Last Word (from Me) on Bush-Obama Continuity

By Jack Goldsmith
Sunday, November 11, 2012, 3:46 PM

While I am sure we differ in emphasis and details, I agree with the thrust of Trevor’s latest post.  As I argued in my last two books, the early Bush administration approach to presidential power was, in reality and especially in rhetoric, unprecedented in American wartime history and self-defeating.  I also agree – and again, made the point in chapter 2 of Power and Constraint – that the Obama administration’s basic philosophical approach to executive power, whatever its motivations, was better designed to secure the legitimacy of counterterrorism policies than the early Bush approach.  And I too have worried that some of the rhetoric of the Romney campaign portended a return to early Bush era mistakes.  As I said in April:

Although there is legitimate room for Romney to attack Obama’s counterterrorism ­stances, he runs the danger of going too far. Romney has gone beyond defending Guantanamo and military commissions to suggest that detainees at Gitmo should not have any constitutional rights — a suggestion that flies in the face of a 2008 Supreme Court ruling ( Boumediene v. Bush ) that Guantanamo detainees have at least the constitutional right to habeas corpus, and maybe more.

Romney and his aides also refuse to rule out the possibility that as president he would deploy waterboarding as an interrogation technique, a position hard to square with two congressional laws and a 2006 Supreme Court ruling ( Hamdan v. Rumsfeld ) that together effectively ban the practice.

The perception that the president is constrained by law is vital to the success of counterterrorism policies in courts and cooperation on counterterrorism issues with allies. The opposite perception harmed President George W. Bush in both contexts. Obama has had more success in these contexts despite continuing most of the late Bush-era policies. Obama succeeded in part because he won office having campaigned on restraint in counterterrorism policy and in part because, once in office, his administration acknowledged the limits of presidential authority and the importance of adhering to law in executive orders, litigation positions, speeches and other acts.

So I very much agree with Trevor that the reason why counterterrorism policies under Obama might have become more legitimate and entrenched than in a Romney administration is not only (a) the “Nixon going to China” phenomenon, and (b) the party-based support of Democrats who might otherwise oppose the policies.  If we take comparative campaign rhetoric seriously, there is a third reason, (c): the Obama administration, compared to a possible Romney administration, likely would have taken more seriously “the limits of presidential authority and the importance of adhering to law in executive orders, litigation positions, speeches and other acts.”  This is not a claim about perfect Obama-era fealty to the limits of executive power, obviously – just a comparative claim based on the statements and actions of the two campaigns.

Even acknowledging this important point, however, the underlying paradox remains.  Whatever his philosophy, whatever his motivations, however seriously he is committed to the rule of law, whatever small changes he has made, President Obama has continued the substance of almost all of the  counterterrorism policies of the late Bush era.  (This remains my belief; I am not claiming that Trevor agrees.)  And for the three reasons stated in the previous paragraph, these policies will now be more entrenched and legitimated than they would have been had Romney won the election.