and drone attacks etc. are pretty horrible. The ostensible defense of them is that they are more targeted. So while both Bush and Obama killed civilians, Bush killed hundreds of thousands indiscriminately, while Obama killed only hundreds while focusing more precisely on actual terrorists.

The point is that US policies will always have some human cost, either through action or inaction. How to make that cost as small as possible? How to apply those policies in a lawful way?