Reason Magazine - Topics > Executive Power

Support 40 More Years of Executive Branch Skepticism

matt.welch@reason.com (Matt Welch) — Tue, 23 Sep 2008 17:32:00 EDT

After Sept. 11, 2001, many publications and opinion journalists chose deference to the U.S. executive branch over getting too worked up about the very civil liberties and openness that made America so powerful in the first place. Not reason. In the first issue after the attacks, the magazine asked "Will civil liberties be a casualty in the War on Terrorism?", warned presciently over the attempts by some to launch a new Cold War, and began a seven-year run of responsibly questioning executive power-mongering in the struggle against Islamic extremism.

This was no new approach for reason. For 40 years now, from Lyndon Baines Johnson to Richard Milhous Nixon to George Walker Bush, the magazine of free minds and free markets has been equally free with skepticism whenever the White House argued that with great power comes great liberty. For instance, Reason Enterprises co-founder Manuel Klausner, along with Henry Hohenstein, published an interview with Pentagon Papers leaker Daniel Ellsberg as far back as June 1973, conducted when the former Defense Dept. analyst was still facing trial, and a potential life sentence, for espionage. (A trial at which a freshly returned ex-POW named John Sidney McCain had agreed to testify for the prosecution.)

As part of our week-long webathon, where we are asking those of you enjoy reason to vote early and often with your pocketbook (see a complete list of donation levels, and various goodies you'll receive, here) we'll be presenting some of these Greatest Hits. Click here for the Ellsberg interview. A taste:

REASON: Did you also have a purpose in disclosing the Pentagon Papers of trying to show any detriment in the Government's policy of classifying information?
ELLSBERG: Yes. A very important secondary objective-second only to the objective of getting a change in our Vietnam policy-was the hope of changing the tolerance of Executive secrecy that had grown up over the last quarter of a century both in Congress and the courts and in the public at large. It seemed to me that our Vietnam policy reflected an accumulation of Executive power, which in turn had exploited very critically this tolerance of Executive secrecy. In other words, I felt that without the widespread willingness to allow the Executive to keep secret the mass of information about its own operations and intentions, it wouldn't have been possible for the Executive to steal away so much power from the Congress and the public and to free itself from the kinds of checks and balances that were intended in the Constitution. Precisely because Congressmen realized over the years that they lacked the information on which to criticize Executive policy or to suggest changes, they have opted out from an active role in the field of foreign policy. But by the same token, it was the Executive Branch itself which was denying them this information. So that what we saw was one more confirmation of the axiom on which I think our Constitution was originally built, which is, "power corrupts-even Americans."

No matter who wins the presidency in November, you can count a president who will learn to love the Executive. That's why you'll need reason as much in 2009 as you did in 2002, or even 1972. Here's my video pitch for reason-style journalism:

Once again, please donate today!

I Am the Law

info@reason.com (Damon W. Root) — Tue, 12 Aug 2008 12:00:00 EDT

Prior to September 11, 2001, few Americans had any reason to know the name John Yoo. A law professor and former clerk for Supreme Court Justice Clarence Thomas, Yoo was just two months into his job as assistant attorney general in the Justice Department's Office of Legal Counsel when the terrorist attacks occurred. In the years since, however, his handiwork has become impossible to ignore.

Most notably, Yoo drafted the infamous 2002 "torture memo," which, among other things, maintained that the president could not be constitutionally prohibited from ordering torture during wartime, no matter what existing American law had to say about it. More generally, Yoo emerged as a highly effective advocate of the so-called unitary executive, the theory that by vesting "the executive power" in the presidency, the Constitution equipped the commander in chief with the "inherent" authority to go to war without congressional approval, nullify treaties, ignore the courts, and much more.

Since returning to academia in 2003, Yoo has remained a vocal champion of untrammeled executive authority. His latest effort, a Charleston Law Review article titled "Andrew Jackson and Presidential Power," is particularly outspoken. Not only does Yoo offer a flattering profile of America's domineering and controversial seventh president, he recasts him as a none-too-subtle precursor of Yoo's embattled former boss, George W. Bush.

As Yoo tells it, Jackson "reinvigorated the Presidency," transforming it into "the direct representation of the American people." As such, the president was uniquely empowered to see that "the will of the people should prevail, regardless of existing governmental and social arrangements."

To put it another way, Jackson saw himself as above the law. Which perhaps explains why Yoo is so interested in claiming him. As the legal scholar David Cole has noted, "Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same—the president can do whatever the president wants."

In Yoo's mind, Jackson's two greatest political victories—his 1832 fight against the Second Bank of the United States and his 1832-33 campaign against South Carolina's threatened secession over the "tariff of abominations"—apparently justify this very idea. As Yoo writes, both accomplishments stemmed from Jackson's "vigorous exercise of his executive powers."

It's hard to disagree with that last point. Jackson's veto of the bill reauthorizing the national bank, for instance, featured a message to Congress that broke with all previous tradition, spelling out for the first time a sitting president's legislative preferences. Opponent Henry Clay described this attempt to influence Congress as "hardly reconcilable with the genius of representative government." Similarly, Jackson responded to South Carolina's talk of nullifying federal law with the threat of overwhelming violence, declaring, "On your unhappy State will inevitably fall all the evils of the conflict you force upon the Government of your country."

Yet aside from being driven by Old Hickory's volatile personality, his two positions share nothing in common. On the bank issue, Jackson was something of a libertarian, arguing that the institution granted monopoly powers to politically connected elites. Yet when it came to South Carolina's talk of secession, Jackson was a ferocious nationalist, threatening to unleash steel and fire to preserve the union.

His politics, in other words, were all over the place, held together only by his considerable belief in his own righteousness. But why would anyone accept that as a reason to trust a single, fallible human being with unilateral war making authority?

Yoo offers an unpersuasive and unsatisfying account of Jackson's most notorious achievement as president: his central role in Georgia's expulsion of the Cherokee Indians, the shameful episode that culminated in the 1838 Trail of Tears. While acknowledging Jackson's "great responsibility for the tragedy," Yoo adds, "Under the standards of his day, Jackson's views can be said to represent the views of the voting public."

Yet as historian Amy Sturgis has argued, Jackson's "policy of compulsory removal of American Indians—besides enacting a national plan for what was essentially ethnic cleansing, coupled with the forcible redistribution of property from its rightful owners to those who had not earned it—was wildly at odds with the checks and balances inherent in the federal system." After the Supreme Court held Georgia's anti-Cherokee laws to be unconstitutional in Worcester v. Georgia (1832), Jackson simply refused to enforce the decision (as did Georgia), declaring that the Supreme Court was entitled only to "such influence as the force of their reasoning may deserve."

Imagine if President Bush had responded that way to the Court's recent decision in Boumediene v. Bush (2008), which recognized habeas corpus rights for enemy combatants held at Guantanamo Bay. Under Yoo's interpretation of both law and history, Bush would have been perfectly justified in doing so.

Thankfully, this brand of Jacksonian conservatism hasn't completely taken hold. But there's nothing comforting in the fact that Yoo's arguments still hold sway in the highest reaches of power. If Old Hickory teaches us anything, it's to beware of any leader claiming to be above the law.

Damon W. Root is an associate editor of reason.

"Barack Obama is betraying his promise of change and is in danger of becoming just another political hack."

info@reason.com (Damon W. Root) — Wed, 23 Jul 2008 14:25:00 EDT

Those are the words of lefty journalist Robert Scheer, who comes out swinging against the candidate of change in a great rant over at The Nation. A sample:

Both candidates supported the Foreign Intelligence Surveillance Act, which has everything to do with violating the basic freedoms of our citizens and nothing to do with making them safer....

To use the failure of the President to pay attention to his daily-briefing warning of an impending attack as an excuse for shredding the fundamental rights of our citizens is appallingly illogical. Providing legal protection to the government and the telecommunications giants for unfettered spying on the people does not represent the change we desperately need.

And a quick history lesson, too:

Obama has one-upped McCain's bluff to win in Iraq by raising the prospect of an even more deadly quagmire in Afghanistan. If his goal was to remind us that Democrats have been more often the party of irrational wars than the Republicans, he has succeeded all too well.

