Tag: Executive Power

The Pigeons Come Home

Now that it looks like we’re headed for a … ugh … Trump/Clinton showdown, expect to see more articles like this:

Back in 2013, I argued that the U.S. has been building “all the infrastructure a tyrant would need, courtesy of Bush and Obama,” adding, “More and more, we’re counting on having angels in office and making ourselves vulnerable to devils.” With Trump and Hillary Clinton leading in the primaries, let’s revisit some particulars:

Bush and Obama have built infrastructure any devil would lust after. Behold the items on an aspiring tyrant’s checklist that they’ve provided their successors:

A precedent that allows the president to kill citizens in secret without prior judicial or legislative review

The power to detain prisoners indefinitely without charges or trial

Ongoing warrantless surveillance on millions of Americans accused of no wrongdoing, converted into a permanent database so that data of innocents spied upon in 2007 can be accessed in 2027

Using ethnic profiling to choose the targets of secret spying, as the NYPD did with John Brennan’s blessing

Normalizing situations in which the law itself is secret — and whatever mischief is hiding in those secret interpretations

The permissibility of droning to death people whose identities are not even known to those doing the killing

The ability to collect DNA swabs of people who have been arrested even if they haven’t been convicted of anything

A torture program that could be restarted with an executive order

Even if you think Bush and Obama exercised those extraordinary powers responsibly, what makes you think every president would? How can anyone fail to see the huge potential for abuses?

Before moving into a new house, parents of small children engage in child-proofing. Before leaving the White House, Obama should engage in tyrant-proofing. For eight years, he has evinced a high opinion of his own ability to exercise power morally, even in situations where Senator Obama thought that the president should be restrained. At this point, better to flatter his ego than to resist it. You’ll be gone soon, Mr. President, and for all our disagreements, I think your successor is highly likely to be less trustworthy and more corruptible than you were.

Insofar as you can, limit his or her ability to violate liberties or hide atrocities before you go. It may be the most significant step you can take to safeguard your legacy.

Conor, who like many libertarians, has been sounding alarms on these issue for the last decade, also calls on Congress to reclaim its power while it still can.

Lee warned about it when Bush was assuming Patriot Act, surveillance and torture powers. I warned about it when Obama assumed mass surveillance powers and started doing everything by executive order. The mantra was always the same whether you trusted Bush or trusted Obama or trusted both: it wasn’t about them; it was about the next President and the next.

And now we have a next President, either Clinton or Trump. And the public doesn’t trust either of them. Nor should they. Both have shown a disregard for Constitutional restraint and the Rule of Law. Both have shown that they will use the power of the office to engage in petty personal vendettas. Both of them could be imagined being overruled by the Supreme Court and saying, as Andrew Jackson once did, “John Roberts has made his decision, now let him enforce it.”

Yet rather than reign in this unprecedented power, our leaders seem to be expanding it. To wit:

A while back, we noted a report showing that the “sneak-and-peek” provision of the Patriot Act that was alleged to be used only in national security and terrorism investigations has overwhelmingly been used in narcotics cases. Now the New York Times reports that National Security Agency data will be shared with other intelligence agencies like the FBI without first applying any screens for privacy.

This basically formalizes what was already happening under the radar. We’ve known for a couple of years now that the Drug Enforcement Administration and the IRS were getting information from the NSA. Because that information was obtained without a warrant, the agencies were instructed to engage in “parallel construction” when explaining to courts and defense attorneys how the information had been obtained. If you think parallel construction just sounds like a bureaucratically sterilized way of saying big stinking lie, well, you wouldn’t be alone. And it certainly isn’t the only time that that national security apparatus has let law enforcement agencies benefit from policies that are supposed to be reserved for terrorism investigations in order to get around the Fourth Amendment, then instructed those law enforcement agencies to misdirect, fudge and outright lie about how they obtained incriminating information — see the Stingray debacle. This isn’t just a few rogue agents. The lying has been a matter of policy. We’re now learning that the feds had these agreements with police agencies all over the country, affecting thousands of cases.

This shouldn’t be a partisan issue: do you want Clinton or Trump to have these powers? But of course, it is a partisan issue. Congressional Democrats don’t want to reign in the power of the White House because they’re just fine with Clinton wielding that power. Republicans might be a little more principled, given their fear of Trump, but I suspect they wouldn’t mind too much if he had such power.

One way or another, we appear to be on the brink of realizing what all those civil libertarians have been complaining about for years. And the country may never be the same.

