3 posts tagged “president”

The Democrats are failing us, as the recent FISA Court vote clearly demonstrates. They are not protecting our Civil Liberties, they are cowering before the political threats of a "politically weak" president and worst of all they are allowing him to arrogate more and more power into the Presidency. We need to make them understand that we want political leaders who will stand up for the People, our Liberties and the Republic.

Glenn Greenwald has written (here, here, here, here, here, and here) and spoken (here and here) extensively recently about how the Democrat-led Congress meekly deferred to the President and hastily revised the FISA laws, greatly expanding the government's power to secretly and without judicial or Congressional review tap any telephone or email communications that can be  "reasonably believed" to be outside the US. Many others have taken up the cry and all of the Democratic Presidential hopefuls have distanced themselves from the action.

Most of the writing on this topic has spoken about the great harm done to our Civil Liberties, but as John Dean pointed out, in many ways, that is not the most important and dangerous aspect of the incident. Dean wrote in FindLaw's on-line journal, The Writ, an article entitled "The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well". In it he wrote,

The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

Greenwald and numerous others have written of the FISA fiasco, that congress capitulated to the "weakest President" in recent history. Witness:

It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply.

-- Glenn Greenwald in Salon.com

Once again, the weakest president in the history of this country walks away a WINNER!!! Winning BIG TIME!

-- PinkytheBrain in a comment in Crooks and Liars

I do not understand how "Total Capitulation", jumping at the demand of the politcally weakest President in history, and craven betrayal of principle makes the Democrats "appear stronger".

-- LJean a comment in Balkinization

But if 41 Democrats lack the courage to stand up to the weakest president in decades at a time when every indicator they trust—polls, focus groups, pundits—is saying no to this man, when will they find the strength to stand?

-- Arlene Goldbard

By "weakest", of course, they mean that the President has extremely little support among the People, and after all the People are the source of power in our country and under our constitution. And so, lacking popular support the President should be weak, but in two very great senses, he is not. And therein lies the rub.

First of all, as they point out, the Democrats routinely, repeatably and predictably capitulate and give him pretty much anything he asks for. And secondly, what he has asked for is Power, and they have given it to him. They heap it on him and when they don't he just takes it and they stand by.

This President, this "weak" President has the authority to federalize the National Guard and deploy the US military within the borders of the US when, and I quote the new text of the insurrection act "as a result of ..., or other condition ... the President determines that ... domestic violence has occurred .. and such violence ... obstructs the execution of the laws ... or impedes the course of justice". It used to be that he could do so only to put down violent rebellion and insurgency, or to repel invasion. Now, natural disaster, terrorism or the unspecified "other condition" is sufficient. He used to be able to order insurgents to disperse, now he can issue a proclamation ordering "insurgents or those obstructing the enforcement of the laws to disperse". If he thinks peaceful protesters "obstruct enforcement", he can use the military to disperse them, once he has invoked this act. No other President has had this power.

With the FISA rewrite, it is not the Court but Attorney General Alberto Gonzales who oversees warrantless wiretaps. The same Alberto Gonzales who could not answer an opinion question asked of him in Congressional hearings without taking it back to "his principal"; who believes that the President as the sole supervisor of the "unitary executive" makes all decisions.

No, in terms of legal power, granted him and abdicated to him by the Congress, and his reconstituted Supreme Court,  the current President has more pure executive and governmental power than any previous President. God help us if he were politically powerful as well.

So what are we to do about it? Well, we can turn out any Congressman who doesn't stand up to him. We can replace them with people who understand that their mandate is to protect our liberties, our constitutional government and the Republic. But what if there aren't enough. California has no Senator who voted against FISA. Only one did in Massachusetts. These are the supposed extreme liberal states. What if there aren't any Democrats with backbone in a senatorial or congressional primary? Well, I suppose you could vote for the John Bircher, or the Libertarian. But still, what if there aren't enough?

Well, at least, wrote people last weekend, none of the Democratic Presidential candidates voted for the FISA amendment.  Perhaps the answer is to vote for a strong Democratic President who will whip Congress into shape and... wait a minute... Isn't that proposing that we turn to a Strong Presidential candidate to protect the Republic by weakening the Presidency? Is there, perhaps, just perhaps, a teeny little issue hiding in there?

This, boys and girls, ladies and gentlemen, is not going to be easy. The reason that power corrupts is that good people are tempted to use it--just for now--when it falls into their hands, for good purposes, and there are always good purposes that need power. And so power is seldom surrendered. The time to stop this isn't in the next election, it is now!

