We Need A Weaker Executive
I appreciate Charles Homans' concerns regarding the unintended consequences of criminal investigation and prosecution. The fear of an excessively restricted executive, however, does not seem to me to be one of those consequences. To the extent that the Vice President was the moving force behind most, if not all, of the abusive policies in question, it was Cheney's belief that an already enormously powerful executive had been crippled and weakened by post-Watergate constraints, and his goal was to undo the "damage" that he believed had been done in the '70s. Every power grab, dubious legal argument and end-run around the rule of law in this administration stems in no small part from the bizarre view that the imperial presidency was too limited in what it was allowed to do. This was his view during a period when the executive branch already possessed overwhelming supremacy, particularly in the sphere of national security that we are discussing here.
Professor Andrew Bacevich has identified in his book The Limits of Power what he calls the "ideology of national security," which he argues has been a common feature of postwar administrations to provide a "highly elastic rationale for action" and which is used mainly to "legitimate the exercise of executive power." Cheney's view of a weakened executive that needed to be bolstered by evading or eliminating constraints on action is an example of this ideology taken to its logical extreme, but the adherents of this ideology are not limited to the defenders of this administration's policies. One of the unintended services that this administration has rendered is to show how the cloak of national security can be so easily used to pernicious and counterproductive ends, and why we should be much more reluctant to loosen restraints on the executive than to tighten them. Beyond the immediate question of how the administration's acts should be investigated, there is a great need for reassessing our readiness to defer to the executive in the name of national security.
It is particularly for this reason that I think Kate Martin is right to call for an inquiry into government surveillance, as this has been one area where deference to the executive's demands, or capitulation as Sen. Feingold has described them, has been the greatest and perhaps the most permanently damaging. Surveillance is a power that can be readily abused in secret with insufficient oversight, and these abuses can be even more readily justified with appeals to national security in ways that do not apply to the other abusive practices. It would have been better had Congress clearly determined what powers it was agreeing to authorize for the executive when it has passed antiterrorism and surveillance legislation in the past. However, it is because of the extensive collaboration or acquiescence of Congress in the creation of the government's post-9/11 surveillance powers that a separate inquiry into surveillance practices, their legality and their abuses makes sense.
I recall when the NYT first reported this outrage and, in fact, admitted they had held the info back for some time. Then W, sounding like Nixon when that was supposed to be the Dick's job, ranted that people at the NYT should be imprisoned for aiding the enemy.
Then I recalled the lowly worker for a cellular company talking about how the Feds came and took over the control room.
A few short weeks before the story, W was lying that there were no taps on Americans without court order. Something he had been saying for months.
Yeah. I want an investigation.
November 28, 2008 7:23 PM | Reply | Permalink
. . . during a period when the executive branch already possessed overwhelming supremacy, particularly in the sphere of national security . . . . Daniel Larison
But -- was that "supremacy" sufficient to the task at hand?
November 28, 2008 9:59 PM | Reply | Permalink
We will never know. Bush and his gang were so preoccupied with restarting the star wars fantasy program, to open the floodgates so more money could flow to their contributors, that they used none of their existing supremacy to accomplish the task at hand. That prevents us from ever knowing just how well the government could have functioned for the past 8 years. With Bush in charge it could barely function at all.
November 28, 2008 10:32 PM | Reply | Permalink
The notion of supremacy of one branch over another is a contradiction. Whatever task is at hand requires careful examination signified by a balanced application of control. Where that balance is absent there exists a risk of arriving at an undesirable or harmful conclusion.
Crucial to this is the branches remaining independent of politics and operating as unified entities as was intended. No such condition exists in the current political climate. This renders the prescribed structural devisement of three branches almost irrelevant.
Everything is structured upon and reactive to the political, making the branches non-distinct when it comes to the dispatch of government power and authority. The executive has gained power under this scheme because the titular head of government and the party holding the WH is the president. The inverse outcome of this is the congress represents a political party instead of a constituency of citizens. Congressional support for legislation is most closely tracked by political affiliation and retains that circumstance except for the most contentious issues where members are under hard scrutiny from voters.
