Will Obama be like Bush on executive power?

By Joseph Williams, Globe Staff

WASHINGTON -- As a Senate committee debated today whether to create a "truth commission" to investigate alleged abuses of White House authority during the Bush era, President Obama has quietly adopted some of his predecessor's expansive views of the power as commander-in-chief -- especially concerning anti-terrorism policies.

Those moves could lead to a confrontation over the scope of presidential authority with the Democratic-led Congress, whose leaders say they intend to recalibrate the balance of power between Congress and the White House. Some top Democrats, Obama allies, and civil libertarians say they are closely watching how the new president uses his power, and intend to challenge him if he does not voluntarily roll it back to pre-Bush limits.

Senator Russ Feingold, a Wisconsin Democrat and member of both the Senate judiciary and intelligence committees, was one of several lawmakers who co-sponsored legislation to limit use of a "state secrets" exemption after Justice Department lawyers, under new Attorney General Eric Holder, invoked the provision in a federal lawsuit against Jeppesen, Inc., a subsidiary of Boeing. The attorneys argued that the White House believes the case should be dismissed because it could force the revelation of classified information which could jeopardize national security.

"I'm certainly on guard that it's not abused by the Obama administration," Feingold said, referring to the president's view of power. "I will be disagreeing with some of their conclusions."

Senator Patrick Leahy, a Vermont Democrat and judiciary committee chairman, is pushing for the "truth commission" to investigate the Bush administration's national security policies, including search and seizure powers.

"Nothing has done more to damage America’s place in the world than the revelation that this nation stretched the law and the bounds of executive power to authorize torture and cruel treatment," Leahy said in opening remarks at today's hearing.

Quoting a recent decision by Supreme Court Justice Anthony Kennedy, Leahy said the Constitution "is not something an administration is able 'to switch … on and off at will,' " and that to prevent future abuses the nation "must not be afraid to look at what we have done" no matter how painful.

"We must understand that national security means protecting our country by advancing our laws and values, not discarding them," Leahy said.

However, Senator Arlen Specter of Pennsylvania, the top Republican on the committee, rejected the proposal, saying that the Justice Department is already investigating the Bush policies and releasing its secret memos justifying them. Democrats, he said, "can walk in the front door" of the Justice Department and "ask directions to the relevant filing cabinet."

The ongoing Justice Department investigation will be thorough, Specter said. "They're not going to pull any punches on the prior administration," he said.

The Senate debate comes as the American Civil Liberties Union and other watchdog groups say they are carefully monitoring the president and his staff, ready to sound the alarm if Obama follows in Bush's footsteps and more fully adopts the expanded view of presidential power.

The ACLU filed the lawsuit against Jeppesen on behalf of five terrorist suspects who sued the company, alleging it helped transport them overseas for harsh interrogations. When Justice Department lawyers cited the state secrets provision in the Jeppesen lawsuit, the ACLU expressed outrage.

"It was more than disappointing," said Caroline Frederickson, director of the ACLU's Washington office.

Given that Obama, on the campaign trail, derided Bush's views of executive power, Frederickson said it's unclear "whether the government's posture in the recent cases reflect the final judgment by the Holder Justice Department or whether it's a placeholder position as they evaluate" the national-security assertions of the Bush administration.

"It's really hard to say yet which it is," Frederickson said. "But it's worrisome."

Justice Department spokesman Matthew Miller declined to comment specifically about the case today because it is still in litigation. He said the department is reviewing the bills that would restrict the use of the state secrets provision.

In a written questionnaire during his Senate confirmation hearings, Holder pledged to use the state secrets provision only "when legally and factually appropriate" and promised to "consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment" on whether to support a bill restricting its use.