Bush and Obama Fight Terrorists outside Justice Jackson's Twilight Zone
Radsan, Afsheen John, Constitutional Commentary
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.
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. …