Obama embraces the Bush/Cheney unitary executive

Obama embraces the Bush/Cheney unitary executive


For me, it was the most compelling argument to vote for Barack Obama – We need to elect a Democrat to “undo the damage” of the Bush administration.

Although I agreed with the diagnosis, I could not concur with the treatment. The toxic side effects of Single Party Rule presented a greater risk than the potential benefit of curing the Bush/Cheney unitary executive disease. In particular, the prospect of the new President inheriting the expanded Bush/Cheney presidential power while his party held even larger majorities than enjoyed by George W Bush and the Republicans was particularly frightening. Those fears were confirmed last week, when Obama steamrolled a very bad stimulus bill over a neutered Republican party, handing future generations more debt and putting the economic future of the country at risk.

That said, I expected to enjoy a couple of civil liberty consolation prizes with the Obama victory. First and foremost, balance would be maintained in judicial appointments and on the Supreme Court, and second – Obama would indeed roll back some of the worst offenses of the Bush administration. While I still have high hopes for the first consolation prize, early indications are not promising for the second. Not promising at all.

I know it has only been a month, but Obama works fast. It is not too early to checkpoint how President Obama is progressing on “undoing the damage” of the Bush/Cheney Imperial Presidency. The most egregious offenses of the Bush/Cheney administration fall under the umbrella of expanding executive branch power at the expense of the legislative and judicial branches, with a commensurate erosion of constitutional protections. There are some positives. The executive order to close Guantanamo in a year or so is great news. The executive order on torture sounded great, as long as you ignore the loopholes. But on balance – So far… all is not so good.

The Obama administration supports Bush era invocation of state secrecy to protect rendition and torture.

Anthony Romero – ACLU:
“After the British High Court ruled that evidence of British resident Binyam Mohamed’s extraordinary rendition and torture at Guantánamo Bay must remain secret because of threats made by the Bush administration to halt intelligence sharing, the Obama administration told the BBC today in a written statement: “The United States thanks the UK government for its continued commitment to protect sensitive national security information and preserve the long-standing intelligence sharing relationship that enables both countries to protect their citizens.” The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union: “Hope is flickering. The Obama administration’s position is not change. It is more of the same. This represents a complete turn-around and undermining of the restoration of the rule of law.

The Obama administration supports Bush era state secrecy claims to deny torture victims their day in court.

Glen Greenwald – Salon:
“What makes this particularly appalling and inexcusable is that Senate Democrats had long vehemently opposed the use of the “state secrets” privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope. Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration’s rendition and torture programs — even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief… What this is clearly about is shielding the U.S. Government and Bush officials from any accountability. Worse, by keeping Bush’s secrecy architecture in place, it ensures that any future President — Obama or any other — can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.

The Obama administration supports Bush era state secrecy claims to protect executive orders for illegal wiretapping and domestic surveillance.

Bob Egelko – San Francisco Chronicle:
“For the second time this week, the Obama administration has gone to court in San Francisco to argue for secrecy in defending a terrorism policy crafted under George W. Bush – in this case, wiretapping that President Obama denounced as a candidate… The dispute involves Walker’s Jan. 5 order to allow plaintiffs who say the government illegally wiretapped their phones to read a classified surveillance document that could confirm the assertion and avoid dismissal of their suit. Lawyers for the Obama administration say the judge’s decision “presents a clear-cut conflict between the court and the executive branch.”

Out of fairness, I should point out that this last should not be a surprise. It is completely consistent with the July, 2008 version of Barack Obama who voted against the rule of law and in support of immunity for the Telecom companies that cooperated with illegal government wiretap requests. OTOH it is a complete flip-flop from the January 2008 version of Barack Obama who promised to support a filibuster to prevent granting immunity to Telecom companies.

The Obama administration opposes torture, but not all the time.

Greg Sargent – the Plum Line:
“As I noted here yesterday, human rights advocates think that the executive order outlawing torture that President Obama signed yesterday preserves some wiggle room… Obama very strongly denounced torture yesterday as he signed the order outlawing it. But it’s nonetheless hard to avoid the conclusion that the administration does in fact want to preserve some kind of flexibility here, for reasons that are not yet entirely clear, at least to me.”

The Obama administration continues Bush era faith based initiatives undermining the principle of Separation of Church and State.

New York Times Editorial:
“…there was reassuring language about maintaining the separation of church and state in Mr. Obama’s remarks at the National Prayer Breakfast preceding the issuance of his order, and in the order itself. But it would have been a lot more reassuring if the directive had actually revoked Mr. Bush’s 2002 executive order authorizing religious-oriented recipients of federal funding to hire and fire on religious grounds.We suspect that Mr. Obama was not particularly proud of this omission. He chose to sign his order away from the view of television cameras or an audience. Joshua DuBois, the Pentecostal minister selected by Mr. Obama to lead his initiative, says the president is “committed to nondiscrimination,” and that the executive order “provides a process” for case-by-case review to decide if grants to faith-based organizations are “consistent with law.” What process? The executive order says only that White House officials “may” seek Justice Department guidance if questions arise about particular grants. Discrimination by faith-based grantees should be barred.The case-by-case review seems destined to confuse as much as enlighten. And it is hardly the clear commitment to proper employment practices Mr. Obama voiced as a candidate, and the Constitution requires.

