After Bush Left: Congress and the Courts in the War on Terror During the Obama Presidency (At Least So Far)

Glenn Greenwald had an interesting post recently on the fact that the sunsetting provisions of the Patriot Act have largely bipartisan support for their renewal:

[W]hen they were out of power, the Democrats reviled the Patriot Act and constantly complained about fear-mongering tactics and exploitation of the Terrorist threat being used to stifle civil liberties and privacy concerns. Now that they’re in power and a Democratic administration is arguing for extension of the Patriot Act, they use fear-mongering tactics and exploitation of the Terrorist threat to stifle civil liberties and privacy concerns (“If somebody wants to take on their shoulders not having provisions in place which are necessary to protect the United States at this time, that’s a big, big weight to bear,” warned Feinstein). And they’re joined in those efforts by the vast majority of the GOP caucus. Remember, though: there is no bipartisanship in Washington, the parties are constantly at each other’s throats, and they don’t agree on anything significant, and thus can’t get anything done. If only that were true.

On one hand, I suspect that part of the bi-partisan agreement on these issues reflects the fact that only a small part of Patriot Act-related authorities are involved: Although the latest legislation is being billed as a “renewal of the Patriot Act,” it’s perhaps more accurate to call it a renewal of a few authorities that were amended by the Patriot Act. At the same time, I think Greenwald is right that attitudes have shifted with the new President. But why? Some of that is just a predictable shifting of ground among politicians, but my sense is that a lot of it is a response to the departure of the Bush Presidency.

Here’s my thinking. During its second Term, the Bush Administration dropped to and stayed at Nixon-during-Watergate levels of popular support. In that kind of environment, the other branches of government were more likely to step in so long as Bush was in power. Now that Bush is out, however, the other branches seem to be less interested in playing a strong role. I think you see this with the Supreme Court in particular. While Bush was in power, it seemed that the Supreme Court granted cert in pretty much every major Gitmo case. If there was a big test case on the Executive Branch’s authority related to terrorism, the Supreme Court wanted to review the case and have its say.

Since Obama took office, though, the Supreme Court has mostly stayed out of these issues. The last Gitmo case was Boumediene v. Bush, handed down in June 2008. Since Obama took office, the Court has denied cert in major surveillance cases and big cases on state secrets. And while Court did take the material witness detention case this Term, Ashcroft v. Al-Kidd, it seems pretty certain that the Court is going to reverse the Ninth Circuit and rule in favor of the government side. Indeed, the oral argument in that casewas a little surreal: As I wrote at the time, “[t]he Justices seemed kind of bored with the case and didn’t have a lot to ask about it[.]” I doubt the argument would have gone so smoothly for the government if it had occurred in 2008 instead of 2011.

If I’m right, a significant part of the reaction of Congress and the Supreme Court to the executive branch a few years ago was not so much a response to the executive branch generally but rather to that particular executive branch. A new President has changed the dynamic, resulting in the other branches playing a more passive role than than they were playing just five years ago.