Whereas Dwight Eisenhower refused to wage war against Vietnam and Cuba, it was John Kennedy, that charmer of change, who launched both of those military disasters. And then there was that crafty "progressive," Lyndon Baines Johnson, who, in order to defeat Barry Goldwater, the right-wing menace of his day, lied about a nonexistent attack in the Gulf of Tonkin to justify escalating a war that killed almost 59,000 Americans and 3.4 million Indochinese.

Whole thing here.

How Much Process Is Due for Accused Terrorists?

jsullum@reason.com (Jacob Sullum) — Fri, 18 Jul 2008 11:39:00 EDT

Yesterday a federal judge said the Pentagon may proceed with its trial of Salim Hamdan, Osama bin Laden's former driver, despite his lawyers' argument that procedural protections for defendants appearing before military tribunals at Guantanamo Bay remain constitutionally inadequate. Among other things, they object to the admissibility of hearsay and of evidence obtained through what The New York Times diplomatically calls "coercive interrogation methods." They also argue, pretty plausibly, that prosecuting Hamdan for conspiracy and providing material support for terrorism, offenses that were not added to the list of crimes that could be tried by military courts until four years after he was captured, violates the Constitution's prohibition of ex post facto laws. But at least Hamdan, a Yemeni who was captured in Afghanistan in 2002 and has been held at Guantanamo since then, will get to raise these issues in federal court after he's convicted. (Is there any point in pretending he might not be convicted?) Not so Ali al-Marri, a legal U.S. resident from Qatar who was arrested in Peoria, where he was studying computer science, in December 2001. The government has no plans to prosecute al-Marri; it just wants to keep him locked up.

In June 2003, a month before al-Marri was scheduled to be tried on charges of credit card fraud and lying to the FBI, President Bush issued an order that described him as an Al Qaeda operative and transferred him to military custody. Since then he has been imprisoned at the Navy brig in Charleston, South Carolina. This week the U.S. Court of Appeals for the 4th Circuit agreed that President Bush has the authority to classify people arrested in the U.S. as enemy combatants and detain them indefinitely. It reversed a contrary 2007 ruling by a 4th Circuit panel that said the government had to transfer al-Marri back to civilian custody, after which he could be tried for whatever crimes he may have committed. "The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the court said then, adding that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution."

In this week's decision (PDF), by contrast, five members of the court said Congress implicitly authorized the military detention of suspected Al Qaeda members, including those arrested in the United States, when it approved the use of military force against the terrorist network and its Taliban allies. Therefore, "if the Government's allegations about al-Marri are true," his detention is legal. A different five-judge majority said that, assuming the other majority is right about the president's legal authority, al-Marri "has not been afforded sufficient process to challenge his designation as an enemy combatant." The government's case against him consisted of nothing but a 2004 declaration by an intelligence official asserting that al-Marri was an al-Qaeda "sleeper agent" who had agreed to "facilitate terrorist activities and explore disrupting this country's financial system through computer hacking."

Now the Supreme Court, which has said "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," will have to decide whether that right also applies to legal residents and exactly what it entails. Civil libertarians may not like the procedures that ultimately emerge from all this litigation. But at least the courts have definitively rejected the Bush administration's circular "enemy combatant" logic, whereby people accused of terrorist connections lose any right to challenge the accusation because terrorists don't deserve due process.

Into the Thicket

info@reason.com (Damon W. Root) — Tue, 15 Jul 2008 12:00:00 EDT

In a celebrated 1958 lecture delivered at Harvard University, federal appeals court judge and noted legal scholar Learned Hand famously likened the United States Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the separation of powers and compromise the very idea of democratic rule. "When I go to the polls," Hand observed, "I have a satisfaction in the sense that we are all engaged in a common venture." Were the Supreme Court to have the final say on every political question, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."

Fast-forward half a century to the recent conclusion of the Court's 2007-2008 term, and you'll find Hand's complaint is still alive and well on both sides of the aisle. For instance, former Republican Rep. Tom DeLay (R-Texas) responded to Boumediene v. Bush, which recognized habeas corpus rights for prisoners held as enemy combatants at Guantanamo Bay, by arguing that the Court "has declared itself the final authority on making war, incarcerating enemy combatants, and, indeed, on the American people's right to self-government." In short, "this is not judicial activism. It is judicial tyranny."

Though he employed a necessarily lighter touch, Chief Justice John Roberts took much the same line, criticizing the Boumediene majority in his dissent for needlessly and arrogantly substituting its "unelected, politically unaccountable" views for those of "the people's representatives." According to Roberts, "one cannot help but think...that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

On the other side of the ideological divide, Justice John Paul Stevens was busy chastising the Court's conservatives for entering the "political thicket" of gun control in District of Columbia v. Heller, where the majority struck down Washington, D.C.'s sweeping handgun ban and held that the Second Amendment protects an individual right to keep and bear arms, a decision that Stevens found deeply troubling. "No one has suggested that the political process is not working exactly as it should," he wrote, employing language long associated with the case against judicial activism. "It is, however, clear to me, that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."

As it happens, Roberts and Stevens each have a valid point. In both the habeas corpus and Second Amendment decisions, the Supreme Court did nullify popularly enacted legislation, overruling the expressly stated preferences of lawful representatives and other public officials. And it's a good thing that the Court did. With the Bush administration asserting the "inherent" authority to wage war and detain certain prisoners indefinitely without trial, and with Congress apparently more than willing to cede these and other war powers to the executive branch, it was the Court's basic constitutional duty to act as a check against such abuse.

By the same token, with Washington, D.C.'s notoriously inept local government perfectly willing to leave law-abiding residents unarmed and thus unable to defend their own homes, the job of restoring the Second Amendment's lost liberties necessarily fell to the judiciary. In both cases, the Court simply undertook what James Madison had in mind when he described the judicial branch as "an impenetrable bulwark against every assumption of power in the legislative or executive." Judges, in other words, are supposed to strike down unconstitutional laws and to discipline overreaching officials. That's true whether such laws are popular with a majority of people or not. And dangerous laws only get worse when they're embraced by the population.

If anything, the courts today should be striking down far more laws than they do. Indeed, if there is one common thread to the Supreme Court's history, it's the fact that its worst decisions have centered on deference to government action, not on hostility to the will of the majority. For instance, there was Plessy v. Ferguson (1896), where the Court upheld Louisiana's Jim Crow railroad regulations; Korematsu v. United States (1944), where the Court upheld Franklin Roosevelt's wartime internment of Japanese Americans; and Kelo v. City of New London (2005), where the majority upheld that Connecticut municipality's abuse of its eminent domain powers. A little judicial activism in such cases would have gone a long way towards protecting individual liberty.

Which brings us back to the present. One of the most important things to take away from the Court's most recent term, evident in decisions ranging from Boumediene and Heller to Davis v. Federal Communications Commission, where the majority struck down parts of the Bipartisan Campaign Reform Act for restricting political speech, is that the vigorous use of judicial review isn't just legitimate, it's necessary to help safeguard our rights.

Damon W. Root is an associate editor of reason.

Individual Rights and the Supreme Court

info@reason.com (Damon W. Root) — Tue, 01 Jul 2008 18:25:00 EDT

George Mason's David Bernstein wrote a great article for the Cato Institute last week making the necessary point that the Supreme Court's liberals aren't necessarily its most reliable defenders of individual rights. As Bernstein notes, the dissents in D.C. v. Heller presented "the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides." As he notes, there's also liberal malfeasance on cases dealing with election-related speech, eminent domain abuse, racial classifications, and "hate speech" to keep in mind.

The only thing I would add is that the Court's conservatives aren't exactly eager to take up the slack. As Radley Balko pointed out, Chief Justice John Roberts and Justice Samuel Alito are

judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn't an exaggeration.

Justice Antonin Scalia, of course, voted the wrong way in Gonzales v. Raich, siding with the majority against California's medical marijuana law. And in his ugly Boumediene v. Bush dissent, Scalia viciously asserted that recognizing habeas corpus for enemy combatants held at Guantanamo Bay "will almost certainly cause more Americans to be killed."

Perhaps it goes without saying, but wouldn't a few genuine libertarians be a nice improvement?

