Taking After Cheney: Obama and Romney on Executive Power

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Both men have embraced the post-9/11 paradigm -- which makes pointed questions on the subject more vital than ever.

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Charlie Savage's 2007 book Takeover details how Dick Cheney, a decades-long proponent of a powerful presidency, had all but achieved his goal by the end of the Bush presidency: using his influence in the administration, he helped to set precedents that would expand executive power regardless of which party occupied the White House. Takeover concludes with the prediction that President Bush's successor would determine if this radical new approach would be a post-9/11 aberration or a permanent change in the executive branch.

Given his notion of the stakes, little wonder that Savage proceeded to watch the early debates in the 2008 election cycle eager to hear how candidates would address so relevant and fraught a subject. When it wasn't raised by the moderators, he got increasingly annoyed, crankily complained to his wife, and ultimately followed her advice: that he should pose the questions he wanted answered himself, because if he didn't take the initiative no one else would. "So I crafted a survey and sent it out to the top six candidates of each party. The Boston Globe has a window of influence ahead of the New Hampshire primary, so the campaigns took it seriously," he said. "Some of the candidates were eager to participate, while others did so only reluctantly and after much wheedling on my part. Eventually I got to a pretty comprehensive response."

The result was one of the most useful bits of reporting during the 2008 election cycle. Taken together, the survey's twelve questions tried to tease out each candidate's notion of what he or she'd be able to do unilaterally as president, the other branches of government be damned. It's hard to imagine anything more vital to know about someone seeking to be the country's most powerful individual.

Four years later, it's useful to return to the answers submitted by Mitt Romney and Barack Obama -- along with the 2011 iteration of the project published at Savage's current home, The New York Times -- for they remain among the most direct statements the candidates have made on this subject, and are likely to figure into the presidential race between them, perhaps in significant ways.

The most consequential answers are the ones they gave in reply to this still relevant question:
 

In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

For Barack Obama circa 2007, bombing Iran required Congressional approval. He gave himself little wiggle room:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action. As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that "any offensive military action taken by the United States against Iran must be explicitly authorized by Congress."

Whereas Mitt Romney implied, but did not state outright, that it would be okay for the president to act unilaterally:
 

A President must always act in the best interests of the United States to protect us against a potential threat, including a nuclear Iran. Naturally, it is always preferable to seek agreement of all -- leadership of our government as well as our friends around the world -- where those circumstances are available.

And in 2011, responding to a similar question, Romney wrote:


Ever since the administration of Thomas Jefferson, U.S. presidents have relied on their inherent constitutional powers to authorize the use of military force even in the absence of an imminent threat to the U.S. homeland.

If that's all there was to the two men's positions, Obama could try to paint Romney as a dangerously bellicose George W. Bush retread who supported the ill-conceived Iraq War and might needlessly take us into Iran, even if the Congress and the people decide it's imprudent. Romney would likely retort that the president has a duty to act unilaterally to protect the safety of Americans, something he'd do better than Obama. The debate may yet play out that way.

But there are complications.

Obama has shown himself willing to violate his promises on executive power, going so far as to take America to war in Libya without congressional approval. He's also inoculated himself against the charge that he won't act unilaterally to keep Americans safe: ordering the Bin Laden raid is a trump card he can play should the accusation arise. Finally, there is evidence that the United States is already covertly acting against Iran. And although it is classified the Obama Administration is prone to unlawful leaks when it finds it can get out politically useful information. 

Regardless of how the campaign plays out, voters will be choosing in November between a Democrat and a Republican neither one of which would be likely to let Congress get in the way of launching a war they wanted to wage, regardless of what either one of them says on the subject.

Another part of the 2007 survey with potential to play a role in the campaign are the following questions:

  • "If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president's authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?"
  • "Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?"

Said Obama, "No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors." And he did in fact end the torture that the Bush Administration illegally perpetrated. 

Obama also stated, "It is illegal and unwise for the President to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The Commander-in-Chief power does not allow the President to defy those treaties."

Romney's 2007 answers were very different. Rather than commit to the Army Field Manual, he stated that the president should keep secret both the sorts of interrogation techniques to be used and its opinion of whether Congress may validly limit them. As for human rights treaties, Romney stated that "The President must carry out all of his duties in a manner consistent with the rule of law, whether it is our Constitution or valid international agreements, so long as they do not impinge upon the President's constitutional authority." That's a murky caveat that renders all before it meaningless depending on one's notion of the president's constitutional authority.

Romney went farther in 2011:

I strongly oppose and will not tolerate the use of torture. I support the use of appropriate and necessary interrogation techniques to obtain information from high-value terrorists who possess knowledge critical to our national defense. I do not believe it is wise for our country to reveal all of the precise interrogation methods we may authorize for use against captured terrorists, and I strongly condemn the actions taken by President Obama to do so.

On this subject, Romney and Obama now appear to at least agree that torture is wrong. But this is misleading, because Romney doesn't regard the Bush Administration as having tortured anyone. In effect, Obama is committed to never waterboarding a prisoner. As yet, Romney is not.

There is an interesting if perverse way that the campaign debate on this subject could play out. Romney could accurately point out that President Obama, who has insisted that torture did happen, is obligated by duly ratified treaty to investigate and prosecute torture if he thinks it occurred. That Obama hasn't done so is inconsistent with his avowed positions on treaties, international law, and presidential obligations. And the possibility of that accurate line of attack is perhaps going to prevent Obama from launching his own attacks on Romney for his position on torture. 

Politics aside, who is better on the full range of executive power issues? The short answer is that anyone for whom Madisonian limits on presidential power is the biggest issue should think about voting for a third party candidate. Obama's actions and Romney's rhetoric are both atrocious -- for example, both believe the president can order the extrajudicial assassination of an American citizen so long as he or she is first declared an enemy combatant by the executive branch -- and what they'd do in office between 2012 and 2016 is largely unpredictable because neither is willing to bind himself in fact to any meaningful constraints. There is nevertheless value in limiting the range of actions they can order without betraying their previous statements. That means that, between the two of them, the 2012 campaign may itself help shape the respective constraints they'd face if elected -- if the press cares enough to raise these issues. More likely than not, neither Obama nor Romney will themselves make it an issue, nor will their surrogates, nor the Democratic or Republican parties. It's all on the media.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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