Unchecked and unbalanced
by Robert Philbin
[ bookreviews ]
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." - James Madison, Federalist Papers
"To be or not to be, that is the question; Whether 'tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles, And by opposing, end them." - William Shakespeare, 1602
Two obvious problems have developed over the last seven years in the conduct of American government: One is the Bush Doctrine, the premise (any president might argue) to establish a quasi-legal basis for his administration's international actions, specific to this administration, "preemptive" war-making powers as a response to threats of terror; and second, is the acceleration of the natural accrual of domestic power by any executive in the name of "national security" in a time of war. These two initiatives, driven by probably the most aggressive presidency in recent history, and propitiated by 9/11 and single-party dominance of government, naturally give rise to "balance of power" conflicts between the legislative, executive and judicial branches as was carefully debated and structured as the foundation of American government in The Constitution of the United States of America.
As we see playing out in Washington, DC, daily, this "imbalance of power" is moving increasingly toward open conflict and perhaps eventual resolution. As The White House continues to distance itself from moderate Republican members of Congress, primarily over the conduct of the war of Iraq, the two branches, after years of comfortable single-party domination, are moving back toward a more natural and Constitutionally intended state of tension and opposition. A resolution to impeach Vice-President Cheney has been entered in the House and a majority of the American public welcomes such an inquiry into administration conduct; Democratic Congressional leadership has rejected that remedy, however, in what many say is an effort to further fragment Republican party unity going into the next election cycle. Where and how the greater conflict between the executive and the legislative plays out is therefore a matter of time; however based on one reading of Unchecked and Unbalanced: Presidential Power in a Time of Terror, the election of a new administration will not likely resolve Madison's concern that the rising "tyranny of accumulation" becomes a major threat to the Constitution's ability "to secure the blessings of liberty to ourselves and our posterity."
This is not a new situation of course, Americans have been down this road before and the system has continually weathered conflicting balance struggles from The Alien and Sedition Acts of the Adams Administration in 1798, to the Civil War and assassination of President Lincoln in the Andrew Johnson Administration; Watergate and the Vietnam War of the Nixon Administration; the Iran-Contra secret arms and illegal war funding by the Regan Administration, and the perjury-rooted impeachment proceedings during the Clinton Administration. As Unchecked and Unbalanced demonstrates, the Bush presidency is not the first to push the envelope of law in building secret international and domestic operations to usurp Congressional Constitutional oversight in the name of "national security," "threats of terror," or what President Franklin D Roosevelt called "subversion" in his secret memo defining the scope of "suspects" the FBI could investigate during World War II. (This vagary of logic and imprecision of language led to the infamous forced internment of tens of thousands of Japanese American citizens in remote prison camps by Roosevelt Administration directives.
Terms as vague as "national security" or "supporting terror," can't be clarified precisely because the language means literally whatever the president and his appointees assert it to mean. "Evil doers" lurk everywhere throughout history, as in the Nixon Administration, quoted in Unchecked and Unbalanced, when "in his cynical conversation with White House Counsel John Dean, caught on tape, Nixon envisaged the open-ended use of intelligence powers against political enemies - in that instance the burglary of the office Daniel Ellsberg's psychiatrist - all hidden under the rubric of "national security." Here's President Nixon directly on the subject of executive legal constraint, in an interview a few years after his resignation:
[Interviewer]: So what, in a sense, you're saying is that there are certain situations... where the president can decide that it's in the best interests of the nation or something, and do something illegal.
Nixon: Well, when the president does it, that means that it is not illegal.
[Interviewer]: By definition?
Nixon: Exactly. Exactly. If the president determines that a specific action is necessary to protect national security, then the action is lawful, even if it is prohibited by a federal statue. [p156]
As the demise of his administration and stature in history indicate, the Constitution certainly does not grant an arrogant, misguided president the unchecked and unbalanced power to set aside law whenever an ill-defined "national security" interest could be called into play. According to authors Frederick AO Schwarz, Jr and Aziz Z Huq, regarded and experienced attorneys in the Brennan Center for Justice at NYU School of Law, the current administration has taken Madison's "accumulation of power" since the Nixon and Regan administrations to the ultimate "accumulation," now virtually unchecked and unbalanced, creating what they call "a secret presidency, run by classified presidential decisions and secret laws." The authors point fundamentally to "a hyperactive Office of Legal Counsel (OLC) in the Department of Justice" that has aggressively expanded executive power through mandate, "in a vision of unmitigated presidential authority inconsistent with the Constitution and roots of the nation." The result, they argue, undoes the very nature of the executive defined by the Constitution and returns President Bush II claims of executive authority to the level of a divinely ordained monarchy:
"[T]he OLC issued a series of rulings from September 2001 onward retrogressing to a monarchical vision of government, with a correlative neutering of the Constitution's checks and balances." [p187]
"This book is about how this new theory of unchecked presidential power developed and why it is embarrassingly wrong. This theory upsets the delicate balance of our constitutionalized government, sullies the nation's name, and hurts vital counterterrorism campaigns. The theory is not a response to 9/11, but, as the 1987 minority report [Iran Contra congressional report] suggests, has long been nurtured by the leaders of today's Bush Administration." [p1]
Congress is not on equal par with the executive today. An administration can make decisions secretly (if not well) and in real time, resorting to mass media outlets to persuade public opinion on any matter, while Congress plods along - all 535 members - in a barely manageable cycle of conflicting partisanship, dependent upon their national party leader, their national campaign fund raiser - their President - rarely rising above rancor to view themselves as a Constitutional body with obligations to law and the nation equal to any executive administration.