Would President McCain Obey the Law?

jsullum@reason.com (Jacob Sullum) — Wed, 25 Jun 2008 13:00:00 EDT

In asking Congress to allow warrantless surveillance of Americans' international communications, President Bush is seeking permission to do something he believes he does not need permission to do. Like a parent confronted by a defiant teenager, Congress is giving in while insisting it isn't.

Federal law already says the government may listen to the phone calls or read the email of people in the United States only if it follows procedures established by statute. The amendments to the Foreign Intelligence Surveillance Act (FISA) approved by the House last week say it again. Twice. In effect, Congress is saying, "We mean it. Seriously."

In Congress' defense (did I really say that?), it's hard to think of an effective statutory response to a president who, like Bush, feels free to ignore the law when it forbids him to do what he thinks is necessary to fight terrorism. The only solution to that problem is to replace Bush with a president who is more inclined to respect the rule of law and the separation of powers.

Although he may change his tune if he's elected (especially since he'll face a Democrat-controlled Congress disinclined to check his power), Barack Obama at least claims to believe in these principles. "As president," he told The Boston Globe in December, "I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes."

The Illinois senator disappointed many of his supporters by backing the FISA amendments, which not only approve warrantless wiretaps but grant retroactive immunity to the telecommunications companies that assisted the Bush administration's illegal post-9/11 surveillance program. Still, he emphasized that Congress has the authority to restrict or rescind the president's spying powers.

"Under this compromise legislation," Obama said, "the president's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance, making it clear that the president cannot circumvent the law and disregard the civil liberties of the American people."

By contrast, Obama's straight-talking opponent, John McCain, has vacillated on this issue and now seems unwilling to give a straight answer to the question of whether, as president, he would obey the law. "I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is," McCain told the Globe in December. "I don't think the president has the right to disobey any law."

Yet a McCain adviser contradicted that position in a May letter to National Review Online, saying the Arizona senator believes "neither the Administration nor the telecoms need apologize for actions that most people...understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001." He added that "John McCain will do everything he can to protect Americans from [terrorist] threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution."

The reference to Article II implies that the president has constitutional authority to flout statutory restrictions on wiretaps, the very position that McCain disavowed in December. Pressed by The New York Times to explain the blatant contradiction, a campaign spokesman wrote in an email message, "To the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise." Thanks for clearing that up.

In response to the Times story, McCain himself claimed "it's ambiguous as to whether the president acted within his authority" when he ordered the warrantless wiretaps. No more need be said on the subject, according to McCain, because we should "move forward" instead of "looking back." The question for voters is whether they want to move forward with a president whose commitment to obey the law is ambiguous.

Coup Calling

mriggs@reason.com (Mike Riggs) — Mon, 23 Jun 2008 14:42:00 EDT

Sunday’s Washington Post featured an op-ed by Paul Collier, professor of economics at Oxford University and author of The Bottom Billion, who advocates for a coup in Zimbabwe:

So how can the grossly excessive powers of the Mugabes and Shwes of the world be curtailed? After Iraq, there is no international appetite for using the threat of military force to pressure thugs. But only military pressure is likely to be effective; tyrants can almost always shield themselves from economic sanctions. So there is only one credible counter to dictatorial power: the country's own army.

Collier wisely notes that the international community has lost its “appetite” for military interventionism, not only in places where it has failed—Iraq and Afghanistan, most recently—but also in places where human rights abuses are happening and Western nations don't have a clue how to curb them—Darfur, Tibet, Myanmar, Equitorial Guinea, Democratic Republic of Congo, and well, Zimbabwe.

Regardless of the U.N.’s reticence, Collier argues, a coup backed by Europe or America, and led by the opposition party, Movement for Democratic Change (MCD) and Zimbabwe’s military discontents, could take Zimbabwe from dictatorship to democracy quicker than an election:

A truly bad government in a developing country is more likely to be replaced by a coup than by an election: Mugabe will presumably rig the runoff vote scheduled for Friday by intimidation. Or he could follow the example of the last Burmese dictator, who held an election, lost and simply ignored the result.

Calls for a coup are expressions of frustration that Zimbabwe has devolved from the most economically promising country in Black Africa to the most economically depressed, but violent coups in Uganda, Ghana, Nigeria, Togo, and Congo (to name but a few) left those countries worse off than before their militaries took the reigns. Ironically, four years ago Paul Collier wrote a very different piece for Foreign Policy, which noted coups occur frequently—and fail just as often:

From 1956 to 2001, only three nations (Botswana, Cape Verde, and Mauritius) did not experience any coups or coup attempts. Overall, 30 African nations experienced 80 successful coups in that period; all of these states, except for the Seychelles, also faced failed coups and plots. Yet coups usually settled nothing; rather, they encouraged other military factions to try their luck. Indeed, 89 percent of African coup attempts during this period targeted military regimes that had themselves staged successful coups earlier.

There’s also the issue of who could legitimately back a coup in Zimbabwe: A unilateral western presence would come across as self-interested, geopolitical meddling at worst, waxing Colonial at best; a multilateral force would likely drown in its own bureaucratic bumbling. There's also the African Union and/or South Africa, but where are they now, and where were they three months ago when the assassinations started?

With yesterday’s news that Morgan Tsvangirai of the MDC—the only viable opposition candidate in Zimbabwe’s upcoming presidential election—has decided to drop out of the race after a rash of state-sponsored assassinations and beatings, now’s the time to reconsider effective, responsible, and nonviolent methods for promoting economic and personal freedom at home and abroad.

Associate Editor Dave Weigel wrote here about Mugabe's campaign to keep Tsvangirai behind bars.

Would President McCain Obey the Law? 'It's Ambiguous.'

jsullum@reason.com (Jacob Sullum) — Wed, 11 Jun 2008 18:30:00 EDT

In a column I wrote a couple of months ago, I noted that John McCain seemed to have a less expansive view of presidential authority than George W. Bush. Now the distance between them seems to be shrinking. In a recent letter to National Review Online, McCain adviser Douglas Holtz-Eakin reported that the Arizona senator believes President Bush acted within his constitutional authority when he violated the Foreign Intelligence Surveillance Act (FISA) by approving warrantless monitoring of international communications involving people in the United States. According to Holtz-Eakin, who was responding to an NRO post by Andrew McCarthy that questioned whether McCain was sufficiently supportive of Bush's position on this issue, the presumptive Republican presidential candidate believes "neither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001."

Holtz-Eakin added that as president, "John McCain will do everything he can to protect Americans from [terrorist] threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution." The reference to Article II clearly implies that McCain would feel free to violate any statute he believed impeded his ability to conduct anti-terrorist surveillance.

As The New York Times noted on Friday, that position directly contradicts the one McCain took in response to questions about executive power posed by The Boston Globe last December:

Mr. McCain was asked whether he believed that the president had constitutional power to conduct surveillance on American soil for national security purposes without a warrant, regardless of federal statutes.
He replied: "There are some areas where the statutes don't apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is."
Following up, the interviewer asked whether Mr. McCain was saying a statute trumped a president's powers as commander in chief when it came to a surveillance law. "I don't think the president has the right to disobey any law," Mr. McCain replied.

Note that McCain says there are some areas where FISA's warrant requirements "don't apply," not some areas where they are superseded by the president's inherent powers. The example he gives, "surveillance of overseas communications," refers to email and telephone calls between parties who are both located abroad, which are not covered by FISA's warrant requirement, rather than the domestic-to-foreign communications that were the subject of Bush's order. His statement is a clear disavowal of the notion that "the president has the right to disobey the law." But instead of saying Holtz-Eakin got McCain's views wrong, the senator's campaign offered a series of nonresponses:

Tucker Bounds, a McCain campaign spokesman, said Mr. McCain's position on surveillance laws and executive power "has not changed."
"John McCain has been an unequivocal advocate of pursuing the radicals and extremists who seek to attack Americans," Mr. Bounds wrote in an e-mail message, adding that Mr. McCain's "votes and positions have been completely consistent and any suggestion otherwise is a distortion of his clear record."
Asked whether the views Mr. Holtz-Eakin imputed to Mr. McCain were inaccurate, Mr. Bounds did not repudiate the statement. But late Thursday Mr. Bounds called and said, "to the extent that the comments of members of our staff are misinterpreted, they shouldn't be read into as anything otherwise."