The FISA bill was only a temporary stopgap, with a 6-month sunset clause. Speaker Pelosi has sent a letter saying that when Congress returns next month, they'll need to reexamine it. But President Bush has also said that it needs to be revisited. It is, he feels only a first step, and the whole change needs to be made. Congress has to grant him and the executive branch, which as the sole supervisor of the unitary executive, means him, more power, more immunity from oversight, more protection from prosecution for him and those who go along with him, inside or outside the law.

The time to act is now. Make sure your voice, your free voice for so long as it remains so, is heard. Demand that your congressmen stand up for the Republic and against the concentration of ever more power into the President's hands.

Vox Libertas
A Free Voice, that cries Freedom!

One of my concerns regarding the state of the Republic is with what seems like a trend towards a government of men not laws, in a reversal of one of our most important principles. Here's an example from  Spiegel Online's interview with Tyler Drumheller, former chief of the CIA's Europe division (emphasis mine):

SPIEGEL: So there was no clear guidance of what is allowed in the so called "war on terrorism"?

Drumheller: Every responsible chief in the CIA knows that the more covert the action, the greater the need for a clear policy and a defined target. I once had to brief Condoleezza Rice on a rendition operation, and her chief concern was not whether it was the right thing to do, but what the president would think about it. I would have expected a big meeting, a debate about whether to proceed with the plan, a couple of hours of consideration of the pros and cons. We should have been talking about the value of the target, whether the threat he presented warranted such a potentially controversial intervention. This is no way to run a covert policy. If the White House wants to take extraordinary measures to win, it can't just let things go through without any discussion about their value and morality.

This jumped out at me in part because of something I'd heard from the Attorney General a couple of days earlier while watching video of the January 18 Senate Judiciary Committee hearing, “Oversight of the U.S. Department of Justice”:

LEAHY:  But before I turn it over to Senator Specter, let me mention that Senator Specter and I joined together in asking the chief judge in the FISA court for copies of the decision of that court that you announced publicly on Wednesday.  The court’s apparently willing to provide these decisions to the committee.  You have no objection for that, do you?

GONZALES:  Senator, I think that’s a decision that I would like to take back to my principal, quite frankly.

[... text elided ...]

LEAHY:  I don’t think I fully understand that.  Are you saying that you might object to the court giving us decisions that you’ve publicly announced?  Are we a little Alice in Wonderland here?

GONZALES:  I’m not saying that I have objections to it being released.  What I’m saying is it’s not my decision to make.

The first case was pretty blatant. Drumheller is explicitly calling out Rice for being more concerned with the President's opinion than principles or process. The second is a bit more subtle. Senator Leahy is focusing on the apparent contradiction of Gonzales announcing the decision and then objecting to the court sharing it. What bothers me is that the Attorney General cannot make such a simple decision on his own. Please note that the decision to release the decision is the court's and not the AG's. Leahy is only asking the AG's opinion on the court's decision.

Note, too, the language that Gonzales uses. He calls the President "his principal", as if he is still the White House Counsel or the President's personal attorney, rather than the nation's chief law enforcement officer, the head of the Department of Justice and the nation's attorney.

I'm sure that many will think I'm making a mountain out of a mole hill, but these statements aren't isolated, they are part of a larger pattern, one that involves controversial political theory, and questionable practices. They tie to theories of Presidential "inherent authority", the doctrine of the "unitary executive", and the President's recent actions.

Let me outline this greater context in hopes of clarifying the reasons for my concern when I heard the above comments.

Inherent Authority Theory

The theory of the president's "inherent authority" as Commander in Chief has been put forth multiple times, in somewhat different forms by John Yoo of UC Berkley. Most famously and accessibly, he put it forth in the memos that were issued in the weeks after 9-11 which asserted that the President had the authority he needed to conduct military and intelligence operations as he saw fit in the War on Terror, and then in his book The Powers of War and Peace.

The basic thrust of this theory is that rather than being a coequal branch of government with the legislative and judicial branches whose powers are limited to those expressly granted to them, the President as the Chief Executive and Commander-in-Chief has implicit unenumerated "inherent powers". As an example of this, take the following from the Sep 25, 2001 memorandum:

This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution.

So, it would seem that when We the People did ordain and establish the Constitution, we did so in a way that modeled the role of the President as Executive on that of the King of England. The notion that the President wields powers that are assumed by his Executive and military roles is tied fairly closely to another theory that the administration has been promulgating—that of the "Unified Executive".

