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Legal interpretation of governmental authority in the national security realm has attracted extraordinary prominence recently, in light of constantly emerging revelations of controversial policies. Lawsuits seeking access under the Freedom of Information Act to confidential executive branch legal analysis justifying these policies have started in the federal courts, only to be met with refusals by the Department of Justice to release its legal opinions. This article examines litigation seeking Office of Legal Counsel opinions justifying the Obama administration's targeted killing program and Federal Bureau of Investigation authority to gather call information, without using any legal process, from telecommunications companies.

You may be forgiven if you associate Lou Fisher's name primarily with his robust defense of Congress's preeminent authority in national security and budgetary matters, or with the idea that courts are only one of three co-equal players in the constitutional dialogue that occurs among all of the branches, or with the related effort to disabuse scholars, the press, and the public of the profoundly incorrect notion that courts have "the last word" in constitutional interpretation. All of these themes are, indeed, key components of Fisher's vast body of scholarly work and public testimony, and they will be forever linked to him as their progenitor. Just as solidly grounded in impeccable research and unassailable logic is Fisher's work on executive power. It fits snugly within his Madisonian emphasis on a government of limited and shared powers, enforced through effective checks and balances, where each institution exercises its respective power while overseeing the other branches to ensure respect for constitutional boundaries.

The Obama administration struggled throughout its first term to live up to its campaign promises to reverse the most objectionable of the Bush administration's counterterrorism policies and to govern by "rule of law" principles. It is clear that most of these policies continued with minimal changes, and some even expanded to include more controversial elements such as targeted killings. The most visible policy failure has been the inability to close the military prison at Guantanamo Bay. Efforts to accomplish this closure became entwined with two other unfulfilled campaign promises—rejection of the use of military commissions for prosecuting terrorist suspects and halting the practice of indefinite detention of uncharged suspects. In this article I analyze the impact of the role played by the rivalry for influence between White House political advisors and policy principals, on the one hand, and executive branch legal advisors, on the other, on the failure to roll back Bush's counterterrorism policies.