Thanks for clearing that up. The day the Times story appeared, McCain treated anyone who might have been troubled by it to some of his legendary straight talk:

"It's ambiguous as to whether the president acted within his authority or not,'' he said, saying courts had ruled different ways on the matter. "I'm not interested in going back. I'm interested in addressing the challenge we face today of trying to do everything we can to counter organizations and individuals that want to destroy this country. So there's ambiguity about it. Let's move forward.''

There is no ambiguity as to whether FISA required warrants for the sort of surveillance Bush authorized the National Security Agency to conduct, and the argument that Congress unintentionally amended FISA when it authorized the use of military force against Al Qaeda and the Taliban does not pass the laugh test. The only real issue is whether the president has the constitutional authority to disregard statutes such as FISA when they get in the way of actions he considers necessary to prevent terrorist attacks. In December, McCain said the president does not have that authority; now he says "there's ambiguity about it."

Pace Holtz-Eakin, this issue is not of interest only to "the ACLU and trial lawyers"; pace McCain, it is not an excuse for pointless recriminations about long-ago actions that are irrelevant to "addressing the challenge we face today." As we "move forward," there are few questions more important than whether the president is bound to obey the law even when it conflicts with his own ideas about how best to fight terrorism. If McCain cannot give a straight answer to that question and stick to it, he does not deserve the vote of anyone who believes in the rule of law and the separation of powers.

The Public Spinmeisters

rbalko@reason.com (Radley Balko) — Tue, 10 Jun 2008 12:00:00 EDT

The release of former Bush Press Secretary Scott McClellan's tell-all memoir has Washington buzzing, though there's a certain Capt. Renault-like phoniness to all the indignation: Are we really all that surprised that this administration—or for that matter, any administration—would ask its press secretary to lie, mislead, or dissemble in front of the media?

Should we really be shocked-shocked! that the White House might also keep its press secretary out of the loop when it comes to brewing political scandals, so he can convincingly feign ignorance when the press queries him about them?

While ostensibly serving as a liaison between the press and the president, White House press secretaries serve really only one function: to boost the president's image. White House press offices are little more than public relations machines for the administration they're serving.

They're wells of information when the president's announcing a new federal program or policy or when he's doing well in the polls—when the tone and tenor of the political climate. But at the first hint of controversy, they shut down. Presidents by now know to keep damning information as far from their press offices as possible.

When the tough questions come, press secretaries can then credibly assert that they "have no knowledge" or that they "weren't briefed" on the nasty stuff. For historical examples, see Clinton spokesmen Mike McCurry or Joe Lockhart during the sexual harassment scandals and, later, the impeachment trial. Or Reagan press secretaries Larry Speakes and Marlon Fitzwater during Iran Contra.

Perhaps the last truly honorable press secretary was Jerald terHorst, who resigned from the Ford administration after just a month in office. terHorst had strong objections to Ford's pardoning of Richard Nixon, and felt he could no longer in good conscience defend Ford's policies to the media. So he stepped down.

Bush's most widely praised press secretaries thus far have been Tony Snow and Ari Fleischer. But they aren't praised for their efforts at getting important, impartial information to the public. They're praised for the way they were able to flack with conviction—to be evasive without actually sounding evasive. The best press secretaries can spin like dervishes while having you believe you're getting it straight.

When under fire, the best press spokesmen thrive by appearing to communicate with us-while actually saying nothing substantive at all. In other words, the best presidential secretaries aren't notable for their public service, but for their talents at misleading the public.

So why are we paying for all of this? Why are taxpayers asked to foot the bill for the president's public relations machine?

Granted, in the grand scheme of things, it isn't that much money. The press secretary makes around $165,000 per year, deputies $70,000 to $130,000. Still, it's the principle of it all. We shouldn't be paying a White House press staff and press office whose main objective is to lie to us (of course, you could make a good argument that we pay most politicians to do the same thing, but that's another matter.)

I say we stop up the spigot. No more tax dollars for political flacks. If the president, his cabinet, and their staffs want press spokesmen, let them pay for them with campaign funds, or out of their own pockets. The purpose of a political campaign, after all, is to sell a candidate to the public.

The president's press office's job is to sell the president to the public. They serve the same purpose. It's insulting that what essentially are campaign staff are paid with taxpayer dollars under the false and farcical guise of "transparency." Fact is, when a press office is most important-during a scandal, or allegations of corruption or abuse of power-its main objective is obfuscation, the opposite of transparency.

While we're at it, we shouldn't be using public funds to pay the press secretaries and communications officers on House and Senate staff, either. They aren't nearly as prominent as the White House press spokesmen and women, but here too, their job isn't to give the public access to its lawmakers so much as it is to tout and promote the lawmakers themselves.

Taxpayer-funded press offices also contribute to an incumbency advantage. Yes, there's supposed to be a hard and fast line between a politician's campaign press and his official-duties press. But let's be honest. Touting the latest federal earmark for the water sanitation plant back home in a press release wins votes. Challengers have to pay for all of their press work from campaign funds. Incumbents should, too.

I suppose some would argue that without press offices, our politicians would be even less answerable and accountable to the public than they already are. I'll concede that my plan certainly wouldn't make them more accountable. But I doubt it will make them much less accountable, either. Politicians will still want to distribute information about how wonderful they are. Congressional representatives will still want their home districts to know how much federal pork they've procured for the local college, police department, and public works project. They'll still find a way to get that information out.

In other words, we'd still have press offices, and they'd still be doing much of the same thing they do today-touting the wisdom, good looks, and selfless public service of the boss. The main difference is that instead of pushing on taxpayers the indignity of forcing us to pay for being propagandized to, the agitprop would come from a campaign office, and be paid for with campaign money.

No one else gets a well-oiled PR machine at taxpayer expense. Why should politicians?

Radley Balko is a senior editor for reason and maintains at Web log at TheAgitator.com. This article originally appeared at Foxnews.com

Presidential Power-Tripping

rbalko@reason.com (Radley Balko) — Thu, 22 May 2008 15:00:00 EDT

In our history and civics classes, we're taught that the genius of the Constitution is the checks and balances it imposes on the three branches of government. The founders understood that each branch—the president, the Congress and the courts—would seek to expand its power. They then set up a system that not only acknowledges man's desire to accumulate power but also one that harnesses that desire and uses it to keep any one branch from becoming too influential.

That system has mostly served us well. But an important new book details how the delicate balance of power in the federal government has been unraveling for nearly a century now, and underscores how important it is that we elect a president this November who understands the constitutional boundaries of the office.

Unfortunately, that isn't likely to happen.

The Cult of the Presidency by the Cato Institute's Gene Healy (I should disclose that Healy is a friend and former colleague) provides a history of the office of the presidency. It's a fascinating narrative of how the office that was meant to be little more than an administrator of the nation's laws (George Washington referred to it as "chief magistrate") has grown into the equivalent of an elected monarch.

It's a curious thing in America that each July we celebrate how the founding fathers threw off the shackles of an oppressive monarchy, that we favorably compare our republican system of governance with the world's tyrants, dictatorships and monarchies (and rightly so)—and yet we then celebrate those American presidents who most behaved like tyrants, monarchs and dictators.

Presidents like Woodrow Wilson, Teddy Roosevelt, Franklin Roosevelt and Harry Truman are regularly put at the top of lists of America's greatest presidents. This is true when both historians and the American public at large are polled. Yet these are presidents who did everything they could to expand the power of their offices, to extend the sphere of influence of the federal government and to bully through policies that met inconvenient hurdles otherwise known as checks and balances.

Woodrow Wilson ran for president on a peace platform, then dragged us through the bloody trench carnage of World War I. Oh, and he imprisoned thousands of critics and war protesters in the process. Teddy Roosevelt once lamented that he didn't have a war during his administration to make him great, and compared the stakes of his third-party run for the White House to the rapture and second coming of Jesus Christ.

Franklin Roosevelt broke the tradition set by George Washington of serving just two terms. When the Supreme Court rebuffed his attempts to pass unconstitutional legislation, he tried to expand the number of justices on the Court to ensure a friendly majority. Harry Truman was the first president to pull America into a protracted war without first consulting Congress. He then sought to nationalize private companies to ensure that war was properly outfitted.