In the end we no longer have a functional democracy. We have a time and event variable, philosophically guided government that is in a constant state of flux and which is incapable of planning and executing anything beyond an eight year horizon. It is clearly understood that the policies of today will have repurcussions for the next half century. We have a government that operationally is politically schizophrenic in its construct. That is doesn't work should not be surprising.
November 29, 2008 9:32 AM | Reply | Permalink
If the authors of the Constitution really envisioned the three branches staying clear of politics, then they were even dumber than they looked.
November 29, 2008 6:38 PM | Reply | Permalink
Madison and Hamilton warned of the dangers of factions acting against the public interest and they engineered a system theoretically able to withstand the pressure. They simply didn't conceive of transcontinental communication capabilities that unified those factions into national parties.
You think you can do better? OK, quickly, squeaky - predict the capacities and modes for global communication 150 years from now.
Your disdain is much better aimed not at the dead Founders but at the living members of Congress who have the power to reel in a rogue executive, but failed to do so for fear of appearing soft on national security, in violation of their sworn oaths to protect and defend the Constitution.
Or maybe that's the fault of Madison or Hamilton too, that they didn't envision our government being led by oathbreakers.
November 30, 2008 12:33 AM | Reply | Permalink
I think Madison and Hamilton had it figured just right. What they didn't count on were persons who don't truly believe in anything beyond a politically scripted immediacy to events.
Narrowly framed notions of success severely resticts what is possible and isolates the majority of citizens from contributing. We suffer at the hands of individuals who purposefully seek to divide us and who themselves are unable to operate in a socially diverse environment. We have a system that promotes the selection of persons who are raised in isolation from the masses. It was made fun of when Obama's community organizing efforts became part of the campaign. We need to fully grasp the meaning of this ridicule, and shine a light on how divisive it is. We are one people. We succeed or fail in that context. Only by embracing our diversity can we realize our potential.
November 30, 2008 7:54 AM | Reply | Permalink
Ellen,
. . during a period when the executive branch already possessed overwhelming supremacy, particularly in the sphere of national security . . .
I don't think the Executive should ever have "overwhelming supremacy", but if Bush did have this authority its because Congress failed the people by allowing it.
November 30, 2008 8:34 AM | Reply | Permalink
Homans writes, in part of
"the 'ideology of national security,' which [Andrew Bacevich] argues has been a common feature of postwar administrations [provides] a 'highly elastic rationale for action' . . . which is used mainly to 'legitimate the exercise of executive power.'"
He adds that "the adherents of this ideology are not limited to the defenders of this administration's policies," and that "the cloak of national security can be so easily used to pernicious and counterproductive ends . . . ."
He is quite right that the cloak of secrecy has been covering executive misdeeds for decades, with continuing Congressional and judicial acquiescence.
I am bemused that Homans can say all this in such an antiseptic, detached tone. What he is talking about is the growth of tyranny, in which actual constitutional limits on power have been progressively discarded, bit by bit.
True, this process has gotten worse by an order or two of magnitude in the last eight dark years. But Homans is right that it did not begin then, and was no more appealing under earlier administrations.
Prof. Alfred McCoy, in his indispensable book A Question of Torture shows in careful but chilling detail how the origins of the current torture regime go back nearly fifty years, and include many tens of billions of tax dollars spent on clandestine torture "research," under the auspices of some of the top universities and professionals in various fields, with the blessing of numerous administrations.
In this calmly told but horrifying saga, McCoy shows only one occasion when it was --tho only briefly -- interrupted. That was in the late 1970s when the Church Committee undertook a serious investigation, which had some actual impact in terms of putting a few limits on this juggernaut.
The Church committee hardly ushered in any golden age of freedom. But it demonstrated the lesson that many today are urging us to forget, or not to learn: only exposure and consequences can slow or turn the tide of tyranny.
I remain an advocate of two, three, many investigations, on many fronts, of the manifold and multi-faceted wrongdoings of the bunch now running out their soiled string, with prosecutions to follow for at least the strongest cases, and career-ending public disgrace (and civil lawsuits) for numerous other unindicted co-conspirators.
In addition, I hope civil libertarians will pay very close attention to the judicial appointments soon to be made. We have not only let the executive get away with torture and murder, but in the process have also reduced the "independent" judiciary to the role of a supine spectator in all this.