White House Political Office, Politicizing the White House Counsel, Executive Privilege – The more things change…

Other early items where the Obama administration appears to moving closer to the style and substance of the previous administration include: Obama continues the much reviled White House Political Office – former home of Karl Rove; Obama appointed a political hack to the office of the White House Counsel, further opening the administration to comparisons with the Bush/Rove White House and charges of politicizing the office; – and – as long as we are on the topic of Karl Rove; The Obama administration will apparently not challenge the constitutionally questionable Bush administration claims of “executive privilege” shielding Karl Rove from testimony before the legislature in the matter of U.S. Attorney General firings

There are more than a few liberals who have not hesitated to to call BS, most notably Glen Greenwald, as he takes to task those whose loyalty is not to principle but to a personality:

“During the 2008 election, Obama co-opted huge portions of the Left and its infrastructure so that their allegiance became devoted to him and not to any ideas. Many online political and “news” outlets — including some liberal political blogs — discovered that the most reliable way to massively increase traffic was to capitalize on the pro-Obama fervor by turning themselves into pro-Obama cheerleading squads…. on one issue after the next, one can vividly observe the harm that comes from a political faction being beholden to a leader rather than to any actual ideas or political principles.”

Greenwald’s analysis is instructive. It explains why so many on the left greet Obama’s support and active defense of the Bush/Cheney model of the unitary executive with a yawn. It is not the principle of checks, balances and constitutional protections that inform their view of the world. For some on the left, it is about blind loyalty to a leader and a party. From their perspective, the Bush/Cheney model of executive power is not a problem if Obama is in the White House. Apparently, with the ring of power in Barack Obama’s benevolent hands, the Bush/Cheney executive power will only be used for good. So – just put your trust in Barack – not in the rule of law – not in the Constitution – but in the man. These Obama supporters resemble nothing so much as the right-wing apologists for Bush administration excesses.

Greenwald says it best:

“What we need far more than a benevolent and magnanimous President is a re-assertion of Congressional authority as a check on executive power. Even if Obama decided unilaterally to refrain from exercising some of the powers which the Bush administration seized, that would be a woefully insufficient check against future abuse, since it would mean that these liberties would be preserved only when a benevolent ruler occupies the White House (and, then, only when the benevolent occupant decides not to use the power). Acts of Congress — along with meaningful, enforced oversight of the President — are indispensable for preventing these abuses. And that’s true whether or not one believes that the current occupant of the Oval Office is a good, kind and trustworthy ruler.”

Under the current incarnation of One Party Rule, the Republicans are impotent in the face of Obama and his large Democratic majority. The only hope for any moderation of the power of this presidency, must come from principled Democratic legislators in Congress (Feingold, Feinstein, and Leahy are stepping up). The only hope for economic sanity, must come from Democratic fiscal conservatives like the few Democratic representatives in the House of Representatives that voted against stimulus porker.

It’s only been a month.

Obama still has plenty of time to correct course.

That is my (faint) Hopeâ„¢.

Excerpted from “Divided We Stand United We Fall

  • http://themoderatevoice.com Pete Abel

    Quick, gut reaction: I think some parts of this analysis amount to hair-splitting and other parts (as you admit) are likely premature. That said, I applaud the effort and wholly endorse keeping the spotlight on these issues. There is a balance to be struck here and we should stay ever-on-guard against allowing that balance to tilt too far to the advantage of any individual or office.

  • Anna

    I agree with you Pete about always being vigilant on these issues however mw has made his dislike/distrust of Obama plain from day 1 and I personally believe that mw’s bias is getting the better of him. Less than a month into Obama’s presidency he’s willing to shout from the rooftops that Obama is just like Bush…color me skeptical.

  • http://westanddivided.blogspot.com/ mw

    Just as a point of accuracy – At no point do I say that “Obama is just like Bush.” The thrust of the post is that on the specific topic of the expansion of presidential power as exemplified by the aggressive redefinition of the Unitary Executive Theory that occurred under Bush/Cheney – Obama has so far supported and defended that definition. In fact, while we already have these sevaral examples of Obama supporting the Bush/Cheney unitary executive model, I cannot think of any examples where Obama has so far moved to reduce the expanded power of the executive.

    This should come as a surprise to nobody. All Presidents like power. The more the better. Obama is no exception. If the power of the Presidency is to be moved back to pre Bush/Cheney levels, it will happen because the judiciary or congress take it away, not because Obama gives it up.

  • http://fgcartoons.blogspot.com Frank

    I think Anna has this one right.

    No, mw, you don’t say “Obama is Just Like Bush”. You just use a picture of one morphing into the other. Here at Donklephant, once. Over at your blog, FIVE times! I think we are supposed to get a distinct “Just Like Bush” message from that illustration. Unless you just meant that they look similar?

