Tag: executive power

The Great Writ

The BBC has put together an interesting documentary on the writ of habeas corpus, a legal concept most people have heard of, but too few understand and appreciate. You can stream it here.

We should not forget that President Bush and the coterie of lawyers around him tried to advance a theory of executive power that would have made the writ of habeas corpus worthless.  I hasten to add that President Obama has not really disavowed Bush’s claims and so the danger to the great writ has not passed just because Bush has left office.

Related video clip of former Attorney General Alberto Gonzalez here.  Related Cato work here, here,  and here.

The FISA Amendments: Behind the Scenes

I’ve been poring over the trove of documents the Electronic Frontier Foundation has obtained detailing the long process by which the FISA Amendments Act—which substantially expanded executive power to conduct sweeping surveillance with little oversight—was hammered out between Hill staffers and lawyers at the Department of Justice and intelligence agencies. The really interesting stuff, of course, is mostly redacted, and I’m only partway though the stacks, but there are a few interesting tidbits so far.

As Wired has already reported, one e-mail shows Bush officials feared that if the attorney general was given too much discretion over retroactive immunity for telecoms that aided in warrantless wiretapping, the next administration might refuse to provide it.

A couple other things stuck out for me. First, while it’s possible they’ve been released before and simply not crossed my desk, there are a series of position papers — so rife with  underlining that they look like some breathless magazine subscription pitch — circulated to Congress explaining the Bush administration’s opposition to various proposed amendments to the FAA. Among these was a proposal by Sen. Russ Feingold (D-WI) that would have barred “bulk collection” of international traffic and required that the broad new intelligence authorizations specify (though not necessarily by name) individual targets. The idea here was that if there were particular suspected terrorists (for instance) being monitored overseas, it would be fine to keep monitoring their communications if they began talking with Americans without pausing to get a full-blown warrant — but you didn’t want to give NSA carte blanche to just indiscriminately sweep in traffic between the U.S. and anyone abroad. The position paper included in these documents is more explicit than the others that I’ve seen about the motive for objecting to the bulk collection amendment. Which was, predictably, that they wanted to do bulk collection:

  • It also would prevent the intelligence community from conducting the types of intelligence collection necessary to track terrorits and develop new targets.
  • For example, this amendment could prevent the intelligence community from targeting a particular group of buildings or a geographic area abroad to collect foreign intelligence prior to operations by our armed forces.

So to be clear: Contra the rhetoric we heard at the time, the concern was not simply that NSA would be able to keep monitoring a suspected terrorist when he began calling up Americans. It was to permit the “targeting” of entire regions, scooping all communications between the United States and the chosen area.

One other exchange at least raises an eyebrow.  If you were following the battle in Congress at the time, you may recall that there was a period when the stopgap Protect America Act had expired — though surveillance authorized pursuant to the law could continue for many months — and before Congress approved the FAA. A week into that period, on February 22, 2008, the attorney general and director of national intelligence sent a letter warning Congress that they were now losing intelligence because providers were refusing to comply with new requests under existing PAA authorizations. A day later, they had to roll that back, and some of the correspondence from the EFF FOIA record makes clear that there was an issue with a single recalcitrant provider who decided to go along shortly after the letter was sent.

But there’s another wrinkle. A week prior to this, just before the PAA was set to expire, Jeremy Bash, the chief counsel for the House Permanent Select Committee on Intelligence, sent an email to “Ken and Ben,” about a recent press conference call. It’s clear from context that he’s writing to Assistant Attorney General Kenneth Wainstein and General Counsel for the Director of National Intelligence Ben Powell about this press call, where both men fairly clearly suggest that telecoms are balking for fear that they’ll no longer be immune from liability for participation in PAA surveillance after the statute lapses. Bash wants to confirm whether they really said that “private sector entities have refused to comply with PAA certifications because they were concerned that the law was temporary.” In particular, he wants to know whether this is actually true, because “the briefs I read provided a very different rationale.”  In other words, Bash — who we know was cleared for the most sensitive information about NSA surveillance — was aware of some service providers being reluctant to comply with “new taskings” under the law, but not because of the looming expiration of the statute. One of his correspondents — whether Wainstein or Powell is unclear — shoots back denying having said any such thing (read the transcript yourself) and concluding with a terse:

Not addressing what is in fact the situation on both those issues (compliance and threat to halt) on this email.

