This post was written by Curtis A. Bradley & Eric A. Posner
Now that the critics of the Bush administration’s theories of executive power hold office in the Obama administration, one might have expected a U-turn in the executive’s position on the law. But rather than repudiating Bush’s theories of executive power, the Obama administration has embraced them in substance. At the same time, it has used symbolic gestures and changes in labeling to mask the continuity.
President Obama announced that he would close Guantanamo but not that he would close other detention centers around the world, such as those in Iraq and Afghanistan. In doing so, he followed a political consensus, shared by Bush and McCain, that Guantanamo had become a public relations problem. Shortly after making the announcement about Guantanamo, the Obama administration endorsed the Bush administration’s argument that U.S. courts cannot review a similar detention facility at the Bagram Air Base in Afghanistan that is governed by less formalized processes and currently houses substantially more prisoners.
Meanwhile, the Obama administration has also escalated the military campaign in Afghanistan and Pakistan, including the use of Predator drone attacks, a course of action that will mean that more Taliban and Al Qaeda members will be killed rather than detained. This is one way to solve the problem of detention, but it hardly signifies a radical change of principle.
About a week ago, Obama’s Justice Department announced with much fanfare that it was dropping its reliance on the term “enemy combatant.” At the same time, the administration made clear that it was still claiming the authority to militarily detain Taliban fighters and members of Al Qaeda, as well as their supporters, under a legal standard similar to the one that had been used by the Bush administration. The main change was simply one of labeling.
So the Obama administration claims the right to kill and detain suspected terrorists, just as the Bush administration did. The real world effect is that people will continue to be killed and detained without criminal process. It will make no difference to them that now, like Prince, they will be referred to as the people “formerly known as” enemy combatants.
The gap between symbol and substance is also evident in recent litigation challenging the Bush administration’s warrantless surveillance and rendition programs. Even though Candidate Obama criticized these activities as unlawful, the Obama administration now endorses the Bush administration’s argument that the “state secrets privilege” bars lawsuits challenging these programs. In the words of the ACLU, “Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue.”
President Obama recently issued a memorandum that was interpreted as a repudiation of Bush’s practice of using signing statements to challenge statutes that violate the president’s powers. In fact, the memo did nothing more than say that Obama would issue more carefully written signing statements than Bush did, and that executive agencies should not violate statutes based on prior statements (presumably, including some signing statements drafted by Clinton-era lawyers who now work for Obama) without approval from the Attorney General.
This memorandum appears to have been a preemptive measure to clear the way for what would otherwise look like a continuation of the Bush practice. A few days after announcing the memorandum, President Obama issued his first signing statement. Included with his signature to the Omnibus Appropriations Act of 2009, the statement challenged numerous statutory provisions (the precise number not identified) for violating the president’s constitutional authority “in the area of foreign relations,” his authority as “Commander in Chief,” his “authority to direct the heads of executive departments to supervise, control, and correct employees’ communications,” his power to execute the laws, and his power to recommend measures to Congress. Despite the disagreement Neil Kinkopf has expressed here, and here at Executive Watch, the laundry list of executive powers comes straight from the Bush administration, which in turn had received it from the Clinton administration.
It was not long ago that the signing statement was a red flag for the media and the establishment. The American Bar Association huffed that signing statements violate “the rule of law and our constitutional system of separation of powers,” and called on presidents to renounce the practice. The reaction today is more muted.
Even on the sensitive issue of interrogation policy, there is less of a change here than meets the eye. President Obama has signed an executive order banning coercive interrogation techniques, but the order applies only to the interrogation of persons detained in an “armed conflict,” and it is unclear to what extent that phrase covers counter-terrorism operations. Moreover, Obama officials have correctly noted that the President could authorize deviations from the order if he concluded that such deviations were necessary in order to obtain valuable information.
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. Neither verbal gymnastics nor partisan hyperbole should obscure this fact.