Unified or Unitary Executive Doctrine

This theory proposes that, in the President's quaint wording, he is the sole "decider" of the Executive branch, that all executive authority and responsibility resides in him, and that the rest of the Executive branch are merely his employees, whom he directs. This has a number of implications. One is that one agency or department in the  Executive branch cannot sue another, since there would be only one party to the suit—the President would be suing himself! Another is that the Legislature cannot direct Executive branch departments or agencies, that would usurp the President's responsibility to supervise his direct and indirect reports. Thus, when Congress charges a particular agency to carry out a specific law or to report back to them, they exceed their authority. Alternatively, they cannot under this theory set qualifications on who can fill posts that they create. That would interfere with his right to hire whom he chooses.

If the Inherent Authority theory treats the President as if he was King George III, the Unified Executive comes closer to The Sun King. While it falls short of Louis' claim, "L'etate, c'est moi" ("I am the State"), it basically declares that the President is the Executive Branch, and all dealings between the Legislature and the Executive go through him. Moreover, in order to take care that the laws and Constitution are faithfully executed, it is his duty to interpret the Constitution, overthrowing the principle of Judicial Supremacy established in Marbury v. Madison.

Put together, we end up with a picture of a Commander in Chief and Chief Executive who is the sovereign head of the executive branch, and who exercises inherent powers beyond those explicitly enumerated in the Constitution.

Executive Order 13422—"Policy Officers"

Let us turn now, not to the theory that the President and his administration operate under, but some of the actions they and the Republican dominated Congress have taken, and how those expand his powers, as if the inherent powers of the unitary executive were not enough. One that was being debated in two Congressional committee hearings Tuesday, is Executive Order 13422 which revises 12866 which sets out how regulations established by federal agencies are planned and reviewed. On the whole, much of 12866, both before and after amendment seems like good governance, and an attempt to control and rationalize the many shelf yards of federal regulations.

But one major change is that whereas the original order created the role of "Policy Officer" reporting to the heads of major agencies, the new version mandates them for all agencies, requires that they be someone appointed by the President (without requiring that they be approved by Congress) and reporting to the President. Further, it specifies that that the Policy Officer must approve of each regulatory effort before it is put on the agency's schedule and each regulation before it is published.

The Policy Officer changes have two basic effects, they give the President more direct control of the executive, allowing him to specify how Congress's laws are enacted, which is in keeping with the Unitary Executive model. It also shifts control away from the professionals in the agency's area of expertise to political appointees. To an extent, this shifts us in the direction of Soviet apparatchiks, a model which while it was intended to insure that Party goals and priorities were met, resulted in a marked decrease in the effectiveness of the Soviet bureaucracy.

Changes to "The Insurrection Act"

The second action that fits into this pattern of centralized Presidential control is to be found in H.R. 5122, the "John Warner Defense Authorization Act of 2007", which among a great many other things amended the Insurrection Act, which along with Posse Comitatus controls and limits the President's use of the military within the United States. The changes are worded as a collection of edits which alter a substantial fraction of the wording of section 333 of the Insurrection Act, and so I found it helpful to create a marked-up version of §333, showing the changes. Also helpful is a flow chart in the Wikipedia entry for the insurrection act.

As either of these should make clear, the major change is to expand the circumstances under which the President can deploy the armed forces and take direct control of the National Guard away from the Governors who normally command them. In the past, he could do so only in cases of "insurrection, domestic violence, unlawful combination, or conspiracy". Under the new wording "natural disasters, public health emergencies and terrorism" are added to the list as is the wildcard "other circumstances". Other changes include specifying that the President can use the  armed forces, including the National Guard, in US territories as well as the states, explicitly naming the National Guard rather than referring to "the militia" and what appear to be minor textual changes.

With a broad enough interpretation of "other circumstances" and "opposes or obstructs the execution of the laws" or "impedes the course of justice", the President can pretty much deploy the military domestically whenever he feels it necessary and become the sole military commander in the area, federalizing the National Guard. So long as you trust the President, this isn't such a bad thing. But as other nations have learned, elected officials are not always what they seem.

Final Questions

The final result of these theories and changes in the law is that we have a President who is the sole decision maker in a unified hierarchical executive branch with inherent unenumerated powers as Commander In Chief and Chief Executive upon which Congress may not intrude, who is responsible for interpreting the laws and Constitution and how they are carried out, who is authorized to take sole command of all federal and state military force and use it domestically in any circumstances where he believes that justice or the execution of his interpretation of the laws is impeded.

The questions that we must now ask ourselves are

1. What exactly is the difference between "the decider" as constituted above and "dictator"?
2. Do we believe that this President and all of his successors are trustworthy enough to be given this power?