This post is cross-posted over at my place.
Over at Slate, Emily Bazelon has a good overview of Obama and McCain’s respective positions on executive power. The short story is that although both senators have promised to step back from the executive overreaches of Bush’s presidency, neither has been completely willing to completely go back to the pre-Bush status quo. Senator McCain has promised to refrain from using signing statements if elected president, but has neglected to outline any aspect of Bush’s “approach” that he actually disagrees with. Senator Obama, on the other hand, 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,” but has voted for greater executive power when the opportunity to act has arisen (most notably the FISA bill passed earlier this year). Now – with the bill to reauthorize the 2002 AUMF (Authorization for Use of Military Force Against Iraq) – Obama has another opportunity to show his willingness to challenge the Bush administration’s unacceptably broad view of executive power. But, as Bazelon notes, for whatever reason, Obama won’t even touch it:
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 Florencepointed 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.
I’m pretty certain that when the reauthorization bill comes up for a vote, Senator Obama will vote to reauthorize it, even with the “president can torture whoever the hell s/he wants to” language included. Which frankly – if it does happen – shouldn’t really come as a surprise to anyone. Even the most reform-minded presidential candidate (much less president) would be hesistant to relinquish any authority to Congress, not out of any particularly nefarious motives, but simply because as a general rule, actors within an institution are reluctant to give up any powers or advantages they’ve gained within said institution – this goes as much for presidents as it does anyone else. And Barack Obama, as someone who is fairly invested in the status quo, probably isn’t going to be too keen on giving up too many presidential powers, regardless of what he has said on the stump. As I wrote this summer:
It’s terribly unrealistic to expect any executive to willingly relinquish new powers; and that’s precisely the reason why we have a legislative branch. It’s supposed to act as a check on the executive’s inevitable attempts to accumulate power.
Almost every single president since Washington has taken steps to increase his power as an executive, and it’s Congress’ job to act as a check to that expansionary impulse. The problem, of course, is that Congress hasn’t been doing it’s fucking job, and as such, President Bush (and President Clinton before him) has been able to get away with these egregious expansions of executive authority. It’s deeply disappointing to know that a President Obama would probably – at the very least – support the status quo, but we should take that as a given. For those of us interested in curbing executive power, we ought to focus our attention on helping Congress (regardless of the party affiliation) grow a spine, a large set of non-gendered genital organs of fortitude, and a sense of institutional parochialism.
– Jamelle
