06/12/2013 10:46 am ET Updated Aug 12, 2013

Obama Is Not Bush on NSA/Surveillance Because Only Bush Claimed Absolute Power

I am not here to defend the surveillance programs our government has been operating. In fact, I have serious qualms about them. I need to know more, and from different kinds of sources, before I form my final opinion. I also recognize no one is actually waiting for me to issue that opinion before doing, well, anything.

What I'm focused on here is the claim that -- now that the curtain has been pulled back -- we can see that President Barack Obama is essentially no different from President George W. Bush on the matter of surveillance. Well, in the words of Mitt Romney (!):


The most important distinction between the surveillance programs operating now and those operating under the previous administration is this: President George W. Bush claimed absolute power, and did so in an area where a duly enacted law specifically limited presidential authority. Bush claimed that -- even though the law required him to get warrants from the FISA court before wiretapping or eavesdropping on communication -- the Constitution gives him essentially unchecked authority on matters of national security. According to the Washington Post, the Bush administration argued that:

The inherent presidential powers in Article II of the Constitution -- to wage war -- cannot be abridged or impended in the context of a global terrorism fight. Justice lawyers say they believe that the president's powers are consistent with FISA but that if there is any question of a conflict, the president's powers trump FISA.

This argument, the so-called Unitary Executive Theory, was linked most often to John Yoo, a Deputy Assistant U.S. Attorney General in the Office of Legal Counsel in Bush's Department of Justice. It means that the President can operate essentially by decree on matters of national security, with the President himself defining what falls under "national security." Barack Obama has not claimed nor has he sought any such power for the office of the President.

That matters.

The surveillance programs operating under President Obama are being supervised by the courts as called for by law. The administration also has been briefing Congress, as called for by law. The administration has not claimed any special authority to go outside the existing FISA law, which has been amended a number of times. Of course, just because something is legal doesn't make it right. But it matters that President Obama followed the law and President Bush did not.

If you want to argue that the kind of surveillance being done under President Obama is very similar to or even more extensive than that done under President Bush, then fine, make that argument. The changes to the FISA law have broadened the scope of what is allowed, without question. If you want to argue that these surveillance programs are a disastrous invasion of privacy, then fine, make that argument. Those are questions worth debating. Let's have a vigorous debate about privacy and surveillance and the role of government.

However, you cannot argue that there is no difference between the two presidents on this matter. The claim that the president can ignore the law -- that his authority when it comes to defending the country is unchecked -- makes a mockery of our centuries-old tradition of separation of powers and makes the President virtually an elected dictator. By claiming such authority as justification for his surveillance programs, George W. Bush pointed a dagger at the heart of democracy. Barack Obama did no such thing.