One of the signature stains on George W. Bush's presidency has been his energetic expansion of executive power. Bush has done more damage to the separation of powers and our system of checks and balances than any president in recent times, including Richard Nixon. His profligate use of signing statements to nullify parts of laws he signs and his assertions that the president as commander in chief has the inherent power to ignore federal law are a threat to democracy.
The next president will have to respond to this legacy and acknowledge constitutionally required separation of powers. Few Washington issues are more vital to the nation's long-term national interest than to have a president who recognizes the limits of executive authority. Both John McCain and Barack Obama say they oppose the use of presidential signing statements when the intent is to do an end run around Congress. McCain promises to "never" issue a signing statement, and Obama says their narrow purpose is to clarify ambiguous parts of statutes, not defy congressional instructions.
In another step in the right direction, both Obama and McCain have pledged to swiftly close the prison camp at Guantanamo Bay, Cuba. The Bush administration attempted to establish a legal black hole for the prisoners sent there. But last term, the U.S. Supreme Court embraced America's founding principles by explicitly granting Guantanamo detainees habeas corpus rights to challenge their indefinite confinement. The landmark ruling Boumediene vs. Bush was lauded by Obama and condemned by McCain as "one of the worst decisions in the history of this country."
The next president also ought to repudiate the use of torture, or enhanced interrogation methods as it has been euphemistically called. He should end the use of extraordinary rendition, which is the sending of prisoners to the security forces of other nations - essentially the outsourcing of torture.
A key strategy in the Bush administration's war on terror is a dismantling of the Geneva Conventions. This abandonment of the civilized rules of engagement led to prisoner abuse in Guantanamo, Abu Ghraib and other prison sites, and to the waterboarding of so-called high-value detainees by the CIA during interrogations.
While McCain has commendably stood up for the Conventions and against the torture of prisoners, he refused to support legislation that would have required the CIA to strictly follow military rules on interrogations. This suggests he is willing to give wider latitude in the treatment of prisoners to the very agency that has been accused of the worst atrocities. Obama supported the legislation that would have reined in the CIA and restricted the agency to those techniques approved under the Army Field Manual.
McCain also helped steer through Congress the 2006 Military Commissions Act, which stripped Guantanamo detainees of their habeas corpus rights. Obama opposed the legislation, which also established a highly one-sided and faulty military court system to try terror suspects.
Presidents don't like to give up power, but the next one will have to step back from Bush's power grab if America's system of checks and balances is to be put right. As a former constitutional law lecturer at the prestigious University of Chicago Law School, Obama is well versed in the historical battles between the branches. He has said on the campaign trail that every branch of government is limited.
Obama has demonstrated in his voting record and statements that he understands the importance of protecting traditional American civil liberties and discarding Bush's concept of overarching executive power. McCain has made some encouraging statements as well, but his record is not so clear.
This is the fourth in a series of editorials on key issues in the 2008 presidential election.