These are odd men to call heroes.

Inexplicably, the presidents who knew and understood their constitutional limits, who respected those limits and who generally took a more laissez-faire approach to government get short shrift—even derision—from historians.

Men like Calvin Coolidge, Warren Harding, Rutherford B. Hayes and Grover Cleveland merely exhibited what Healy calls "stolid, boring competence." Historians loathe them, Healy writes, because they had the audacity to "content themselves simply with presiding over peace and prosperity" and not seek to remake the world in their own image. The nerve of them.

Today, the president oversees 1.8 million federal employees. The federal government is America's largest employer. Moreover, we today expect much more from the president than merely to enforce the nation's laws. We expect him to console us in times of tragedy or natural disaster, to inspire us in times of war. Some even look to the president for spiritual guidance. The enormity of the office grows more unsettling when you consider the set of skills and traits it takes to get elected. As Healy explains, the long, brutal, expensive primary and general election process selects people with massive egos, people willing to subject themselves to all sorts of abuse in the pursuit of power and people willing to accept favors from all sorts of interests as they ascend from office to office—favors from people who generally expect to be repaid.

George Washington set perhaps the most important precedent in the history of the idea of a constitutional republic when he declined to seek a third term. He could have been a king if he'd so chosen. Despite achieving myth-like reverence and adulation while still in office, Washington had the humility and the foresight to understand the importance of leaving power on the table. Doing so not only limited his own power but began the voluntary two-term tradition that lasted 140 years.

While both Barack Obama and John McCain have in some way acknowledged that the Bush administration has dangerously pushed the limits of executive power, neither has indicated exactly what powers, if elected, he would give back or what steps he'd take to make sure those powers aren't later invoked by a successor.

Perhaps it's too much to hope for another George Washington. Instead, this November, it looks as if our choices are a man who styles himself after John F. Kennedy and a man who idolizes Teddy Roosevelt.

That doesn't bode well for the next four years, or for the imperial presidency's continuing threat to American democracy.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

The Cult of the Presidency

info@reason.com (Gene Healy) — Mon, 12 May 2008 12:00:00 EDT

“I ain’t running for preacher,” Republican presidential candidate Phil Gramm snarled to religious right activists in 1995 when they urged him to run a campaign stressing moral themes. Several months later, despite Gramm’s fund raising prowess, the Texas conservative finished a desultory fifth place in the Iowa caucuses and quickly dropped out of the race. Since then, few candidates have made Gramm’s mistake. Serious contenders for the office recognize that the role and scope of the modern presidency cannot be so narrowly confined. Today’s candidates are running enthusiastically for national preacher—and much else besides.

In the revival tent atmosphere of Barack Obama’s campaign, the preferred hosanna of hope is “Yes we can!” We can, the Democratic front-runner promises, not only create “a new kind of politics” but “transform this country,” “change the world,” and even “create a Kingdom right here on earth.” With the presidency, all things are possible.

Even though Republican nominee John McCain tends to eschew rainbows and uplift in favor of the grim satisfaction that comes from serving a “cause greater than self-interest,” he too sees the presidency as a font of miracles and the wellspring of national redemption. A president who wants to achieve greatness, McCain suggests, should emulate Teddy Roosevelt, who “liberally interpreted the constitutional authority of the office” and “nourished the soul of a great nation.” President George W. Bush, when passing the GOP torch to his former rival in March, declared that the Arizona senator “will bring determination to defeat an enemy and a heart big enough to love those who hurt.” Hillary Clinton, meanwhile, suggests she is “ready on Day 1 to be commander in chief of our economy.”

The chief executive of the United States is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He—or she—is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s also the Supreme Warlord of the Earth.

This messianic campaign rhetoric merely reflects what the office has evolved into after decades of public clamoring. The vision of the president as national guardian and spiritual redeemer is so ubiquitous it goes virtually unnoticed. Americans, left, right, and other, think of the “commander in chief” as a superhero, responsible for swooping to the rescue when danger strikes. And with great responsibility comes great power.

It’s difficult for 21st-century Americans to imagine things any other way. The United States appears stuck with an imperial presidency, an office that concentrates enormous power in the hands of whichever professional politician manages to claw his way to the top. Americans appear deeply ambivalent about the results, alternately cursing the king and pining for Camelot. But executive power will continue to grow, and threats to civil liberties increase, until citizens reconsider the incentives we have given to a post that started out so humble.

Minimum Leader
It wasn’t supposed to be this way. The modern vision of the presidency couldn’t be further from the Framers’ view of the chief executive’s role. In an age long before distrust of power was condemned as cynicism, the Founding Fathers designed a presidency of modest authority and limited responsibilities. The Constitution’s architects never conceived of the president as the man in charge of national destiny. They worked amid the living memory of monarchy, and for them the very notion of “national leadership” raised the possibility of authoritarian rule by a demagogue ready to create an atmosphere of crisis in order to enhance his power.

The constitutional office they designed gave the president an important role, but he’d have “no particle of spiritual jurisdiction,” the 69th essay of The Federalist Papers tells us. In Federalist No. 48, James Madison assured Americans that under the proposed Constitution the “executive magistracy is carefully limited, both in the extent and the duration of its powers.” Indeed, the very pseudonym the Federalist’s authors chose, “Publius,” says something about how hostile Founding-generation Americans were to the idea of one-man rule. Publius Valerius Poplicola, a hero of the Roman revolution in the 5th century B.C., was famous in part for passing a law providing that anyone suspected of seeking kingship could be summarily executed.

Never were constitutional limitations more essential than when it came to using military power. Early Americans were no strangers to national security threats; in 1787 the U.S. was a small frontier republic on the edge of a continent occupied by periodically hostile great powers and Indian marauders. Yet the Constitution limited emergency powers and sharply rejected the idea that the president was above the law. “In no part of the Constitution,” Madison wrote in 1793, “is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” In any other arrangement, “the trust and the temptation would be too great for any one man.” That sentiment crossed party lines. As Chief Justice John Marshall wrote in 1801, “the whole powers of war being by the Constitution of the United States vested in Congress, the acts of that body can alone be resorted to as our guides.”

Today Americans expect their president to pound Teddy Roosevelt’s “bully pulpit,” whipping the electorate into a frenzy to harness power against perceived threats. But the Framers viewed that sort of behavior as fundamentally illegitimate. In fact, the president wasn’t even supposed to be a popular leader. As presidential scholar Jeffrey K. Tulis has pointed out, in the Federalist the term leader is nearly always used pejoratively; the essays by Madison, Alexander Hamilton, and John Jay in defense of the Constitution begin and end with warnings about the perils of populist leadership. The first Federalist warns of “men who have overturned the liberties of republics” by “paying obsequious court to the people, commencing demagogues and ending tyrants,” and the last Federalist raises the specter of a “military despotism” orchestrated by “a victorious demagogue.”

Instead of stoking public demands for action, the chief magistrate was expected to resist “the transient impulses of the people” and use his veto to keep Congress within its constitutional bounds. That role didn’t require much speechifying. Early presidents rarely spoke directly to the public; from George Washington through Andrew Jackson, they averaged little more than three speeches per year, with those mostly confined to ceremonial addresses. In his first year in office, by comparison, President Clinton delivered 600.

In the early State of the Union addresses to Congress, presidents knew better than to adopt an imperious tone. After his third SOTU, Washington wrote that “motives of delicacy” had deterred him from “introducing any topic which relates to legislative matters, lest it should be suspected that [I] wished to influence the question” before Congress. Yet the deference shown by Washington and his successor John Adams didn’t go quite far enough for our third president, Thomas Jefferson, who thought their practice of speaking before the legislature in person smacked of the British king’s “Speech From the Throne.” Jefferson instead inaugurated a new tradition of delivering the annual message in writing. For 112 years, that Jeffersonian tradition held sway, until the power-hungry Woodrow Wilson delivered his first State of the Union in person.

