Obama’s Blank Check

The tone of America’s national security policy has changed, but the substance is similar
In the 2004 Supreme Court decision Hamdi v. Rumsfeld, Justice Sandra Day O’Connor wrote for the plurality: “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” Justice O’Connor’s words marked a turning point in the Bush administration, putting an end to the executive’s unilateral control of American national security policy.
Two years into President Obama’s tenure, however, his administration has come under fire from the left for staying Bush’s course when it comes to national security. These critiques do miss important differences, particularly the fact that President Obama has avoided the sweeping statements of unitary executive power which his predecessor made. But it is nonetheless true that the Obama administration has been defined more by continuity than change in this area of policy.
This continuity has more to do with the experience of the executive in wartime than the president’s personal character or beliefs. While Obama has attempted to emphasize detainee rights and checks and balances on the executive, his administration remains constrained by the political, legal, and decision-making requirements inherent in running the modern national security state.

Continuity of Policy

To say that President Obama has largely followed in the footsteps of President Bush, one must first establish which Bush one is talking about. As Tung Yin, a professor at the Lewis and Clark School of Law, told the HPR, the first-term Bush administration acted with unilateral authority in developing national security measures. But, following Supreme Court decisions in 2004, “public disclosure and public outcry about things like warrantless wiretapping” compelled the Bush administration to permit increased judicial review of national security measures like the enemy combatants held at Guantánamo Bay, Cuba.
Obama has by and large accepted the limits placed on his predecessor, but civil libertarians complain that he has not chosen to impose more rigorous ones. Instead, Obama has failed to close the detention camp at Guantánamo Bay and launched increased drone strikes and targeted assassinations. Assessing what he sees as disappointments, Christian Parenti of The Nation has argued that there is “a tradition of extralegal behavior by the executive during war,” which President Obama has largely continued. Obama’s actions have been a far cry from his assertions on the campaign trail that he would close Guantánamo immediately and definitively reject President Bush’s legacy.

The Consensus-Driven President

Despite the substantial similarities between the policies of Obama and Bush, the presidents do differ in their approach to executive power. As David Harris, a professor at the University of Pittsburgh School of Law, told the HPR, the Supreme Court’s 1952 decision in the Steel Seizure Case outlined a balance of power between the president and Congress during wartime, one that Obama has largely followed. Bush, at least in his first term, did not.
“If the president is exercising his power in areas of foreign policy during wartime, and the Congress has ceded that power to him… then the president’s power is at its greatest point,” Harris explained. “But where Congress and the president both have power, and the Congress has exercised some of it, Congress is clearly a player, and Congressional action can limit what the president does,” he continued. Harris juxtaposed the limitations imposed by the Steel Seizure paradigm with the “basically unlimited” scope of executive power envisioned by the Bush administration. By stepping away from such ambitious claims to executive power, then, Obama has moved away from his predecessor.
Likewise, supporters credit Obama with attempting to introduce some form of consensus-driven politics, based on a system of checks and balances, into the national security decision-making process. Peter Raven-Hansen, a professor at George Washington Law School, told the HPR that while Bush’s main decisions “were made in a small group… and not vetted outside the White House,” the Obama administration “has instituted a broader process in which the Office of Legal Services and legal advisors play a more traditional and broader role in the administration.” Advocates praise such consensus-driven politics for its greater rigor and legalism, as well its ability to expose the president to a more diverse set of views. While this sort of procedural advancement is certainly not the ultimate goal of national security policy, Raven-Hansen praises it as a step in the right direction.
Being the Boss

Yet for all of Obama’s good intentions, Harris noted, “The Obama administration has continued some of the same policies [as Bush].” Harris cited the example of Guantánamo Bay: President Obama pledged to close the facility during his campaign and signed an executive order to that effect, but Guantánamo remains open. Harris claimed that the president’s failure to implement his order resulted from “intense political opposition” to the proposed plan to transfer the detainees to an Illinois prison. Indeed, the assertion that Obama has been constrained more by politics than by legalities is a common one. According to Parenti, “The spin doctors around Obama, most personified by David Axelrod, live in pathological fear of being seen as weak and losing swing voters.”
Nonetheless, the most compelling explanation of Obama’s actions in this area may lie in the inherent nature of the executive, rather than any lack of political courage on Obama’s part. As Yin noted, “The president is the unilateral head of the executive branch, [but] Congress has 535 different masters.” This centralization of power gives the president a major advantage in accessing information and developing policy regarding national security, which no system of checks and balances can fully overcome. Furthermore, Yin pointed out that only “the House and Senate leaders of both parties and heads of the intelligence committees get detailed briefings on classified material, so it’s fairly easy for the president to create conditions in crisis where the president gets his way.” Despite some efforts to adopt a consensus-based approach, then, structural impediments and historical precedents give the executive the prerogative to more or less control national security policy.
Understanding National Security

President Obama has attempted to reform his decision-making process when it comes to national security, but he remains ultimately constrained by the necessity of executive prerogative in wartime. One might not have expected it to be this way. As Harris noted, “The Obama administration is in a different period on the scale of time.” President Obama enjoys the luxury of reflection on the events of 9/11 and the subsequent experiences of fighting the war on terror.
Yet for all these advantages, Obama has been little able to improve on President Bush’s efforts or to alter his national-security policy framework. More than anything else, this is a reflection of the nature of the executive branch. As Harris put it, “There aren’t a lot of good alternatives” to the concentration of power in the executive during wartime.
Peter Bozzo ’12 is a Staff Writer and Henry Shull ’13 is the Business Manager.
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