Bush and Obama fight terrorists outside Justice Jackson's twilight zone.

• Author: Radsan, Afsheen John
• Position: Presidential Power in the Obama Administration: Early Reflections

George W. Bush and Barack H. Obama have used presidential powers in different ways. That is easy to say because they have occupied the Oval Office at different times. Since the fourth dimension of time affects the three dimensions of space, the signing of the same executive order is not the same act. Beyond that, parsing specific differences between Presidents is difficult.

To explain the differences between Bush and Obama, one might use metaphor, formulas, facts, or some combination. One metaphor is to compare American Presidents to Odysseus from Greek legend. One formula comes from Justice Jackson's famous concurrence in the Steel Seizure Case. And one set of facts relates to programs that involve the Central Intelligence Agency.

Traveling from the abstract to the granular, my essay tries to show that the gap in national security practices between Bush's second year in office and his last year is far wider than the gap between Bush's last year in office and Obama's first year. (The shift between Bush I and Bush II is thus more radical than the shift between Bush II and Obama I.) As to the use of Predator strikes, irregular renditions, military commissions, the state-secrets privilege, and a label from armed conflict that allows long-term detention of suspected terrorists, there has been surprising continuity between presidential administrations. Obama has changed the packaging of aggressive programs more than their contents.

THE METAPHOR

Homer can help explain Bush and Obama. In epic poetry, Homer presented a strategy for dealing with beasts that caused sailors to crash into rocks by the lure of sweet song. (1) Odysseus, following Circe's advice, ordered his crew to plug their ears with wax and to tie him to the mast of their ship. By limiting themselves in a minor way, by giving up some power, they hoped to prevent themselves from being captured by Sirens. The limitations, so they believed, led to their greater good. Odysseus, rather than face Sirens on his own, sought assistance from his crew. There was safety in numbers.

To apply Homer, one might compare how willing President Bush was and how willing President Obama is to ask Congress, the other elected branch, to limit presidential power. To what extent do the two Presidents retreat from a full assertion of inherent powers? No matter their political parties, all Presidents seem to agree that there are some executive powers which do not permit intrusion from Congress. Presidents Bush and Obama, in this regard, have something in common. Congress, they must be sure, cannot legislate away the President's powers to pardon offenders or to veto legislation. Those are two easy examples.

Most observers agree that the core of presidential power cannot be molested. Yet profound differences emerge when general statements are applied at a more specific level. For each President, one might ask how large that impenetrable core of executive power really is: John Yoo, a former official in the Bush Justice Department, offered one description. As for the CIA's aggressive interrogations, Yoo said:

Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States. (2) But John Yoo's description is not within the mainstream. (3) Perhaps he and President Bush pushed things too far. President Obama, for now, is not so pushy. He seems to see a smaller core to presidential power.

Whether presidents agree with Professor Yoo or with his critics, they do not always operate in a single mode. Categories are purer in theory than in fact. Sometimes differences on executive power blur when constitutional principles are adjusted to circumstances beneath the clouds. The reality on the ground, so to speak, has affected two presidents during their journeys in office.

THE BUSH JOURNEY

During two terms in office, President Bush was not always extreme in his national security practices. On programs that related to the CIA, Bush showed two different faces. His expression in the first term was harsher than in the second.

Right after the 9/11 attacks, President Bush turned to Congress for some support. Congress passed an Authorization for Use of Military Force that encouraged the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." (4) Later, President Bush claimed the AUMF justified several actions in the fight against terrorists.

First, the Bush Administration said the AUMF allowed President Bush to detain an American citizen captured in Afghanistan just after 9/11. A plurality of the court agreed with him in Hamdi v. Rumsfeld. (5) Second, Bush's advocates said the AUMF authorized the military commissions President Bush established by executive order in Guantanamo. The Supreme Court disagreed in Hamdan v. Rumsfeld. (6) Third, the Bush Administration said the AUMF justified the terrorist surveillance program, that is, the monitoring of communications without seeking warrants through the Foreign Intelligence Surveillance Act. (7) This controversy did not reach the Supreme Court. Instead, the TSP controversy was settled through statutory amendments that, among other things, immunized telecommunications companies that assisted government surveillance. (8)

Soon after 9/11, Congress also passed the Patriot Act (9) as a sort of presidential wish list. As a result, it lowered the wall to cooperation between law enforcement and intelligence gathering. Congress allowed financial and other information to be collected by national security letters--basically administrative subpoenas. And it approved sneak and peek warrants.

Many Bush officials said robust executive power was necessary to fight terrorists. Their common goal was power, but they disagreed on how to obtain that power as 9/11 faded into the country's past. One group believed President Bush should rely on his Article II powers, alone, flexing the Commander-in-Chief Clause among other provisions. Another group believed President Bush should seek more congressional support. Mindful of Justice Jackson's famous categories from the Steel Seizure Case, this group reminded the extremists that the President's power is at its maximum when Article II powers are combined with everything Congress can delegate under Article I. For them, this was better politics as much as it was a better legal framework. They tried to shift the question from whether the President had the power to do something to whether the Federal Government did. Not all officials, of course, neatly fell into two groups. But for the sake of illustration, I propose David Addington as a representative for the first group and Jack Goldsmith for the second group.

Addington was Vice President Cheney's legal adviser, and later became Cheney's chief of staff. Addington's tenure with the Bush Administration is often attributed to extending executive power to unprecedented levels. (10) Under Addington, the Bush Administration was hostile to Congress and largely unconcerned with the Supreme Court. (11) Addington himself was quoted as saying, "[w]e're going to push and push and push until some larger force makes us stop." (12)

Goldsmith was the head of the Justice Department's Office of Legal Counsel for part of 2004. Opposed to Addington, Goldsmith advocated congressional approval of controversial executive actions. He called for Congress's "explicit help" on detentions and military commissions. (13) Goldsmith rooted his beliefs in Justice Jackson's articulation of executive power being "at its maximum" when the President acts "pursuant to an express or implied authorization of Congress." (14) Goldsmith saw congressional approval as necessary for placing counterterrorism policies "on a solid legal foundation." (15)

From 2002 until 2006, the Bush Administration did not seek much from Congress or many adjustments in statutes. Letting things be, the Administration did not get close to a framework statute to cover the details in the fight against terrorists: detention, interrogation, transfers, and trials. For a while, Addington prevailed.

Once the country's mood changed, the courts entered the breach. Hamdan, concerning the legality of military commissions at Guantanamo, was a clear setback for Addington and a vindication for Goldsmith. The Supreme Court held that commissions, established on nothing more than the President's November 13, 2001 order, violated the Uniform Code of Military Justice and, by the UCMJ's link to the laws of armed conflict, also violated Common Article 3 of the Geneva Conventions. (16) It took the Hamdan setback in 2006 to cause the White House to go back to Congress with hat in hand. As a result, the Military Commissions Act was passed in October 2006. (17) Curiously, Obama, as a Senator, voted against this grant of power to President Bush. (18) The MCA was a partial framework statute, covering military trials and interrogation standards. Goldsmith, gone from the government, prevailed. The War Crimes statute was retroactively amended to only include "grave breaches" of Common Article 3 of the Geneva Conventions. And the President, in a CIA exception, was given the leeway to approve interrogation tactics below torture but beyond what was permitted to the Department of Defense and the Federal Bureau of Investigation. These tactics were outlined in Executive Order 13,440, issued on July 20, 2007 as well as the classified supplement to the executive order. (19)

After that, an impatient Bush counted his final days in office as the country looked forward to the...