Jack Goldsmith’s article in TNR on the Obama’s pursuit of War on Terror powers spurred a lot of talk last week, including a positive comment from Volokh’s Jonathan Adler.  Goldsmith argues that on a wide array of War on Terror powers – including military tribunals, detentions, surveillance, targeted killings, and interrogations – Obama administration policy has been either functionally identical or at least possibly (but not verifiably to the public) identical to the policy of the late-term Bush administration.

Goldsmith also argues that certain aesthetic or procedural changes in the way the Obama administration has pursued these policies legitimate them in a way that the Bush administration did not.  By coordinating its efforts with Congress and appearing to restrain its use of these powers (but not actually restraining them), Obama is granting these powers democratic legitimacy:

The Obama strategy can also be seen, more charitably, as a prudent attempt to legitimate and thus strengthen the extraordinary powers that the president must exercise in the long war against Islamist terrorists. The president simply cannot exercise these powers over an indefinite period unless Congress and the courts support him. And they will not support him unless they think he is exercising his powers responsibly, under law, with real constraints, to address a real threat. The Obama strategy can thus be seen as an attempt to make the core Bush approach to terrorism politically and legally more palatable, and thus sustainable.

But how much credit should Obama get for cooperating with Congress?  Certainly, Democrats in the legislature will be willing to laud Obama’s completely cosmetic restraints as “real change”.  Republicans, meanwhile, will be happy to support the actually retained anti-terror infrastructure, though unwilling to validate the aesthetic touch-up as inherently meaningful.  So Obama’s non-change of course is a relatively painless political move.

But would the same have been the case for the Bush administration?  Or is it more likely that whatever concessions the Bush administration made to Democrats in Congress would simply have become the new baseline for complaints about the executive’s “imperial authority”?  Inevitably, the Bush administration would have been backed into a position from which it would not have been willing to make further concessions.  Nor is it clear that Congress wanted to carefully enumerate specific executive powers, rather than make vague grants of authority like AUMF, whose meaning it could interpret as their constituents demanded.

Goldsmith himself claims that the Bush administration provoked suspicion by openly defending its expansion of executive powers and that Obama lowered tensions by (disingenuously) claiming to have curtailed those powers.  If Bush’s openly adopted policies seemed more sinister than Obama’s disingenuous but nearly identical ones, then we must at least consider that Democrats simply view Republican exercise of wartime powers as inherently sinister.  The Bush administration probably could not have made the same concessions that Obama’s had without encouraging demands for even more concessions.

As a side note, let me say that I am not completely sure how I ought to feel about the War on Terror powers in question.  As long as our country’s actual policies are shrouded in secrecy, it seems to me that we ought to be skeptical.  How many people have been tortured and how?  How many people are in foreign prisons, and how long will they remain there?  What number of innocents are killed in targeted killings?  I am uncomfortable taking a position on secret and unmeasurable war powers, so I desire, at a minimum, less secrecy.  If issues like torture are debated only in the abstract, someone must end up paying too high a cost in reality.