Obama draft

Barack Obama

Barack Obama is outspoken in criticizing how President Bush has aggregated and used executive power, but inconsistent when he discusses what he would do with that power once in the Oval Office. In instances where Bush’s policies have infringed on civil liberties, Obama pledges to scale back power with greater transparency and involvement by the other branches. But he reserves the right for a president to exercise a strong hand in matters of national security. He criticizes Bush’s constitutional record less for the fact that he expanded executive power, and more for why and how this expansion occurred.

He often references his earlier career as a University of Chicago constitutional law professor as a way of emphasizing his appreciation of constitutional checks-and-balances and protections of civil liberties, but he doesn’t have much of a voting record on these questions.

Views of executive power

Obama is explicit in condemning what he sees as Bush’s power grab. In a key foreign policy speech at DePaul University last October 2nd, he told the crowd that the “government in this country is not based on the whims of one person, the government is of the people, by the people and for the people.” On March 31st in Lancaster, PA he described the expansion of executive power as an issue of major concern and promised to actively take steps to scale it back: “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”

In spite of this harsh language, Obama does not categorically reject the need for a strong presidency. When crititicizing Bush, he tends to assert the need for strong intelligence gathering mechanisms—tools that would fall within the executive branch: “We face real threats. Any President needs the latitude to confront them swiftly and surely,” he told the crowd at DePaul in October. Bush’s great sin was not that he used an overly strong hand to protect the nation, but rather that he used it for partisan motives and with scant attention to civil liberties. To the crowd in Chicago last October, he asserted that

we’ve paid a heavy price for having a President whose priority is expanding his own power. The Constitution is treated like a nuisance. Matters of war and peace are used as political tools to bludgeon the other side… I’ll turn the page on the imperial presidency that treats national security as a partisan issue – not an American issue.

In a foreign policy speech at the Woodrow Wilson Center at Princeton University in August 2007, Obama criticized Bush’s disinterest or inability to find a balance between civil liberties and national security, and promised to do better:

I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wiretapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war; no more ignoring the law when it inconvenient. That is not who we are, and it’s not what is necessary to defeat the terrorists.

He makes the case that the worst excesses of the Bush Administration happened behind closed doors—executive orders that didn’t involve congressional oversight. Responding to an audience question in the speech last month in Lancaster, he defended his 2006 vote to re-authorize the Patriot Act by asserting that constitutional abuses happened through executive orders rather than misguided legislation. In other words, Congress can only do so much when the President doesn’t submit to oversight.

The Woodrow Wilson Center speech illustrates how Obama asserts both national security and civil liberty goals simultaneously and in the context of one another. Though his speeches tend to be thin on detailed prescriptions for how he would balance civil liberties and national security, he points to transparency and oversight as critical tools. Bush’s constitutional abuses stem from his administration’s secrecy and dishonesty, and these tendencies have made our nation more vulnerable. He made this point at DePaul:

We get subjected to endless spin to keep our troops at war, but we don’t get to see the flag-draped coffins of our heroes coming home. We get secret task forces, secret budgeting, slanted intelligence, and the shameful smearing of people who speak out against the President’s policies… We don’t need another President who thinks big but doesn’t feel the need to tell the American people what they think. We don’t need another President who shuts the door on the American people when they make policy.

Greater transparency, he argues, is the best and only way to balance civil liberties and the expansion of executive branch functions that are necessary in the age of terrorism. He pledges to “turn the page on a growing empire of classified information, and restore the balance we’ve lost between the necessarily secret and the necessity of openness in a democratic society… We’ll protect sources and methods, but we won’t use sources and methods as pretexts to hide the truth” (DePaul, October 2, 2007). He recognizes that transparency will involve scaling back some of the powers he would inherit, but nonetheless asserts his commitment to “a new era of openness.”

[W]hen I’m president, one of the first things I’m going to do is call in my attorney general and say to him or her, “I want you to review every executive order that’s been issued by George Bush, whether it relates to warrantless wiretaps or detaining people or reading e-mails or whatever it is, I want you to go through every single one of them and if they are unconstitutional, if they’re encroaching on civil liberties unnecessarily, we are going to overturn them.

