Separation of powers: It's a phrase bandied about, without thinking, like M&Ms at a party.
In the context of the American form of government, it means this: The founders of this nation learned to be afraid of concentrated government power, so they constructed the government as a three-part system, with none of the three branches having the upper hand, and each with the power to check the other.
President Bush, for almost his entire time in office, maintained that he had powers as chief executive that could trump the other branches of government.
To cite just one example, Bush felt that he could — without telling Congress or the courts — disregard long-standing laws because he interpreted them to be unconstitutional. Thus he secretly declared that he was not bound by the federal law requiring him to get approval from a specially created court in order to conduct electronic surveillance of American citizens.
On another front, he asserted the power to detain indefinitely both American citizens and foreigners without charge and without court review. The Supreme Court would eventually shoot down these claims of unlimited executive power, but some 275 prisoners remain at the detention facility at Guantanamo Bay, Cuba, some of them believed to be extremely dangerous, and some of them already declared by the courts to have been detained without justification.
What To Do With Guantanamo Prisoners?
So how is the new president to deal with those assertions of unlimited executive power — assertions that Obama has long denounced?
He has said he plans to shut down Guantanamo. But what to do with the prisoners there? It is widely believed that the new administration may have more success in getting other countries to accept detainees who are not believed to be dangerous or who were low-level fighters picked up in Afghanistan.
But what about people who are thought to be really dangerous? Some can be tried in regular U.S. courts for their crimes. But for others, the evidence against them is the self-incriminating product of harsh interrogation techniques, such as waterboarding, or it's from intelligence sources that cannot be cited in open court. So then what do we do?
"When we started down this path, I asked what are you going to do with these people in the end?" says former deputy attorney general and 9/11 Commission member Jamie Gorelick. "The decision was made by this administration to emphasize prevention at the price of what you do with them at the end. And now we're at that conundrum."
Considering A Special Terrorism Court
The consensus seems to be to wait and see how many of these cases cannot be resolved. Still, the problem is unlikely to go away since in the future we are likely to capture terrorists who pose a similar dilemma.
Gorelick and many others think that, in the end, Congress will have to create some sort of special terrorism court with the power to detain people we cannot try.
That isn't something we have ever done in this country, but increasingly, talk is focusing on how it could be done, what the standard for detention should be, for how long, and whether to require some sort of independent and periodic judicial review so that people are not just locked up and forgotten forever — in short, a system set up by one branch of government, the Congress, allowing the executive power to detain with a check by the judiciary.
Civil libertarians still hate this idea, seeing it as anathema to our system of proving charges with evidence. But it is something President-elect Obama will undoubtedly have to consider.
Calls For More Transparency
Conservatives and liberals alike said it is important that there be more transparency about the decisions being made by the president. The Bush administration only informed eight members of Congress about key intelligence matters, when Congress was informed at all.
Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, says that is a clear violation of the law.
"The intelligence committees, plural, should be informed, and that means telling them all," Specter says.
Congress was also repeatedly rebuffed in its efforts to see the legal opinions rendered by the Office of Legal Counsel, opinions that in the Bush years authorized unprecedented actions, including waterboarding and other harsh interrogation techniques previously considered torture. Once in office, the new administration is likely to review all of these opinions and to withdraw some — among them an opinion that allows the president to disregard a duly enacted law without telling Congress.
Walter Dellinger, who headed the Clinton administration's Office of Legal Counsel, reflects a widespread view that the legal counsel's opinions do need to be public wherever possible.
"You can't have government by the consent of the governed unless the citizenry knows what the government is doing. It's really the heart of a democracy so that as a citizen you can express your opposition," Dellinger says.
The Obama administration will also have to deal with the repercussions of various Bush administration scandals, from so-called torture tactics used by the CIA, to the mass firing of U.S. attorneys. Expect the new administration to take a fresh look at past interrogation tactics. But few expect there to be criminal prosecutions, since officials and operatives alike relied on Bush administration legal opinions that such tactics were legal.
Also outstanding are congressional subpoenas for information about the U.S. attorney firings, and it is the new president, not the former president, who can either continue to refuse those congressional requests for information, or agree to them. Leading Republican and Democratic members of Congress expect the new administration to turn over much of that information.
Tough Oversight And Presidential Restraint
There seems to be universal agreement, too, that tough congressional oversight helps an administration. Prior to the Bush administration, Justice departments run by presidents of both parties gave quite detailed briefings to the House and Senate judiciary committees about how the Foreign Intelligence Surveillance Act was being carried out. That's the law that set up a special court to review requests to conduct electric surveillance of Americans for intelligence purposes.
"There was a dialogue," says former deputy attorney general Gorelick. "I know this because I used to do it. I would sit with the chair and the ranking member and go through the report and say, 'Here are the issues.' When you do that, A, it does sometimes prompt oversight and questions; but, B, it gives you a sense of joining hands between the two branches around a tough issue at the intersection of liberty and security."
While Obama has often spoken out strongly about the value of tough oversight and presidential restraint, the view from the Oval Office is very different from the view from Capitol Hill. Brad Berenson, who served as associate White House counsel in the Bush administration, warns the new president that less is often better than more.
"If I had two minutes to put a bug in his ear about what to do," Berenson says, "it would all be directed toward having the strength and the wisdom to realize that he shouldn't necessarily use all the power he's gonna have. That was one of Bush's big mistakes. But self-restraint is so hard."