The 19th century did see presidents occasionally taking independent action of enormous consequences: Jefferson purchased Louisiana without congressional approval, Madison seized West Florida in 1810, Andrew Jackson governed as an irritable populist, and Abraham Lincoln expanded presidential power dramatically throughout the course of the cataclysmic Civil War. Yet taken as a whole, the 19th-century presidency was a pale shadow of the plebiscitary office we know today.

In a 2002 study tracking word usage through two centuries of SOTUs and inaugural addresses, political scientist Elvin T. Lim noted that in the first decades under the Constitution presidents rarely mentioned poverty, and the word help did not even appear until 1859. Nor did early presidents subscribe to the modern notion that it’s all “about the children”; they rarely even mentioned the little buggers. But Lim found that “Presidents Carter, Reagan, Bush, and Clinton made 260 of the 508 references to children in the entire speech database, invoking the government’s responsibility to and concern for children in practically every public policy area.”

George Washington did mention kids in his seventh annual message, lamenting “the frequent destruction of innocent women and children” by Indian raiders. But that was a far cry from Bill Clinton in 1997, who declared in the State of the Union that “we must also protect our children by standing firm in our determination to ban the advertising and marketing of cigarettes that endanger their lives.”

Wail to the Chief
A little-remembered vignette from the 1992 presidential race underscores how far we’ve traveled from the Framers’ unassuming “chief magistrate”—and how infantile our politics have become along the way. The scene was the campaign’s second televised debate, held in Richmond, Virginia; the format, a horrid Oprah-style arrangement in which a hand-picked audience of allegedly normal Americans got to lob questions at the candidates, who were perched on stools, trying to look warm and approachable. Up from the crowd popped a ponytailed social worker named Denton Walthall, who demanded to know what George H.W. Bush, Bill Clinton, and H. Ross Perot were going to do for us.

“The focus of my work as a domestic mediator is meeting the needs of the children that I work with…and not the wants of their parents,” Walthall said. “And I ask the three of you, how can we, as symbolically the children of the future president, expect the three of you to meet our needs, the needs in housing and in crime and you name it.”

One wonders how some of the more irascible presidents of old would have reacted at the sight of a grown man burbling about childish necessities to the prospective national father. Yet under the hot lights of the 1992 campaign, Ross Perot said he’d cross his heart and take Walthall’s pledge to meet America’s infantile needs, whatever those were. Bill Clinton, being Bill Clinton, pandered. And Bush 41 spluttered through his answer thusly:

“I mean I—I think, in general, let’s talk about these—let’s talk about these issues; let’s talk about the programs, but in the presidency a lot goes into it. Caring is…that’s not particularly specific; strength goes into it, that’s not specific; standing up against aggression, that’s not specific in terms of a program. So I, in principle, I’ll take your point and think we ought to discuss child care—or whatever else it is.” That wasn’t just an example of the Bush family’s famous locution problems; it’s hard not to stammer when faced with the limitless and bewildering demands the public places on the presidency.

How did we go from a reticent constitutional officer to the modern commander in chief, a figure who continually shifts back and forth between gushing empathy and military bluster, often within the same speech? As Tony Soprano might have put it, whatever happened to Calvin Coolidge, the strong, silent type?

There is no single explanation for the presidency’s growth. New communication technologies such as radio and television played a role, as did growing material progress, which made Americans less willing to suffer inconveniences and more receptive to the belief that public problems could be solved with collective action. Yet in each key period of the presidency’s growth, we see a familiar pattern: expansionist ideology meeting practical opportunity in the form of successive national crises.

The 100-Year Emergency
Much of what’s wrong with American government today can be traced to the Progressive Era, that period of reformist backlash against the Industrial Revolution that dominated the decades surrounding the turn of the 20th century. As the Progressives saw it, if the Constitution stood in the way of necessary reforms, then too bad for the Constitution. “We are the first Americans,” a young scholar named Woodrow Wilson wrote in 1885, “to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our institutions as compared with the systems of Europe.”

The Progressives were “the nearest to presidential absolutists of any theorists and practitioners of the presidency,” wrote Raymond Tatalovich and Thomas S. Engeman in their 2003 book The Presidency and Political Science: Two Hundred Years of Intellectual Debate. For the new century’s reformers, power wielded for national greatness was benign, checks on such power perverse. The Progressives had no use for the restrained oratorical traditions of the 19th century; it was the president’s job to move the masses, unifying them behind calls for bold executive action.

Their model and embodiment was Teddy Roosevelt, whom the Progressive journalist and New Republic founder Herbert Croly described as a “sledgehammer in the cause of national righteousness.” When T.R. took the stage at the 1912 Progressive Party convention, he foreshadowed Obama’s quasi-religious fervor and McCain’s bellicosity, barking, “To you who strive in a spirit of brotherhood for the betterment of our Nation, to you who gird yourselves for this great new fight in the never-ending warfare for the good of humankind, I say in closing.…We stand at Armageddon, and we battle for the Lord!”

The most astute among the Progressives recognized that, given the American public’s congenital resistance to centralized rule, a sustained atmosphere of crisis would be necessary to sell the expansion of White House power. Two world wars and one Great Depression did the trick nicely. T.R.’s activist, celebrity presidency heralded the coming of a new sort of chief executive, one who would evermore be the center of national attention, the motive force behind American government. With his expanded power, Roosevelt busted trusts, carried a big stick throughout the Americas with a newly imperial U.S. Navy, and issued nearly as many executive orders as all of his predecessors combined. Woodrow Wilson then proved what Progressives had long hypothesized: that soaring rhetoric combined with the panicked atmosphere of war could concentrate massive social power in the hands of one person. Over the course of his presidency he helped create the Federal Reserve, nationalized railroads, and used the Espionage and Sedition Acts (along with more than 150,000 vigilantes) to carry out the most brutal campaign against dissent in U.S. history.

But it took FDR to eliminate the last remaining vestiges of the modest presidency. Roosevelt used Wilson’s Trading With the Enemy Act to shut down all U.S. banks in 1933, grabbed the power to approve or prescribe wages and prices for all trades and industries, and authorized the FBI to spy on suspected subversives. He changed the Supreme Court from a bulwark against presidential overreach to an enabler. By the end of his 12-year reign, FDR had firmly established the president as national protector and nurturer, one whose performance would be judged in terms of what political scientist Theodore Lowi has identified as the modern test of executive legitimacy: “service delivery.” In his 11th State of the Union address, FDR conjured up a second Bill of Rights, one whose guarantees would include “a useful and renumerative job” and the “right of every farmer to…a decent living.” Depression-era economic controls and war-driven centralization had turned the American system of government, in Lowi’s words, into “an inverted pyramid, with everything coming to rest on a presidential pinpoint.”

War was the health of the presidency during the long twilight struggle against the Soviet Union as well. “The worse matters get,” Harry Truman’s adviser Clark Clifford told him in 1948, “the more is there a sense of crisis. In times of crisis, the American citizen tends to back up his president.” During the Cold War, presidents used the all-purpose rationale of national security to justify spying on their political enemies. Richard Nixon might have been the most notorious abuser, with a series of dirty tricks and flagrant offenses that led to his downfall, but his predecessors also wielded the presidential bludgeon with gusto. When American steel companies raised prices in 1962, John F. Kennedy declared privately that “they fucked us, and now we’ve got to fuck them,” then (along with his attorney general, brother Bobby) ordered up wiretaps, Internal Revenue Service audits and early-morning raids on steel executives’ homes. During the 1964 presidential race, Lyndon Johnson used the CIA to obtain advance copies of Barry Goldwater’s campaign speeches, and the FBI to bug Goldwater’s plane.

In the pre-Watergate age of the heroic presidency, public trust in government was at its height, and mainstream scholars lauded the presidency as an earthly manifestation of the living God. As political scientist Herman Finer put it in 1960, the office was “the incarnation of the American people in a sacrament resembling that in which the wafer and the wine are seen to be the body and blood of Christ.” The president, Finer said, was “the offspring of a titan and Minerva husbanded by Mars.”

I Hate You; Don’t Leave Me
After Vietnam and Watergate, America’s intoxication with the imperial presidency ended with a crushing hangover. A newly aggressive press and assertive Congress produced serial revelations of the executive abuses that blind trust had enabled. In the bicentennial year of 1976, Idaho Sen. Frank Church’s Committee to Study Governmental Operations With Respect to Intelligence Activities summed up the damage:

“For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates. The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency. Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.”

