When the Bush administration was at the bench press, the left managed to create a narrative, largely accepted by the media, that the president was lawless. Now that it’s Obama’s turn, has the story changed? Friedersdorf takes the both-are-lawless path, and gets points for consistency, but he is tilting at windmills—both parties and mainstream public opinion support a president who can forcefully counter threats. Harold Koh, by contrast, argued in a recent speech that Obama is different and better than Bush was. He said that a “critical difference between this Administration and its predecessor is the Obama Administration’s determination not to address Al Qaeda and the Taliban solely through the tools of war.” Also:
“The Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s vague constitutional powers.” (I have added the emphases.)
But as national security law expert Ben Wittes points out, these statements are false. Bush did not solely use the tools of war; he also used civilian law enforcement, for example, by prosecuting Jose Padilla—indeed, more than Obama has. Bush did not just rely on presidential powers; he also relied on domestic law, just as Obama has. Similarities between the two presidents in overall legal approach dwarf the differences in rhetoric, atmospherics, and a few narrow legal questions.
Certainly, Obama is every bit as ruthless as his predecessors in pursuing what he sees as the requirements of national security.