In other words, the actual compliance issues they were encountering would have to be discussed over a more secure channel. If the issue wasn’t the expiration, though, what would the issue have been? The obvious alternative possibility is that NSA (or another agency) was attempting to get them to carry out surveillance that they thought might fall outside the scope of either the PAA or a particular authorization. Given how sweeping these were, that should certainly give us pause. It should also raise some questions as to whether, even before that one holdout fell into compliance, the warning letter from the AG and the DNI was misleading. Was there really ever a “gap” resulting from the statute’s sunset, or was it a matter of telecoms balking at an attempt by the intelligence community to stretch the bounds of their legal authority? The latter would certainly fit a pattern we saw again and again under the Bush administration: break the law, inducing a legal crisis, then threaten bloody mayhem if the unlawful program is forced to abruptly halt — at which point a nervous Congress grants its blessing.

The Real Story Behind the Chrysler Bankruptcy

If you worry about the abuse of executive power and declining respect among elected officials for the rule of law, you should watch this eloquent illumination of what really went down in the Chrysler bankruptcy earlier this year. The speaker is Richard Mourdock, Treasurer of the state of Indiana. The setting is a Cato Institute policy forum on October 15 about the “sordid details of the Bush/Obama auto industry intervention.”

As state treasurer, Mourdock is the person responsible for investment decisions concerning Indiana’s state employee pension funds, some of which owned a small share of Chrysler’s $6.9 billion in secured debt and some of which opposed the administration’s offer of $.29 on the dollar for that debt. Though these small secured holders were publicly castigated by President Obama as “unpatriotic” and unwilling to sacrifice for the greater good, Mourdock led the effort to stop the “sale” of Chrysler all the way to the U.S. Supreme Court.

Mourdock’s presentation gives a flavor for the tactics employed by the  Obama administration to “encourage” senior, priority creditors to back off their claims so that chosen parties could take priority—tactics that included backroom reminders that some of those creditors had received and might seek more TARP funding, threats of bringing the full weight and measure of the White House press office to bear down on dissenters, public condemnation, and other forms of arm-twisting most Americans would find unseemly for a U.S. presidential administration.

At the Cato event, Mr. Mourdock was joined by University of Pennsylvania Law School professor and corporate law expert David Skeel, who demonstrated quite clearly that the “sale” of Chrysler, as orchestrated by the Obama administration under cover of Chapter 11 bankruptcy reorganization, was indeed a sham sale. Skeel’s presentation begins at 20:15 of this video.

If you want to have a better sense of what’s going on in Washington (or to affirm your worries), I recommend you watch Mourdock here, listen to Mourdock here, read the Indiana Pensioners’ petition for Writ of Certiorari (appeal to the Supreme Court), and read the Cato Institute’s amicus brief in support of the Indiana pensioners here.

Wednesday Links

  • Senate Judiciary Committee abandons hope of bringing any real change to the Patriot Act. Julian Sanchez in The Nation: “The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place.”

The Emperor’s Green Clothes

According to Thursday’s New York Times, “the Obama administration announced on Wednesday that it was moving forward on new rules to regulate greenhouse gas emissions from hundreds of power plants and large industrial facilities.”

President Obama has said that he prefers a comprehensive legislative approach to regulating emissions and stemming global warming, not a piecemeal application of rules, and that he is deeply committed to passage of a climate bill this year.

But he has authorized the Environmental Protection Agency to begin moving toward regulation, which could goad lawmakers into reaching an agreement.

In the book that popularized the phrase “the Imperial Presidency,” historian Arthur Schlesinger Jr. focused overwhelmingly on the vast growth of presidential power in foreign affairs. But as an inveterate New Dealer, Schlesinger had a blind spot where it came to the Emperor’s burgeoning powers at home.

The Supreme Court’s virtual abandonment of the nondelegation doctrine after 1935 paved the way for the modern administrative state, in which Congress all too eagerly cedes legislative power to the executive branch. As the Obama administration’s latest actions on global warming show, the Imperial Presidency comes in green, too. From my column in the Washington Examiner this week:

James Madison believed that there could be “no liberty where the legislative and executive powers are united in the same person.” And yet, here we are, with those powers united in the person of a president who has pledged to heal the planet and stop the oceans’ rise.