As Homans puts this much too quietly for my taste, "Beyond the immediate question of how the administration's acts should be investigated, there is a great need for reassessing our readiness to defer to the executive in the name of national security."
Indeed. Let the "reassessment" begin at once,
November 29, 2008 10:38 AM | Reply | Permalink
Everybody finished? Fine. So I'll repeat...
Oh Swell! Another round of navel gazing, hand wringing, and euphemized beltway bloviation all with the same result:
"We're all agreed that someone else -- should do some damn thing -- at a later date."
The reality is that the ONLY moral, patriotic option: Impeachment For Torture -- is still easily doable.
And unless a majority of House members or 40 Senators wish to publicly proclaim themselves war criminals by defying our treaty obligations (and US Federal Law) in defense of the indefensible, it can be over in less than a week. (There's literally no need for "investigating" or "discussing.")
All we need are up or down votes in both bodies -- from all those Geneva-Covered Gov't Officials in Congress.
The Cowering Obama could even be confirmed to act on an interim basis immediately. (Yes, really. And it may well save us a trillion or so in the ongoing economic crisis.)
But go on. Prattle on about your pipe dreams, quasi-legalizational theories (no, you can't prosecute an unimpeached president), and pretenses that "learning" or "knowing" or "oversighting" is actually DOING something. (It isn't. Sorry lefty eunuchs).
The rest of us will just live with the fact that "fear of the divisiveness monster" -- and other forms of baseless paranoia -- have rendered us now a War Criminal Nation. And begin the generations-long process of living down Our National Shame as the "Good Germans" have had to before us.
--
November 30, 2008 6:14 AM | Reply | Permalink
"The reality is that the ONLY moral, patriotic option: Impeachment For Torture -- is still easily doable."
Couldn't disagree more.
Morality and patriotism have something to do with it but are beside the point.
We should impeach (or, at the minimum, criminally prosecute) the officers of the administration, including the President and Vice President for no reason other than we respect our constitution and the rule of law. Period.
I had the great displeasure of reading Scott Horton, who has been a stalwart writing against the excesses of the Bush administration, devote an entire essay in Harper's to finding practical, prudential, and political reasons for not prosecuting the torturers. No legal arguments were adduced, no nod to the law itself, the statutes that have been broken and lie shattered on the ground. Just a good deal of looking at prudential, result-oriented reasons NOT to prosecute.
The point of impeachment was NEVER a successful conclusion resulting in removal from office of the impeached. That was never the point.
The point is to attempt in our poor way to uphold our own laws, our own constitution. We must at least make the attempt! No matter the outcome.
What is more important, inter-party comity and national reconciliation, or the Law? We shouldn't have to stop and ponder that.
We might just as well stop teaching Civics to our children and Constitutional Law to our young adults if we are going to let a such a prolonged assault such as we just lived through, go without even a small legal challenge.
Fact-finding committees are all well and good. But really they are only an excuse to temporize doing what is needful, which is for someone to stand up and say "The law has been broken, the lawbreakers must be taken up and prosecuted according to the laws of our country." There is nothing too complicated. Torture broke several statutes. That is to say, it was a felony and the OLC memos that tried to hedge the issue were facially wrong. Bush was aware of the torture but did not act to stop it, that is to say misprision of a felony.
It is no excuse, as Mr Mukasey would have it, that he was misadvised, for then any tyrant would install advisors who would counsel him in ways congenial to his predetermined projects. And that was the way of the DOJ and OLC in Bush's terms: to provide legal cover for lawbreaking.
November 30, 2008 6:49 PM | Reply | Permalink
Wow!
I'm really surprised to be the first to say:
Duh!
Let me know if I'm wrong.
November 30, 2008 6:15 AM | Reply | Permalink
In regards to the backsliding on traditional 4th amendment rights affected by surveillance, and the effects on government by the multiplication of layers of secrecy and executive privilege and state secrets claims:
We need a constitutional amendment specifically addressing openness in government. The congress cannot do it by legislation, even with a willing Executive, for a future Executive will challenge using INS v Chadha or some other precedent case to plead infringement on his/her decision-making powers by the Article I branch.
November 30, 2008 7:19 PM | Reply | Permalink