During the Eisenhower 1950s and the JFK/LBJ 1960s, the newly ascendant conservative movement coalescing around Barry Goldwater and William F. Buckley’s National Review was the most potent source of criticism of the imperial presidency. “Others hail the display of presidential strength…simply because they approve of the result reached by the use of power,” Goldwater wrote in his 1964 campaign manifesto. “This is nothing less than the totalitarian philosophy that the end justifies the means.”

But enticed by the long-awaited prospect of an “emerging Republican majority” and turned off by the journalistic and congressional attacks on Nixon, conservatives learned to stop worrying and love the executive branch. During the post-Watergate reform era, two senior Gerald Ford White House aides named Dick Cheney and Donald Rumsfeld fought tooth and nail against what they felt were dangerous shackles on the executive branch, supported by a conservative commentariat that refocused its ire on the Democratic Congress and the left-leaning press. “I didn’t like Nixon until Watergate,” National Review stalwart M. Stanton Evans once quipped.

Although Americans finally recovered their native skepticism toward power after Vietnam, Watergate, and the revelations of the Church committee, we never reduced our demands on the executive branch. The lesson we seemed to have learned from the legacy of abuses was to trust less, ask more. In 1998 the Pew Research Center noted that “public desire for government services and activism has remained nearly steady over the past 30 years.” Two years later, a report on a survey by NPR, the Kaiser Family Foundation, and Harvard’s John F. Kennedy School of Government put it pithily: “Americans distrust government, but want it to do more.” The spirit of Denton Walthall lived on in the years leading up to the terrorist attacks of September 11, 2001.

Superman Returns
The Bush administration’s extraconstitutional innovations in response to those attacks are by now all too familiar. John Yoo, David Addington, and other members of the president’s legal team constructed an alternative version of the national charter, a “neoconstitution” in which the president has unlimited power to launch war, wiretap without judicial scrutiny, and even seize American citizens on American soil and hold them for the duration of the War on Terror—in other words, indefinitely—without ever having to answer to a judge.

Conventional accounts of the post-9/11 imperial presidency emphasize the role of dedicated ideologues within the administration, men and women who had long believed that post-Watergate America had swung the pendulum too far back, jeopardizing national security. There’s good reason for that emphasis, but the “cabal of neocons” narrative risks obscuring the role that public demands have played in driving the centralization of power.

In his 2007 book The Terror Presidency, Jack Goldsmith, the former head of the president’s Office of Legal Counsel, describes the prevailing atmosphere within the executive branch after 9/11, one where the president’s men were acutely aware that all eyes were on the commander in chief. What is he doing to keep us safe? What more is he prepared to do?

Goldsmith, a dissenter from the Bush administration’s absolutist theories of executive power, often clashed with Dick Cheney’s deputy David Addington, the hardest-driving supporter of those theories. But Goldsmith understood why Addington was so unrelenting: “He believed presidential power was coextensive with presidential responsibility. Since the president would be blamed for the next homeland attack, he must have the power under the Constitution to do what he deemed necessary to stop it, regardless of what Congress said.”

That dynamic can lead to enhanced presidential power even in areas far removed from the War on Terror, as was demonstrated in the aftermath of Hurricane Katrina. In business or in government, responsibility without authority is every executive’s worst nightmare. That was the political reality facing the Bush administration in late summer 2005, when New Orleans was under water and desperate for assistance. As Colby Cosh of Canada’s National Post put it at the time, “the 49 percent of Americans who have been complaining for five years about George W. Bush being a dictator are now vexed to the point of utter incoherence because for the last fortnight he has failed to do a sufficiently convincing impression of a dictator.”

To be sure, the administration deserved plenty of blame for bungling the disaster relief tasks it had the power to carry out. But it soon became clear that the public held the Bush team responsible for performing feats above and beyond its legal authority. One almost had to feel sorry for Michael “Heckuva Job” Brown(ie), the disgraced former Federal Emergency Management Agency head, when he was obliged on Capitol Hill a month after the hurricane to inform an irate Rep. Chris Shays (R-Conn.) that in our federalist system, the FEMA chief has no power to order mandatory evacuations, or to become “this superhero that is going to step in there and suddenly take everybody out of New Orleans.” “That is just talk,” Shays responded. “Were you in contact with the military?”

For a president beleaguered by public demands, seizing new powers can be an adaptive response. Small wonder, then, that the Bush administration promptly sought enhanced authority for domestic use of the military. Although few in the media noted the historical moment, the president received that authority. On October 17, 2006, the same day he signed the Military Commissions Act denying centuries-old habeas corpus rights to “enemy combatants,” the president also signed a defense authorization bill that contained gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts the president’s power to use the standing army to enforce order at home.

The new exceptions to the act gave the president power to use U.S. armed forces to “restore public order and enforce the laws” when confronted with “natural disasters,” “public health emergencies,” and “other…incidents”—a catchall phrase that radically expands the president’s ability to use troops against his own citizens. Under it, the president can, if he chooses, fight a federal War on Hurricanes, declaring himself supreme military commander in any state where he thinks conditions warrant it. That’s the kind of executive power grab that happens when the public demands that the president protect Americans from the hazards of cyclical bad weather.

2009 and Beyond
To understand is not to excuse: No president should have the powers President Bush has sought and seized during the last seven years. But after 9/11 and Katrina, what rationally self-interested chief executive would hesitate to centralize power in anticipation of crisis? That pressure would be hard to resist, even for a president devoted to the Constitution and respectful of the limited role the office was supposed to play in our system of government.

In the current presidential race, none of the major-party candidates comes close to fitting that description. Aside from the issue of torture, there’s very little daylight between John McCain and George W. Bush on matters of executive power. For her part, Hillary Clinton claims she played a key role in her husband’s undeclared war against Serbia in 1999. “I urged him to bomb,” she told Talk magazine that year. In 2003 she told ABC’s George Stephanopoulos: “I’m a strong believer in executive authority. I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority.”

Barack Obama has done more than any candidate in memory to boost expectations for the office, which were extraordinarily high to begin with. Obama’s stated positions on civil liberties may be preferable to McCain’s, but would it matter? If and when a car bomb goes off somewhere in America, would a President Obama be able to resist resorting to warrantless wiretapping, undeclared wars, and the Bush theory of unrestrained executive power? As a Democrat without military experience, publicly perceived as weak on national security, he’d have much more to prove.

As Jack Goldsmith put it in his 2007 book, “For generations the Terror Presidency will be characterized by an unremitting fear of attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so.…If anything, the next Democratic President—having digested a few threat matrices, and acutely aware that he or she alone will be wholly responsible when thousands of Americans are killed in the next attack—will be even more anxious than the current President to thwart the threat.”

Law professors Jack Balkin of Yale and Sanford Levinson of the University of Texas at Austin are both Democrats and civil libertarians, so they take no pleasure in their prediction that “the next Democratic President will likely retain significant aspects of what the Bush administration has done.” Indeed, they write in a 2006 Fordham Law Review article, future Democratic presidents “may find that they enjoy the discretion and lack of accountability created by Bush’s unilateral gambits.”

Throughout the 20th century more and more Americans looked to the central government to deal with highly visible public problems, from labor disputes to crime waves to natural disasters. And as responsibility flowed to the center, power accrued with it. If that trend continues, responses to matters of great public concern will be increasingly federal, increasingly executive, and increasingly military.

In the years to come, many Americans will find that the results of executive action are not to their liking. And if history is any guide, they’ll respond by vilifying the officeholder and looking for another man on horseback to set things right again.

In The Road to Serfdom, economist and political philosopher F.A. Hayek chastised the “socialists of all parties” for their belief that “it is not the system we need fear, but the danger it might be run by bad men.” Today’s “presidentialists of all parties”—a phrase that describes the overwhelming majority of American voters—suffer from a similar delusion. Our system, with its unhealthy, unconstitutional concentration of power, feeds on the atavistic tendency to see the chief magistrate as our national father or mother, responsible for our economic well-being, our physical safety, and even our sense of belonging. Relimiting the presidency depends on freeing ourselves from a mind-set one century in the making. One hopes that it won’t take another Watergate and Vietnam for us to break loose from the spellbinding cult of the presidency.

