Barack Obama’s updated version of the so-called war on terror has received a free pass from most US political and legal scholars. To be sure, civil libertarians and liberal voices on the editorial pages of the New York Times have pilloried Obama for his failure to fulfil what appeared to be heartfelt 2008 campaign promises to reverse his conservative predecessor’s controversial counterterrorism policies. Yet nothing akin to the avalanche of critical books or journal articles burying President George W. Bush’s policies has emerged. In part, the difference stems from Obama’s admirable decision to abandon the Bush administration’s embrace of so-called “enhanced interrogation” (i.e., torture). The silence likely stems as well from the partisan preferences of law professors and political scientists, many of whom instinctively sympathize with Obama and his Democratic administration. Those defensive instincts have surely been reinforced, albeit inadvertently, by right-wing critics like former Vice-President Dick Cheney and ex-New York Mayor Rudy Giuliani, neither of whom seems willing to miss an opportunity in front of the TV cameras to denounce Obama for being “weak on terrorism.”
Yet Obama’s mediocre humanitarian record in the “war on terror” deserves our critical scrutiny. His disappointing legacy generates an obvious question: what happened? Here I argue that Obama’s shortcomings can be attributed substantially to the specifically presidential character of US liberal democracy, according to which the chief executive is expected to perform institutional and symbolic functions reminiscent of classical monarchy. US presidential government’s latent monarchist attributes have played a decisive role in generating far-reaching policy and legal continuities between Bush and Obama. Unless US Americans take a more critical look not only at President Obama’s disappointing record in the war on terror, but also at the institutional idiosyncrasies of US presidential government, dramatic humanitarian improvements in the ongoing – and seemingly endless – US war on terror are unlikely to occur.
Presidentialism’s latent monarchical attributes can help us understand why Congress and civil society have been so eager to strengthen the executive’s hand in the war on terror. In the classical view, only the unitary presidential executive possess the requisite capacity for what Hamilton described in Federalist 70 as the “decision, activity, secrecy, and dispatch” necessary to ward off physical threats. This view has long constituted part of the popular mythology of presidential government. No wonder that an anxious electorate and its representatives in Congress tend instinctively to broaden the scope of executive power in the face of terrorism. Of course, there are many familiar reasons why a well-operating executive and administrative apparatus necessarily plays a major role in guaranteeing physical security: societies without the basic fundaments of modern statehood typically do not perform well in defending their citizens. Nonetheless, presidentialism’s monarchist attributes – including the belief in a quasi-divine right upon which presidentialism both relies and simultaneously helps generate – get in the way of a sober debate about what in fact the modern presidency can or should do. Despite the preoccupation with presidential charisma, modern presidents do not in fact have supermundane or magical powers. Moreover, it is dangerous to envision them, if only implicitly, as possessing such powers. Presidentialism rests on atavistic leftovers of an insufficiently disenchanted political worldview: the charismatic and supermundane ideology on which presidentialism relies is basically out of sync with a principled modern commitment to civil liberties and legality.