Obama: Preventive detention yes, "unitary executive" no

Jack Goldsmith, the former head of Bush's Office of Legal Counsel who invalidated the early torture memos, has written an indispensable article about the continuities and differences between Obama's emerging antiterror policies and those of Bush's second term.

While concluding that "the main difference between the Obama and Bush administrations concerns not the substance of terrorism policy, but rather its packaging," Goldsmith does not dismiss this difference as sleight-of-hand, but holds it up as an essential difference that protects Constitutional limits on Presidential power while paradoxically strengthening that power by obtaining the consent of the governed. There is one aspect of Goldsmith's contrast between Bush's "unitary executive" and Obama's consent-seeking that I'd like to look at more closely.

Goldsmith portrays the "packaging" difference as follows:

The Bush White House had a principled commitment to expanding presidential power that predated 9/11. This commitment led it early on to act unilaterally on military commissions, detention, and surveillance rather than seeking political and legal support from Congress, and to oppose judicial review of these and other wartime policies. The public concerns about presidential power induced by these actions were exacerbated by the administration's expansive rhetoric. Department of Justice opinions and presidential signing statements, for example, made broad claims for an untouchable Commander-in-Chief power that were unnecessary to the tasks at hand. Just as damaging was the administration's frequently expressed desire to expand executive power in order, as Vice President Cheney put it, "to leave the presidency stronger than we found it"...

The Bush administration's...rhetorical strategy led many people to suspect that the president was acting to increase his own power rather than to keep the country safe. The strategy's main effect was to distort the legitimacy of many Bush wartime practices that had been uncontroversial in previous wars....

The Obama administration...seems to have embraced, probably self-consciously, the tenets of democratic leadership that Roosevelt and Lincoln used to enhance presidential trust, and thus presidential effectiveness, during their wars. Like Roosevelt and to some degree Lincoln, President Obama has chosen a bipartisan national security team to help convey that his national security actions are in the public interest and not a partisan one. Also like our two greatest war presidents, President Obama seems committed to genuine consultation with Congress. If he gets Congress fully on board for his terrorism program, he will spread responsibility for the policies and help convince the public and the courts that the threat is real and the steps to counterterrorism necessary. President Obama has also promised a less secretive executive branch than President Bush. There is little evidence yet that his administration has done this, but if it does, it will reduce the mistakes that excessive secrecy brings and produce a more responsible and prudent government.

Goldsmith's analysis is subtle. He oscillates between sardonic references to Obama placing Bush policies in "prettier wrapping" and assertions that the symbolic and procedural changes are in effect the most important "substance" of all. What I want to look at more closely is the contrast Goldsmith sketches between the Bush Administration's assertion of an extreme "unitary executive" theory and Obama's (so far rhetorical) embrace of restraint of the executive by Congress and the courts.

One of the most sweeping of Bush's assertions of executive authority is in the August 1, 2002 Bybee memo authorizing "enhanced interrogation techniques" (i.e., torture). Section 5 addresses "The President's Commander in Chief Power" and considers whether the EIT violate Section 2340A of Title 18 of the United States Code which makes it a criminal offense for any person outside the U.S. to commit or attempt to commit torture. The memo's answer: any mode of interrogation authorized by the President cannot violate the statute, because the President in his Commander in Chief capacity is not bound by the statute -- or any other:

In light of the President's complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President's ultimate authority in these areas...In order to respect the president's inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority. As our Office has consistently held during this Administration and previous Administrations, Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander in Chief to control the conduct of operations during a war.

In other words, the President in conduct of war can do whatever he likes to whomever he likes.

Compare Obama's treatment in his May 20 national security speech of the fraught question of preventive detention. In the speech, Obama addressed "the question of detainees at Guantanamo who cannot be prosecuted" -- often because evidence against them was obtained by torture - "yet who pose a clear danger to the American people." He has appalled civil liberties advocates by suggesting that his Administration may seek to hold such people as prisoners of war -- albeit in a war without apparent end. Here is how he framed his prospective authority to do so:

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture - like other prisoners of war - must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees - not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Here Obama embraces a controversial Bush practice - preventive detention - but abjures the sole authority to executive that practice. He is asserting an extraordinary authority yet diffusing it among the three branches. He implicitly acknowledges the danger inherent in granting this extension of government authority by proposing that it be checked and balanced.

Is it possible to provide adequate checks and balances to a sweeping power like preventive detention? I would still say no. A trial is the means we have developed over centuries to accord due process to those deemed a danger to society. It seems to me that there is a kind of infinite regress in creating procedures -- "due processes" -- that are supposed to preclude the detainee's right to due process. We are substituting a weak check to governmental power for a strong one.

It should be noted that Goldsmith, who effectively rescinded the President's authority to torture and assertion of the extreme "unitary executive" theory, is perhaps the most influential advocate for preventive detention. His February 2009 paper, "Long-term Terrorist Detention and Our National Security Court" lays out in detail the argument that Obama sketched in brief this week -- that the right to "preventive detention" is grounded in the authority to hold prisoners of war, and that the ambiguities of holding people who were not part of a defined army or of a conflict that will have a defined end must be subject to judicial review.

The chief danger of the Bush presidency was its assertion of unlimited executive power. The "packaging" differences that Goldsmith highlights rescind that assumption of absolutism. That's not to say that Obama is right to seek authority to continue policies like preventive detention. But the key word here is "seek." Obama may seek, and obtain, a bad law. But he won't act lawlessly.