The Times article makes clear that Obama won’t push his authority under the Clean Air Act (or the Supreme Court’s interpretation thereof in Mass. v. EPA) as far as he might, yet: “By raising the standard to 25,000 tons, the new rule exempts millions of smaller sources of carbon dioxide emissions like bakeries, soft drink bottlers, dry cleaners and hospitals.” Instead, the administration plans to use its power under the CAA as a hammer to hold over Congress’s head, pushing it to act on cap and trade.

But eventually, Obama could push that authority even further. According to a comprehensive legal analysis issued by NYU Law School’s Center for Policy Integrity“if Congress fails to act, President Obama has the power under the Clean Air Act to adopt a cap-and-trade system.” (Emphasis mine). (Note in the link above that Matt Yglesias, dedicated opponent of Bush’s war-on-terror executive power grabs, doesn’t seem exactly upset at the prospect of cap-and-trade via executive fiat.)

True, such a move would be litigated to death, and the forests of paperwork it would generate might result in a carbon footprint larger than whatever it abated. Nonetheless, we ought to be disturbed by the notion that in a democratic country the president could make such a move without an up or down vote from Congress. And, as I suggest in the Examiner piece, it ought to make conservatives question their longtime conviction that presidential control over administrative agencies is a reliable method for decreasing the country’s regulatory burden:

After 9/11, the phrase “unitary executive theory” (UET) came to stand for the idea that the president can do whatever he pleases in the national security arena. But it originally stood for a humbler proposition: UET’s architects in the Reagan administration argued that the Constitution’s grant of executive power to the president meant that he controlled the executive branch, and could therefore rein in aggressive regulatory agencies.

In an era when Republicans held a virtual lock on the Electoral College, that idea had some appeal. But as Elena Kagan, now President Obama’s Solicitor General, pointed out in a 2001 Harvard Law Review article, there’s little reason to think that “presidential supervision of administration inherently cuts in a deregulatory direction.”

… [A]s Kagan notes, after the Democrats lost control of Congress in 1994, President Clinton used his regulatory authority unilaterally to show progress, pushing “a distinctly activist and pro-regulatory agenda.” As Obama’s popularity erodes, he may come to like the idea of being the “decider.”

Good News: 9/11 Didn’t ‘Change Everything’

On the eighth anniversary of the terrorist attacks on New York and D.C., things are going much better than most of us dared hope in the initial aftermath of that horrible day.  We’re still a secure, prosperous, and relatively free country, and the fear-poisoned atmosphere that governed American politics for years after 9/11 has thankfully receded.

Not everyone’s thankful, however.  Boisterous cable gabber Glenn Beck laments the return to normalcy. The website for Beck’s “9/12 Project” waxes nostalgic for the day after the worst terrorist attack in American history, a time when “We were united as Americans, standing together to protect the greatest nation ever created.” Beck’s purpose with the Project?  “We want to get everyone thinking like it is September 12th, 2001 again.”

My God, why in the world would anyone want that?  Yes, 9/12 brought moving displays of patriotism and a comforting sense of national unity, but that hardly made up for the fear, rage and sorrow that dominated the national mood and at times clouded our vision. 

But Beck’s not alone in seeing a bright side to national tragedy.  Less than a month after people jumped from the World Trade Center’s north tower to avoid burning to death, David Brooks asked, “Does anybody but me feel upbeat, and guilty about it?” “I feel upbeat because the country seems to be a better place than it was a month ago,” Brooks explained, “I feel guilty about it because I should be feeling pain and horror and anger about the recent events. But there’s so much to cheer one up.” 

One of the things that got Brooks giddy was liberals’ newfound bellicosity. That same week, liberal hawk George Packer wrote:

What I dread now is a return to the normality we’re all supposed to seek: instead of public memorials, private consumption; instead of lines to give blood, restaurant lines… ”The only thing needed,” William James wrote in ”The Moral Equivalent of War,” ”is to inflame the civic temper as past history has inflamed the military temper.” I’ve lived through this state, and I like it.

There’s something perverse, if not obscene, in “dreading” the idea that Americans might someday get back to enjoying their own lives.  “Private consumption!”  “Restaurant lines!”  The horror!  The horror!

