Yesterday I noted that Ron Paul is "the only [presidential] candidate making the points that need to be made…about the threat to civil liberties posed by unchecked executive power." A New York Times questionnaire, similar to the one The Boston Globe submitted to presidential candidates in December 2007, underlines that point. "Even as they advocate for limited government," the Times reports, "many of the Republican presidential candidates hold expansive views about the scope of the executive powers they would wield if elected—including the ability to authorize the targeted killing of United States citizens they deem threats and to launch military attacks without Congressional permission…Only Mr. Paul, the libertarian-leaning congressman from Texas, argued for a more limited view of presidential power." Here are some of the questions:
Under what circumstances, if any, would the Constitution permit the president to authorize the targeted killing of a United States citizen who has not been sentenced to death by a court?
"Under wartime circumstances or in the case of an imminent threat to the United States," Newt Gingrich said. The other candidates gave similar (albeit lengthier) answers, while Paul said, "None."
Under what circumstances, if any, would the Constitution permit the president to imprison a United States citizen, arrested on United States soil, indefinitely and without charges as a military detainee?
Paul's answer: "A President can only indefinitely detain citizens in cases of rebellion or invasion pursuant to an act of Congress suspending habeas corpus. Under the Constitution, a civilian should never be treated as a military detainee, and anyone detained must either be charged or released once the military crisis leading to the suspension of habeas corpus has passed." All the others said the president has unilateral authority to detain anyone he deems an "enemy combatant."
In the absence of an imminent threat to the United States, under what circumstances, if any, would the Constitution permit the president to direct the armed forces to attack another country without receiving prior authorization from Congress?
Paul's answer: "Absent an imminent threat, a President should not undertake unilateral military action. As President, if I believed there was a threat to the US justifying military action, I would go before Congress and the people to present the case for war." All the others said the president has the authority to use military force whenever he thinks it's justified, although Gingrich added that "Congress' constitutional power to cut off funding is an absolute check on the president's ability to direct American armed forces."
The War Powers Resolution requires presidents to terminate deployments into hostilities that have not been authorized by Congress 60 days after notifying lawmakers that the campaign has begun; is that mandate constitutionally valid and legally binding on the commander in chief?
All but one candidate said the War Powers Resolution unconstitutionally impinges on presidential power. Paul questioned the law's constitutionality for a different reason: "The War Powers Resolution, by allowing the President authority to unilaterally deploy troops for 60 days without Congressional approval, gives too much unilateral war-making power to the President."
If a federal statute prohibits an interrogation technique or mandates restrictions and procedures on surveillance for national security purposes, under what circumstances, if any, would the Constitution permit the president to override such statutes and authorize subordinates to act contrary to them?
Paul's answer: "None. The idea that at times federal agents or military personnel may need to use torture or other illegal techniques to gain information in a 'ticking time bomb' scenario is a fantasy of Hollywood screenwriters and hack neocon policy analysts." All the others said (or, in the case of Mitt Romney, obliquely suggested) the president can ignore the law when it impinges on his ability to protect national security.
Which executive powers, if any, claimed and exercised by the Bush and/or Obama administrations were unconstitutional in your view? Were there any such powers that were simply a bad idea?
Paul cited unauthorized wars, warrantless wiretaps, torture, indefinite detention, and "the assassination of anyone in any country—including US citizens—[the president] deems an enemy combatant." He said the excesses of George W. Bush's counterterrorism policies were "among the worst abuses of executive authority in the nation's history" and that Bush's successor has been worse in some respects.
None of the others cited a single example of overreaching presidential action in the name of fighting terrorism or protecting national security. Gingrich said the problem is too little executive power, thanks to interference by the Supreme Court. Jon Huntsman declined to answer. Rick Perry complained that "Congress has turned over the power of the purse…to the executive branch…particularly with respect to the Troubled Asset Relief Plan [sic]." Mitt Romney's main example of executive power abuse, the Patient Protection and Affordable Care Act, is actually an example of legislative power abuse, since Congress exceeded its authority under the Commerce Clause. Romney also cited a few relevant examples, including "automaker bailouts" and the "FCC's attempt to extend its regulatory power to the Internet in direct contravention of U.S. statutes and a court decision."
Rick Santorum and Michele Bachmann did not participate in the survey, but their statements in the Republican presidential debates indicate that their views on executive power are much closer to Gingrich's than to Paul's. Barack Obama also declined to participate, but we know a thing or two about his understanding of executive power based on his performance in office these last three years. As the Times coyly notes, "His record in office shows how circumstances and the assumption of power can alter views expressed in a campaign." Before taking office, for instance, Obama believed (as he put it in the Globe survey) "the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." After taking office, he changed his mind. The Times adds that Obama "has outraged civil libertarians by keeping in place the outlines of many Bush-era policies, like indefinite detention and military commissions for terrorism suspects. And in the Libya air war and the targeted killing of [Anwar al-Awlaki], he went beyond Mr. Bush's executive-power record."