    As for the meat of your article, I am certainly concerned. However the guy has been in office for only a few weeks. He hasn’t had time to read all the super-top-secret memos on everything yet. My Hope is still alive, but, to quote President Obama himself, “I’m an eternal optimist… That doesn’t mean I’m a sap.”

  • http://westanddivided.blogspot.com/ mw

    Well yes. The point of the post is that – on this specific question of expanded Presidential power – Obama is looking more and more like Bush every day. I think that image illustrates that point very well. Don’t you?

    Glenn Greenwald had another post on the topic yesterday, where he dismantles the “its only been three weeks” objection. Since I can never hope to write as well as him, and his unquestioned liberal credentials give him more credibility with the left of center readers here – I’ll just quote him again. But I’d encourage you to read the whole article:

    “There’s just no denying that there are substantial and disturbing steps which have been taken. And critically, the primary excuse offered by Obama supporters for all of these actions — he just needs more time; it’s only been three weeks — is a complete straw man.

    …these cases which have provoked objections are all cases where Obama has already taken affirmative actions to preserve and defend Bush/Cheney policies. In the State Secrets case, for example, the Obama DOJ explicitly rejected the ACLU’s offer for more time, declaring they do not need or want more time, that they have had ample time to review the issues and have decided that they believe in the Bush/Cheney theory of what the State Secrets privilege allows. Here’s what Greg Craig told Savage about why the Obama DOJ embraced Bush’s State Secrets theory:

    Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance.

    Can that be any clearer? Not even the Obama DOJ is claiming they needed more time. They’re saying they had all the time they needed, so Obama supporters should really stop trying to defend them by offering up excuses that the Obama administration itself rejects.

    …There are people who believe that Barack Obama is kind, just and good, and thus are going to have a hard time believing that he’s embracing some of the most abusive Bush/Cheney policies even when he does it right in front of their faces. Others aren’t ever going to object to what Obama does in this area, because they believe (as Bush supporters believed about Bush) that there’s nothing really wrong if Obama wields these same powers since Obama is a kind-hearted ruler and therefore can be trusted not to abuse these powers. As DCLaw pointed out yesterday, people with that swooning mentality can’t be reached because they don’t really believe in the basic premise on which the country was founded, as enunciated by James Madison in Federalist 51…

    We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good. We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law. That’s what it means to be a nation of laws and not men. When Obama embraces the same abusive and excessive powers that Bush embraced, it isn’t better because it’s Obama rather than Bush wielding that power. It’s the same. And that’s true even if one “trusts” Obama more than Bush. – gg

    I look for a way to be optimistic on this subject, but am having a hard time finding it. As I said in the post, what hope I do have comes from the Democrats in Congress who are moving to begin the process of restraining executive power. If it does come down to a showdown between Congress and the Executive branch, it’ll be interesting to see what the Republicans do. Obama may very well find common cause with many Republicans to preserve the Bush/Cheney expanded powers. The Republicans may prefer to preserve those powers in hopes of a Romney, or Jindal or Palin presidency.

  • http://fgcartoons.blogspot.com Frank

    Well, You’ve got me there. As I said, I am concerned.

    Two other points, though. Point One; How do you imagine a President McCain would have been MORE willing to change course on this issue?

    and… Point Two; This is what I meant about “tone” in my comment from a few days ago. We are in near-total agreement about the need for a restoration of Checks, Balances, Transparency, Rule of Law, etc… Yet when you begin and end an article about THIS issue with terms like “very bad stimulus bill” and “porker”, you are letting your anti-Obama (or maybe just anti- Democrat) bias leak through in a way that is unhelpful to your cause.

    In our “post-fact” society, where one can visit a website “proving” or “debunking” any political, economic, legal, religious or conspiracy theory, people screen out any information posited by obviously biased parties. EVEN IF IT IS ACCURATE. (and I don’t dispute that it is, in this case. No-one was more disappointed in the Telecom-immunity flip-flop than I.)

    Getting my information about what Obama is up to from you and sources you link to seems about as sensible (at this point) as getting information on what Bush was up to from Michael Moore, or sources he linked to. Or getting all my info on Barney Frank from Bill O’Reilly.

  • http://westanddivided.blogspot.com/ mw

    It isn’t so much that McCain would have taken a different course (although I do think he might have taken an even stronger position on the torture question – he fought his own party and Bush on it when in the Senate), but that this very heavy Dem majority Congress would have been much more resistant to McCain executive overreach. and more aggressive about continuing to pare back presidential power if McCain was in the office. They started the process in the last two years with Bush as president and did do some trimming around the edges of the Patriot Act and FISA, and with bigger majorities they could do more now. As I said in the post, it may still happen, it is just less likely they will do anything meaningful if Obama digs in this heals.

    Regarding my links – In this post I linked (outside of my own posts) the New York Times, Washington Post, San Francisco Chronicle, Politico, CBS, ACLU (left), Glenn Greenwald (left), Greg Sargent (left), NewsBusters (right), Emptywheel (left), Firedoglake (left), Marc Ambinder (?), Andrew Sullivan (claims right / talks left), Chris in DC (left), Patrick Leahy (left).

    I see the problem now. I am out of balance. I should never have included that NewsBusters link.