Like Brooks’s National Greatness Conservatives, a good many progressives thought 9/11’s national crisis brought with it the opportunity for a new politics of meaning, a chance to redirect American life in accordance with “the common good.”  Both camps seemed to think American life was purposeless without a warrior president who could bring us together to fulfill our national destiny. 

That’s why prominent figures on the Right and the Left condemned George W. Bush’s post-9/11 advice to “Enjoy America’s great destination spots.  Get down to Disney World in Florida.  Take your families and enjoy life, the way we want it to be enjoyed.”  As Jeremy Lott notes, “in his laugh riot of a presidential bid,” Joe Biden repeatedly condemned Bush for telling people to “fly and go to the mall!”  A little over a year ago, asked to identify “the greatest moral failure of America” John McCain referenced Bush’s comments when he answered that it was our failure sufficiently to devote ourselves “to causes greater than our self interest.”   

True, Bush’s term “destination spots” is a little redundant; but otherwise, for once, he said exactly the right thing.  And of all the many things to condemn in his post-9/11 leadership, it’s beyond bizarre to lament Bush’s failure to demand more sacrifices from Americans at home: taxes, national service, perhaps scrap-metal drives and War on Terror bond rallies?

National unity has a dark side.  What unity we enjoyed after 9/11 gave rise to unhealthy levels of trust in government, which in turn enabled a radical expansion of executive power and facilitated our entry into a disastrous, unnecessary war. 

In his Inaugural Address, Barack Obama condemned those “who question the scale of our ambitions, who suggest that our system cannot tolerate too many big plans.” “Their memories are short,” he said, “for they have forgotten what this country has already done, what free men and women can achieve when imagination is joined to common purpose and necessity to courage.”

Riffing off of Obama’s remarks, Will Wilkinson wrote:

Can you recall the scale of our recent ambitions? The United States would invade Iraq, refashion it as a democracy and forever transform the Middle East. Remember when President Bush committed the United States to “the ultimate goal of ending tyranny in our world”? That is ambitious scale.

Not only have some of us forgotten “what this country has already done … when imagination is joined to a common purpose,” it’s as if some of us are trying to erase the memory of our complicity in the last eight years — to forget that in the face of a crisis we did transcend our stale differences and cut the president a blank check that paid for disaster. How can we not question the scale of our leaders’ ambitions? How short would our memories have to be?

Oddly, even Glenn Beck seems to agree, after a fashion.  The 9/12 Project credo celebrates the fact that ”the day after America was attacked, we were not obsessed with Red States, Blue States, or political parties.”  And yet Beck has called on “9/12’ers” to participate in tomorrow’s anti-Obama “tea party” in D.C. 

On the anniversary of 9/11, what’s clear is that, despite the cliche, September 11th didn’t “change everything.”  In the wake of the attacks, various pundits proclaimed “the end of the age of irony” and the dawning of a new era of national unity in the service of government crusades at home and abroad.  Eight years later, Americans go about their lives, waiting in restaurant lines, visiting our ”great destination spots,” enjoying themselves free from fear — with our patriotism undiminished for all that.  And when we turn to politics, we’re still contentious, fractious, wonderfully irreverent toward politicians, and increasingly skeptical toward their grand plans.   In other words,  post-9/11 America looks a lot like pre-9/11 America.  That’s something to be thankful for on the anniversary of a grim day.

The White House as Animal Farm

As George Orwell’s Animal Farm closes, the revolutionary pigs have been transformed into oppressive humans.  It took some time to occur on the Animal Farm.  It’s taken just a few months in the Obama White House.

Reports McClatchy Newspapers:

President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama’s legal arguments repeatedly mirror Bush’s: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

“It’s putting up a veritable wall around the White House, and it’s so at odds with Obama’s campaign commitment to more open government,” said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist.

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration’s legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

“There is no question that there are (durable) cultures and mindsets in agencies,” Weismann acknowledged.

Conservatives once opposed executive aggrandizement.  Then with George W. Bush in office, they embraced the idea of the presidency as a kind of elective monarchy.  With President Barack Obama now pushing the executive power grab, will conservatives rediscover their inner-Constitution and again join the barricades for liberty?