It’s Good When We Do It, Part 809

Tell me if this sounds familiar:

As a senator and presidential candidate, [Barack Obama] had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals.

But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.

Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”

Aides say many more such moves are coming. Not just a short-term shift in governing style and a re-election strategy, Mr. Obama’s increasingly assertive use of executive action could foreshadow pitched battles over the separation of powers in his second term, should he win and Republicans consolidate their power in Congress.

Amazingly … or not so amazingly … the Lefties are defending this using the exact same rhetoric the GOP once used to defense Bush’s power grabs: Congress is obstructionist; Congress is partisan; Congress is determined to see the President fail; Congress left the toilet seat up. All that might be true. But it was just as true when George W. Bush did it. We heard the same rhetoric then about mindless obstructionism and bullshit partisanship. Anytime Bush reached across the aisles, his fingers got bitten. All that’s changed is the letter after the respective names.

But there are numerous reasons why this is still bad, apart from two wrongs not making a right. Obama ran as a manager, as someone who would be the adult in the room. This kind of ridiculous tit-for-tat is supposedly beneath him, right? What it really does — what a lot of what Obama has done — is cement in place the Bush-era abuses. Indefinite detention, executive orders, signing statements, etc. could all have been stopped. But by continuing these policies, Obama has exposed the previous opposition from himself and his party as partisanship. And he has set these policies in stone. By continuing Bush’s bypassing or ignoring the legislative process, Obama has made it the way things are done. We will not thank him for that.

Second, Barack Obama is not the first President to encounter this kind of opposition. Harry Truman, in fact, ran against a “do-nothing” Congress. Skilled Presidents are able to make their opponents’ mindless opposition an electoral weakness. But Obama has failed to do so, mostly because the general public isn’t too keen on his policies anyway.

Finally, there is one and only one situation where Republican opposition can bear the blame: the failed Grand Bargain that should have emerged from the debt showdown. Accounts differ, but I think it’s quite likely the GOP balked at even a modest tax increase in exchange for Medicare reform. That’s shameful. But it’s not like Obama has been proposing a raft of great policies since then. If you look at the We Can’t Wait site, most of this involves either stuff that is an executive concern (stopping payments to dead people) or stuff that really isn’t going to stimulate the economy (mortgage refinancing, subsidies, etc.).

It’s this kind of stuff that makes me enthusiastic about the “leave town” idea I linked below. If Obama and the Republicans are unwilling or unable to solve the country’s problems, they are only going to make things worse by hanging around in Washington, passing the occasional executive order or recognizing National Tampon Day. Obama’s use of executive orders is not some bold attempt to solve our nation’s problems. It’s a misguided attempt to make it look like he’s doing something. And in the process, he is throwing away the key that George Bush used to lock up our Constitutional process. You can’t possibly defend that. Inaction is better than this.

As I seem to keep saying, neither party has any respect for the Constitution, the Rule of Law or our basic liberties. Neither has any ideas of how to fix things or the political courage to enact them. All they care about is the next news cycle. And this is just Obama’s latest: make himself appear as the bold Superman bypassing a useless Congress.

Congress may be useless, but that does not make Obama Superman.

The Decider In Chief

This is pretty fucking unbelievable:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Holder was of the same opinion as Krass. But Obama really didn’t need lawyers to tell him this; he’s a Constitutional law professor. He knows that the OLC was right. But he decided to override their opinion anyway.

The claim within the Administration is that we are mainly providing refueling and surveillance and the Libyans aren’t shooting back, so we’re not really engaged in “hostilities”. But this is precisely the kind of legal hair-splitting that drove me nuts with the last Administration. If there is any doubt, go to Congress. Respect the law.

The big question — the one that Glenn Greenwald asked on Twitter — is why? Why are they playing these kind of legal reindeer games instead of just going to Congress? It’s very likely that they would have gotten the authorization they wanted and diffused the whole controversy. Greenwald attributes it to hubris and the love of executive power. I would go further. This is another hammer tap on the wedge into the Constitutional limitations of the office. Obama is pushing the boundaries further than Bush did, expanding the power of his office just one more degree. He does this so that he can push it even further in the future.

This is why it’s critical that Congress push back on this. As Lee said so often, the problem with the powers the President is assuming is what they mean for the next guy and the next guy. But it’s more than that. The problem is what happens with the next issue, the next issue and the next issue. If Obama can bypass Congress on war, he can bypass them on a lot more.

Maybe that’s the idea.