Gene Healy, a senior editor at the Cato Institute, is the author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power (Cato), from which this essay was adapted.

John Yoo's Right to Give Bad Advice

jsullum@reason.com (Jacob Sullum) — Thu, 24 Apr 2008 15:41:00 EDT

At a Manhattan Institute website devoted to higher education, civil libertarian (and reason contributor) Harvey Silverglate takes a skeptical look at calls to discipline, disbar, fire, or prosecute former Justice Department attorney John Yoo, now a Berkeley law professor, for his advice regarding the president's authority to torture prisoners and otherwise flout the will of Congress and/or the Constitution. Although severely critical of Yoo's views on executive power, some of which he calls "laughable" and "ludicrous," Silverglate approaches the issue as "both a criminal defense lawyer, with a vested interest in ensuring that a fellow member of the bar is dealt with fairly, and as a frequent critic of higher education's often evident contempt for academic freedom." He argues that proving Yoo gave his legal advice in bad faith, as required for prosecution and probably for disbarment as well, would be very difficult. Silverglate also warns that an investigation by his employer could have a chilling effect on academic freedom and set a bad precedent for partisan attacks disguised as ethical policing. Such inquiries would in any case be fundamentally misguided, I think, given the impressive ability that human beings have to convince themselves that what's convenient for them (or their bosses) is also what's right.

John Yoo's vision of presidential power scares me, but so do partisan attacks on freedom of speech.

I Don't Want Yoo to Show Them the Way

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 07:00:00 EDT

According to John Yoo, the president's powers under the Constitution are so broad that the Constitution itself cannot restrain them. In a recently declassified 2003 memo, the former Justice Department official asserted that Congress, despite its Article I powers to "make rules concerning captures on land and water" and "for the government and regulation of the land and naval forces," has no business regulating the treatment of military prisoners. Yoo also cited a 2001 memo in which he had concluded that "the Fourth Amendment had no application to domestic military operations."

Compared to Yoo, all three of the remaining major-party candidates for president sound moderate when they talk about executive power. But Barack Obama is the one who seems to care most about restoring the rule of law and the separation of powers after eight years of an administration that has sorely abused both.

Even the Justice Department has backed away from Yoo's maximalist position, although exactly how far isn't clear. In Senate testimony last week, Attorney General Michael Mukasey repeatedly dodged the question of whether he thinks the Pentagon is free to conduct unreasonable searches and seizures.

Such immunity from the Fourth Amendment would allow not just warrantless surveillance of international communications involving people in the U.S. but monitoring of purely domestic phone calls and email as well. Indeed, it would allow warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.

Yet the strongest reassurance Mukasey could offer was to say that "the Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime." Asked specifically whether that means it applies to "domestic military operations," he said, "I'm unaware of any domestic military operations being carried out today."

Mukasey's evasiveness is especially troubling in light of his refusal during his confirmation hearings to acknowledge that Congress has the constitutional authority to restrict National Security Agency wiretaps. Unlike Yoo, he did at least concede that the president is bound to obey a congressional ban on torture.

That is the area where John McCain has most clearly distinguished himself from the Bush administration. Last December, in response to a Boston Globe candidate survey focusing on executive power, the Arizona senator also said the president is not free to violate statutory restrictions on wiretaps, and he rejected the use of signing statements as a way of reserving the right to flout laws. But he took a broader view than the other candidates of the president's authority to detain "enemy combatants," and he declined to identify areas where the Bush administration has overstepped its constitutional authority.

Obama, by contrast, gave half a dozen detailed examples. In general, the Illinois senator's answers to the Globe's questions were direct, thoughtful, and complete, apparently reflecting a sincere determination to limit his own power if elected.

After the election, of course, such promises may not be worth much. But on that score I worry more about Hillary Clinton. The New York senator's answers to the Globe survey, though less detailed than Obama's, were similar in substance. I just find it hard to believe them.

Clinton agreed, for example, that the president has to seek congressional authorization before attacking another country, except in response to an "imminent threat." Yet she has bragged about urging her husband to bomb Serbia as part of an unauthorized war that had nothing to do with national defense.

Although Clinton now claims to have a modest view of presidential power, she was singing a different tune a few years ago. "I'm a strong believer in executive authority," she told George Stephanopoulos of ABC News in 2003. "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority." With the War on Terror as a rationale, her wish could be her command.

When They Knock Kick at Your Front Door

matt.welch@reason.com (Matt Welch) — Tue, 08 Apr 2008 08:32:00 EDT

Phillip Carter, now blogging over at the Washington Post, discovers an especially rancid paragraph from the John Yoo torture memo released last week claiming that whatever 4th Amendment protections we have left no longer apply when it's the U.S. military doing the searching and seizing:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001). [italics in original]

Carter tries to figure out what it all means:

It could refer to the National Security Agency's now-well-publicized surveillance program -- a program grounded in many of the same constitutional theories of presidential power that underlie the torture memoranda. It could also refer to deployment of federal military forces within the United States and action they could take against U.S. citizens, such as hypothetically searching someone's bag for suspected explosives at an airport. (It should be noted that most soldiers deployed for homeland security are state National Guard soldiers, who for complex reasons are subject to different legal rules than federal soldiers.) Or the footnote could refer to clandestine domestic military operations conducted by the Defense Department and its intelligence components -- things we can only guess at.

UPDATE: Senior Editor Jacob Sullum was all over this last week. Excerpt:

That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.
The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.

Send Jesse Ventura!

matt.welch@reason.com (Matt Welch) — Fri, 14 Mar 2008 16:26:00 EDT

The former Minnesota governor is reportedly pondering an independent run at the White House, and releasing a new book with the rather desperate title of Don't Start the Revolution Without Me! In which he asks: "As I begin to write this book, I'm facing probably the most monumental decision of my 56 years on this planet. Will I run for president of the United States, as an independent, in 2008? Or will I stay as far away from the fray as possible, in a place with no electricity, on a remote beach in Mexico?"

In either case, here's hoping he rocks this 'do:

A more haggard-looking Governor Body cross-examined by Truthers here. Lots of great past reason coverage of Ventura here.

It Takes a Congress of Minions to Hold Us Back

matt.welch@reason.com (Matt Welch) — Wed, 05 Mar 2008 09:39:00 EST

Steven Aftergood at the Federation of American Scientists reports that Congress is not exactly maximizing its oversight duty on the NSA:

The Government Accountability Office maintains an office at the National Security Agency but it remains unused since no one in Congress has asked GAO to perform any oversight of the Agency, the head of GAO disclosed last week. [...]
Comptroller General David M. Walker, the outgoing director of GAO, confirmed that it was true.
"We still actually do have space at the NSA. We just don't use it and the reason we don't use it is we're not getting any requests, you know. So I don't want to have people sitting out there twiddling their thumbs," Mr. Walker said.

During the last presidential campaign, I wrote about how Ford Administration veterans Dick Cheney and Donald Rumsfeld were being successful in their 30-year quest to roll back post-Watergate congressional checks on executive power. And when Ford died, I argued that our long national nightmare was still going strong.

Crane, Levy on Executive Power

rbalko@reason.com (Radley Balko) — Tue, 19 Feb 2008 17:29:00 EST

Cato honcho Ed Crane and board member Bob Levy have co-writen an op-ed entitled, "No, a President Can't Do as He Pleases," which sounds quite a bit like a scolding of fellow Catoite Roger Pilon for his recent op-ed in the Wall Street Journal.

Much as I disagree with Pilon's op-ed (disclosure, I'm a former Cato employee), it seems to me that this is the proper response. Cato is of course a libertarian think tank. But my experience there was that within that framework, there is quite a bit of intellectual freedom. A common refrain there has always been that "there is no official Cato position, only positions held by Cato scholars." Crane didn't fire or publicly discipline Pilon for apostasy. Rather, he took up a pen himself, and wrote a piece that, along with Tim Lee's rebuttal and Gene Healy's forthcoming book, makes it pretty clear that Pilon's position on executive power isn't one held by many others at Cato.

MORE: Lee and Healy also have a piece in today's Orange County Register on FISA.