Checks and balances

A more transparent executive branch would revive the other branches, Obama argues. He pledges to submit his office to greater judicial and legislative oversight—but holds that there are constitutional limitations to that oversight.

Though he doesn’t discuss judicial review often, when he does he states that courts must play a stronger hand in reining in executive power and protecting civil liberties. At a MTV/MySpace forum in October 2007, he called for “a Supreme Court that is not just giving the president a blank check for whatever executive power grab he or she is engaging in.” The courts must also play a hand in detainee prosecutions and ensuring the appropriateness of domestic surveillance.

I have faith in America’s courts, and I have faith in our JAGs. As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists… The FISA Court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary. (Woodrow Wilson Center, August 2007)

He believes Congress should have a greater role in foreign policy than that afforded during the Bush years. He promises as president he would hold regular meetings with Congressional leaders from both parties before taking military actions. In the DePaul speech he promised “a standing, bipartisan Consultative Group of congressional leaders on national security. I will meet with this Consultative Group every month, and consult with them before taking major military action.”

But as he charges Bush with a power grab, he also reserves blame for the other branches—especially Congress—for letting it happen: “Congress rubber-stamped the rush to war, giving the president the broad and open-ended authority he uses to this day. With that vote, Congress became co-author of a catastrophic war,” he told the crowd gathered at the Woodrow Wilson Center in August. His criticism of the Congress that authorized the war—one in which he was not yet serving—is clearly a campaign strategy against opponents who both voted to authorize the Iraq war.

The American people weren’t just failed by a president, they were failed by much of Washington, by media which too often reported spin instead of facts, by a foreign policy elite that largely boarded the bandwagon for war, and most of all by the majority of a Congress, a co-equal branch of government, that voted to give the president the open-ended authority to wage war that he uses to this day. So let’s be clear. Without that vote, there would be no war.

Though he says Congress dropped the ball, he also asserts presidential authority in conducting foreign affairs. Defending his decision to provide the president continued funding for further Iraq operations, he told the Chicago Council on Global Affairs in November 2006, “Ultimately… the president is the commander in chief. The only way to force the president’s hand would be in some ways to restrict funding for the war effort in Iraq. That is not something that I am prepared to do.”

He echoed this view on the limited ability of Congress to rein in the President in the foreign policy speech at DePaul. He suggests that executive power will naturally expand, and the only check on that expansion is a muscular and assertive Congress.

After Vietnam, Congress swore it would never again be duped into war, and even wrote a new law—the War Powers Act—to ensure it would not repeat its mistakes. But no law can force a Congress to stand up to the President. No law can make Senators read the intelligence that showed the President was overstating the case for war. No law can give Congress a backbone if it refuses to stand up as the co-equal branch the Constitution made it.

His admission that executive power is naturally expansive is no less remarkable because he promises he would accept and welcome restraints imposed by Congress. What if he disagreed with those restraints? This critical issue remains unaddressed.

Executing the war on terror

Though he regularly calls for multilateralism and diplomacy, Obama doesn’t reject unilateralism in principle. “We must always reserve the right to strike unilaterally at terrorists wherever they may exist,” he told the Chicago Council on Global Affiars in November 2006. He dismisses the neonconservative idea of promoting democracy through regional occupation: in the Woodrow Wilson speech, he described the decision to invade Iraq as a reflection of a “rigid 20th century ideology that insisted that the 21st century’s stateless terrorism could be defeated through the invasion and occupation of a state.” He does believe, however, that America and its allies must have the authority to cross borders in the war on terror.

In the same speech, he raised some eyebrows when he pledged to move troops from Iraq to Pakistan to pursue Bin Laden. His critics saw the speech as both dangerously naïve and possibly even masking a hawkish agenda.

Obama has unambivalently pledged to close Guatanamo and cease the practice of torture and extraordinary rendition. He describes these strategies as both morally indefensible and a clear demonstration of excessive executive power. But he does call for broad counter-insurgency capabilities—with clear limits to those capabilities: “I will not hesitate to use military force to take out terrorists who pose a direct threat to America, and this requires a broader set of capabilities, as outlined in the Army and Marine Corps’ new counter-insurgency manual” (Woodrow Wilson Center, August 2007).

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