Bush and Obama Fight Terrorists Outside Justice Jackson’s Twilight Zone

Abstract

To explain the differences in how George W. Bush and Barack H. Obama have exercised executive powers, one metaphor is to compare the Presidents to Odysseus. One formula comes from Justice Jackson’s famous concurrence in the Steel Seizure Case. And one set of facts relates to programs that involve the Central Intelligence Agency. As to the use of Predator strikes, irregular renditions, military commissions, the state-secrets privilege, and the enemy-combatant label, there has been surprising continuity between presidential administrations. Obama, adding bows and ribbons, has changed the packaging of aggressive programs more than their contents. And Jackson’s categories are less useful than other academics would have you believe.

Keywords: executive powers, Justice Robert Jackson, Steel Seizure, irregular renditions, military commission, state secrets privilege, enemy combatant, constitutional law, presidents, executive privilege