Again the Imperial Presidency?

September 9, 2014–In the bad old days of the late Vietnam war there was huge public concern about the runaway presidency– “Imperial Presidency.” The Johnson administration stood on the flimsy Gulf of Tonkin resolution as legal authority for a war. When it was repealed the Nixon administration claimed the war was legal because Congress had voted money for it, and ultimately asserted it waged war for the purpose of recovering American prisoners. As the hoary arguments became more and more arcane–with assertions the SEATO Treaty was somehow a binding pledge to fight, and the Geneva agreements, which the United States itself had violated, gave reason for war with Hanoi. Considerable public policy action followed in the United States Congress–which successively banned the use of budget money for parts of the war, the use of American troops outside of South Vietnam, finally banning war itself, or at least whatever parts of resort to force may be considered constrained by the War Powers Resolution. President Gerald Ford vetoed that bill. It was passed by a two-thirds majority of Congress and became law over his objection.

Those events of the 1970s can be viewed as the high water mark of Congress in its efforts to compel executive branch accountability. In the 80s, when then-congressmen Dick Cheney complained of the emasculated presidency, Ronald Reagan’s minions could, with virtual impunity, conduct a multi-front covert operation right out of the White House.  In the 1990s, in conjunction with the Balkan civil war, Republican lawmakers accused President Bill Clinton of something very similar.

But the executive power of the 80s and the 90s pales next to the assertions of the present era. The worst aspect of the events following 9/11 has been the arrogation of power in the White House, and the extension of that power, in the name of a false “national security,” to every facet of public life, all the while lambasting those who object as somehow unpatriotic.

A prime example of the new arrogance of power is–wait for it!– the NSA dragnet eavesdropping program. (You knew we wouldn’t go too far without bringing that up!) A few days ago the Obama administration declassified and released portions of Justice Department opinions that were compiled in 2004 to certify the legality and constitutionality of the NSA spying on all Americans. Stripped of legal mumbo-jumbo, the rationale in those Justice Department memos reveals the Imperial Presidency back in full force. The memos were then used to convince the Foreign Intelligence Surveillance Court (FISC), the NSA’s private star chamber, to sanction the dragnet. In a handsome display of circular self-justification, the NSA has forever since maintained that FISC’s “independent” opinion amounted to a real judicial review, that FISC and (an ill-informed) Congress were all on-board with the spying, and that the surveillance was fully accountable to all branches of government.

Let’s look at the actual arguments. The Office of Legal Counsel, the Justice branch which does this work, in my opinion has made a good case for why it should be cut back heavily. Time after time in the Bush and Obama administrations, under different chiefs and assorted attorneys-general, this unit has produced legal “analyses” that are little more than rationalizations for things OLC lawyers know government agencies want to do. This was the same unit that produced the notorious Justice Department “torture memos” and, in this case, the eavesdropping opinions take much the same line.

From the standpoint of the Constitution and the law, the problem was that there was a law, on the books for years, that prohibited the very thing which President George W. Bush ordered in October 2001. To square that circle the lawyers went to the Constitution to cite the president’s power as commander-in-chief. They combined that with the 9/11 resolution Congress had passed to assert that Congress had “explicitly” authorized what the NSA was doing. Of course, Congress had done no such thing–and only a handful of people, all of them prohibited from saying anything to anyone else–knew what the NSA was up to. The congressional resolution talked about using “armed force” against Al Qaeda. NSA spying was not a “force” except in the sense that it represents a Pentagon appendage, and eavesdropping on Americans is not Al Qaeda. The lawyers rely upon stretching logic to assert that any act (not an “instrumental” act, but in fact a “desirable” one) required to make use of force is subsumed in the approval of force, even if it is otherwise against the law. Similar sorts of logic were used to disregard the several laws which make torture a crime.

The OLC lawyers put the Constitution above the law, arguing that FISA restrictions that might obstruct a president from carrying out his functions as commander-in-chief are “impermissible.” That logic leads to a different problem, however, in that the Fourth Amendment prohibits unreasonable searches and seizures of exactly the type of the NSA dragnet. Justice lawyers performed a “balancing test” which compared the theoretical value of intelligence gained from eavesdropping (considerable for a real target, but almost worthless in terms of the actual product of the NSA STELLAR WIND program–which they left out of the equation) against the individual’s privacy protection (as weakened by a “well recognized . . . variety of governmental interests–including routine law enforcement and foreign-intelligence gathering.”) to find the latter without merit. This is a complete straw-man argument. Moreover, the Justice lawyers ignored the fact that the FISA law already provided a mechanism (the request for a warrant) to specifically test the competing interests. That was the balancing test the NSA wanted to get rid of.

The Bush administration was very happy with what the lawyers told them they could get away with. They even went to Congress under false pretenses to seek further widening of their surveillance powers. Mr. Obama did not rock the boat. It took the revelations of the Snowden affair to even raise the issue. The absence of a self-correcting mechanism is a plain indicator of a system out of control. End this.

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