Obama and McCain on executive power.

The law, lawyers, and the court.
Sept. 19 2008 1:39 PM

The Modesty Contest

Where Obama and McCain stand on executive power.

John McCain, Barack Obama. Click image to expand.
John McCain and Barack Obama

How far apart are Barack Obama and John McCain on the expansion of executive power—whether or not to shrink down the presidency on steroids that has characterized the Bush administration? What's the evidence that one or the other would pump the other branches of government back up rather than pounding them down?

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

It's an important question that's become ever harder to answer over the last couple of months. Last December, in response to a hugely useful questionnaire in the Boston Globe by Charlie Savage, both candidates seemed resolute about turning aside some of the biggest power grabs of the Bush years. But since then, John McCain has moved closer to the Bush mantra so as not to spook his base, though he still stresses his interest in working with Congress. Barack Obama, on the other hand, has attacked the discredited Bush theories behind the executive-power boomlet, as you'd expect of the candidate of the opposing party. But he also has let pass specific chances to distance himself definitively. From that you can conclude either that taking on sprawling executive power doesn't make for riveting campaign fare, or that, as Jack Balkin has argued at Balkinization, both parties continue to see the attraction of a muscular presidency. Or both.

The evidence that Obama is tacking a bit toward a more powerful presidency comes from his reversal on warrantless wiretapping. This is the July law that approved the National Security Agency's decision to bypass the court set up by the Foreign Intelligence Service Act by permitting eavesdropping on phone calls and e-mails that are in part domestic. FISA was expanded in this fashion based on the Bush administration's argument that the war on terror gives it leeway to brush past Congress and the judiciary at its choosing. The new law for which Obama voted effectively gutted the court and the warrant protections enshrined since 1978 by FISA. Obama's turnaround enraged some civil libertarians, for good reason, and made other liberals worry more broadly that he'd gone squirrelly on them. But the campaign sold Obama's vote as a political necessity: a shield against the standard Republican attack that Democrats are soft on national security.

And meanwhile, McCain was running into the arms of the right. As Glenn Greenwald has pointed out at Salon, back in December, McCain drew a sharp contrast between himself and Bush on wiretapping in answering that questionnaire on executive power in the Boston Globe (at the very least a great historical resource at this point). At the time, McCain said that in some instances, statutes (meaning FISA) "don't apply, such as in the surveillance of overseas communications"—not domestic-to-foreign calls and e-mails. McCain continued, "Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."

But then in late spring, the warrantless-wiretapping bill surfaced, with its bid to let the telecom companies off the hook for having given customer records to the NSA in probable violation of FISA. Andrew McCarthy of the National Review started beating up on McCain after the campaign suggested that McCain didn't think the telecoms deserved full amnesty, and a Washington Post headline asked "For McCain, a Switch on Telecom Amnesty?" So, McCain sent McCarthy one reassuring memo, and when that didn't do the trick, he fired off a second one. By that point, it was hard to recognize the civil-libertarian McCain of the Charlie Savage questionnaire, as McCain blasted "the ACLU and trial lawyers" and said there was no need for further investigation of the NSA, the telecoms, or anyone who'd ever used a wiretap.

There's a political explanation for all this, too, of course—McCain was moving to shore up his base, at presumably little cost to the center. Neither candidate has paid a real price for the congressional tap dance over wiretapping. And on other aspects of executive power, we still have solid-seeming statements that make them each seem un-Bush-like. Here's a roundup from Pro Publica. Here are Obama's answers to the Savage questionnaire, to complement McCain's.

Some of this makes for reassuring reading: McCain pledges never to use a signing statement—the somewhat symbolic but nevertheless crazy-making evidence that the Bush administration was doing its utmost to supersede Congress. McCain also says that if Congress definitively says that a "specific interrogation technique" is off-limits, the president can't approve its use anyway. But McCain also declines to name a single use of executive power by the Bush administration that is unconstitutional or even just "a bad idea." And in May he went on his infamous tear about the federal judiciary, blasting the judges' "common and systematic abuse of our federal courts"—never mind that at this point the majority are Republican appointees. (If anyone was wondering whether McCain would toe the line and appoint archconservative justices in the model of John Roberts and Samuel Alito, as he'd promised, this should have quelled such doubts.)

As for Obama, he has been consistently strong in saying the president can't hold detainees he decides are enemy combatants without charges, and on preserving the right to habeas corpus—the means by which the Guantanamo detainees might actually challenge their enemy combatant status in court someday. The Bush administration has cast all of this as a fight for supremacy between the executive and the courts, so Obama's position would be a major easing of tensions. Obama also told Savage that "the President does not have power under the Constitution to unilaterally authorize military attack in a situation that does not involve stopping an actual or imminent threat to the nation." And he said the president can't ignore Congress on troop deployments, while McCain complained about Congress micromanaging wars. Given how imperial the American presidency has become over the last half-century, Congress isn't good at taking power back for itself. So, Obama looks like he has the legislature's back.

But I'm puzzled about Obama's unwillingness to take a stand against the Bush administration's latest bid to exit with one last burst of executive prerogative-taking: the bill to renew the Authorization of Military Force. As Neal Katyal and Justin Florence pointed out in Slate this week, the AUMF of 2001 has been the main underpinning of the worst Bush excesses. And the new law doesn't just restate congressional support for fighting a war against al-Qaida and Co. It also "reaffirms" what would really be a new power: that "the President is authorized to detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities."

Katyal and Florence explained why this expands the scope of the 2001 AUMF, allowing the president to do what no court has ruled he can: capture an alleged enemy combatant on American soil and whisk him away, without charges, until the end of a war that has no clear end. Opposing this should be a no-brainer for Obama, but when I called his advisers, I got only a hands-off, "we don't want to get into it" response. The campaign said it was trying to stay on message. For sure there is better political hay for a Democrat to make this week. And the McCain campaign didn't call me back at all. But it's a reminder that candidates don't win by talking boldly about the presidency as a self-effacing institution. Presidential modesty can be a hard virtue to sell.

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