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. (more…)