War Powers, one example, has been consistently undermined by succeeding presidents since World War II, reaching a state whereby today a president can accuse Congress of abetting an enemy by merely exercising its funding oversight under the War Powers Act, even though the Constitution clearly mandates that Congress alone retains the right to declare war. Congress has been unable to limit or end the funding of the Iraq invasion, for example, because the "political risks" are viewed as outweighing the will of the public on this matter. The distinction between legitimately refusing to extend funding for a presidential war action and refusing to "support the troops" has cynically been blurred. Additionally, the executive today enjoys accumulated power from bloated intelligence resources (no matter how faulty) funded by 40 billion taxpayer dollars spent in 16 agencies employing 100,000 agents and analysts, many of whom are increasingly outsourced to private corporations and operating in complete secrecy.
Unchecked and Unbalanced traces the history of this accumulated executive power through the FBI and CIA, for example, since the establishment of those agencies, as well as the evolution of key legal and ethical issues continually at odds with Constitutional rights, such as warrantless "electronic monitoring" of vast numbers of citizens, torture in violation of international law, and "extraordinary rendition" which has come to literally mean kidnapping. The authors relate a couple of horror stories to illustrate how truly bizarre this mission drift has progressed since 9/11. They also disturbingly review the questionable legal methodology they say was used by OLC lawyers - Alberto Gonzales, David Addington, John Yoo - in constructing arguments to justify such executive presumptions of power in the first place:
"Tasked with providing legal opinions for the whole executive branch, the OLC issued a series of rulings from September 2001 onward retrogressing to a monarchical vision of government, with a correlative neutering of the Constitution's checks and balances. During the Cold War, plausible deniability was expanded to hide the internal decision making of the American government, enabling presidents to evade responsibility for covert actions by denying knowledge of them. Now, presidents can evade responsibility a new way: they just say their lawyer said it was legal." [p187]
The executive branch, following preemptive wars resulting from the Bush Doctrine, as well as increasingly unpopular domestic "anti-terror" actions, unchecked for years by an acquiescent legislature, has recently been challenged by court decisions, historic low polling in public opinion, and following the mid-term elections, new majority opposition in Congress. The authors are candid in their critique of the Bush II Administration:
"With an arrogance born of historical amnesia, the Bush Administration invoked 9/11 to claim a power unprecedented on this of the North Atlantic to suspend or wholly circumvent laws passed by Congress barring torture, detention without judicial review, and wiretapping without warrants. Its claims were not simply responses to the threat manifested in 9/11. Rather fifteen years earlier, Dick Cheney and David Addington had made the very same claims for sweeping executive power in their Iran-Contra minority report. September 11 gave them the opportunity to implement this long-cherished vision, and a chance to slander and scare opponents with the smear of disloyalty." [p200]
The enduring quality of the Constitution (in my view) is its unfinished nature: it remains a work in progress, open and flexible to future possibility through continual interpretation under legal process; it is a living document which moves through history adapting to social evolution and progressive change. But progression is possible only if its fundamental assertions, like freedoms of speech, separation of church and state, and structurally separate and balanced governmental powers, remain in tact. Structural continuity is possible in the face of constant war and threats to "national security" only if the Constitution is the first priority of members of Congress, regardless of political party, and even more fundamentally, only when the Constitution remains deeply meaningful to the American people.
"Making the executive supreme makes the nation no safer - either from its enemies or its own worse impulses," the authors conclude: "Indeed, the abiding genius of the Founding Generation was its rejection of the idea that unchecked unilateral power is ever properly vested in any one branch of government. Our government was framed 'to control itself,' as James Madison wrote in the Federalist Papers. 'Ambition must be made to counteract ambition.' Dividing powers between three branches, the Founders harnessed human passions in the cause of limited government."
Schwarz and Huq outline a logical course of corrective actions they think necessary to rebuild the Constitution's checks and balances, but few of the actions advised seem likely (in my view) during in the short months remaining to the Bush II Administration, which means the fundamental problem will not likely be addressed by an incoming executive who will naturally not choose to renege powers accumulated by his or her predecessor. The entire question of alleged illegalities involved throughout the current administration will likely not be pursued, leaving an unchallenged precedent of questionable Department of Justice decisions and recommendations for the next aggressive executive to build upon.
As noted in the book, Benjamin Franklin, was asked while leaving the Philadelphia Constitutional Convention in 1787, "Well, Doctor, do we have a republic or a monarchy?" To paraphrase Franklin's famous response: "You have a republic, Madame, if you can hold on to it."
All of this history, from the Declaration of Independence and US Constitution onward, has become fundamentally menaced in the last half century, and it is not extreme for citizens to conclude the United States faces a critical impasse at this moment, the legal depth of which has been researched and explored in Unchecked and Unbalanced: Presidential Power in a Time of Terror, an important, and disturbing book.
