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Executive Power and the 80% Problem

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People are intensely interested in figuring out how President Obama’s view of his presidential authority differs from President George W Bush’s, and rightly so.  Some of the legal underpinnings for many of the Bush administration’s most controversial policies – the initial creation of military commissions, the resistance to providing judicial review for detainees held at Guantanamo, the use of aggressive interrogation techniques, the NSA’s warrantless surveillance program – relied on a theory of presidential authority that many thought arrogated too much unilateral power to the presidency.  And of course candidate Obama campaigned against these programs and the legal theory of the presidency that supported them.  A much-noted Q&A with Charlie Savage in the Boston Globe back in December, 2007 summarizes candidate Obama’s views.

Two months into his term, President Obama has taken steps to revise or reverse all of these policies.   He has announced the cessation of military commission trials.  He has announced the closing of Guantanamo, after a planning and evaluation process to determine which cases can be transferred to the federal courts or to military courts martial.  He has announced that the Army Field Manual defines the permissible interrogation techniques for American personnel.  And we believe, but do not know, that warrantless surveillance of Americans within the United States is no longer occurring, subsequent to Congress amending the FISA statute to authorize a program that meets national security requirements while subjecting the procedures for that program to judicial review by the FISA court.   Led by Vice President Cheney, conservative critics claim that these policy changes are making the country weaker and less secure.

Despite these noticeable and notable changes, somewhat remarkable narrative is gathering momentum:  On issues of presidential power, Obama is not much different from Bush.  Making the narrative even more interesting, it is coming from the left and the right. 

From the left, Obama faces the “eighty percenter” problem.  In Battle for Justice:  How the Bork Nomination Shook America (1989), Ethan Bronner reports that Justice Department conservatives in the Reagan-Meese administration derided Anthony Kennedy as an “eighty percenter.”  In their opinion, Kennedy “could be counted on for a conservative vote in eighty percent of the cases but not more.”   Instead of seeing this as an asset in eighty percent of the cases, conservatives obsessed about the twenty percent and saw Kennedy as a turncoat.

In a very similar way, the left is now focusing on the ways in which Obama falls short of crystalline purity on their issues.  Obama announces that he is closing Guantanamo within a year – and people complain that he is not doing it immediately.  He directs an orderly, individualized review of how to resolve the cases of each of the Gtmo detainees – and people complain that he has not told the Defense and Justice Departments either to lodge criminal charges or release them immediately.  He issues an order confining interrogation techniques to the Army Field Manual – and people complain that he has left open the possibility a study could recommend more aggressive techniques in some special circumstances.  He announces that his administration will be more transparent and open – and people complain that Justice Department lawyers have continued to assert the state secrets privilege in court. Glenn Greenwald at Salon has a particularly well thought out post taking Obama to task for being not that much different from Bush, with the immediate object to Greenwald’s criticism being aimed at Obama’s approach toward enemy combatants. 

Supporters of Bush are also fixating on the twenty percent, in their case primarily not to attack Obama (except to tweak him for being a hypocrite), but in order to try to rehabilitate Bush.  Now that Obama’s actually in power and not just out on the stump campaigning, his views on executive authority are barely distinguishable from Bush’s – and that’s a good thing.  It shows that Bush had it basically right all along.   

Fellow Executive Watch contributors Curtis Bradley and Eric Posner have articulated well the idea that Obama and Bush are pretty close together on how they understand presidential authority.  Scanning a number of Obama positions, they conclude that “we have no particular quarrels with the substantive positions that the Obama administration has taken so far in the war on terrorism.  Our point is simply that there is much less distance between those positions and the positions of the Bush administration than many people would like to acknowledge.”  Rich Lowry makes similar points at National Review – in Lowry’s case, it’s Obama’s approach to signing statements that bears a striking similarity to Bush’s. 

No one can quarrel with the left for pointing out places where they disagree with what Obama is doing.  Nor can anyone fault conservatives for trumpeting that Obama’s actions are not a total repudiation of Bush’s approach to things.  But the overall claim that Obama and Bush are just not that different has no validity.  This is a perspective that can be maintained only when you squint really hard at the twenty percent similarity and ignore the eighty percent difference.  Take the signing statement issue.  As Lowry, Bradley and Posner note, Obama recently issued a signing statement signaling that he thinks that some provisions of the Omnibus Appropriations Act of 2009 infringe on his presidential powers.  Bush, of course, issued numerous such signing statements.  Does that mean Obama and Bush are clones on the signing statement issue?  Hardly.  All presidents have believed that the Constitution accords them some powers that Congress cannot infringe, but different presidents have had very different ideas about how to define those powers.  Bush’s expansive view of his unilateral authorities that Congress could not touch was rivaled only by Nixon’s.  Every indication we have so far is the Obama’s view is much more constrained. 

Another issue that has attracted much of the Obama’s-no-better-than-Bush rhetoric involves the state secrets privilege, which Obama’s Department of Justice continues to assert in lawsuits in ways that seem hard to distinguish from the Bush administration.  Again, Glenn Greenwald has done a great job exposing this issue, including here and here.  Drilling down into this issue is going to be the subject of a subsequent post, so stay tuned.


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