Concordia res Parvae Crescunt
by David Swanson
Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.
Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn’t be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.
Our television news and newspapers don’t seem terribly interested in this story, despite scraping its surface with reports on the many “czars” Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That’s not so surprising, given that we’ve replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party’s “leaders” in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.
Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of “state secrets,” limit the use of presidential signing statements, or to allow more than eight members of Congress to be given “security” briefings by the executive branch prove not to be priorities for either party.
These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).
In April, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself – something that no committee has done in 75 years.
All Power to the President
Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.
Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president’s intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush’s extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor’s signing statements only as the need arises.
This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.
Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress – and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.
In those secret memos, Bush’s lawyers in the Department of Justice dutifully “legalized” numerous illegal acts, including aggressive war and torture. Despite years of public back-and-forth between the White House and the Congress over the question of whether to ban torture, any act of complicity in torture was already a felony in the U.S. code under the Anti-Torture Act, which enforced the Convention Against Torture signed by President Ronald Reagan. However, the secret Justice Department memos were taken as the final word in legality, no matter what the law said.
Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing those memos, though he has permitted consideration – whether seriously intended or not – of the possibility of prosecuting a handful of low-ranking staffers who strayed beyond the illegal policies outlined in the memos. Not only does this bestow immunity on the most prominent criminals, reversing the approach – starting at the top – that the U.S. took at the Nuremburg war crimes trials after World War II, but it has the potential to create a terrifying precedent for the future. If a president can use his justice department to legalize a crime simply by asking a lawyer to write a memo, then who can doubt that a president has something approaching absolute power?
Presidents, not Congress, do indeed make wars now, whether or not they consult Jay Bybee’s memo on the subject. They make wars without congressional declarations of war, using instead vague bills to maintain a pretense of congressional involvement – and then they don’t even comply with the terms outlined in those authorizations. Illegal (as well as unconstitutional) as they may be, these wars can be expanded into apparently permanent occupations that include the construction of gigantic military bases from which additional wars may be launched. In the process, mercenaries often take the place of soldiers, and as “private contractors” they then operate even further from congressional oversight or the law.
To invade Iraq, President Bush spent money not appropriated for that purpose. He also gave himself the power to transfer money into “black budgets” beyond the purview of all but a few members of Congress, and so use it for secret tasks signed off on by his officials. Of course, massive secret budgets under the control of the president are nothing new, though they’ve grown through the years. Neither are they constitutional or sustainable.
On October 6th, the leaders of the two parties met with President Obama and, by Senate Majority Leader Harry Reid’s account, let him know that he could end, decrease, maintain, or escalate the war in Afghanistan and Pakistan as he saw fit. The Senate had voted the previous week not to call on war commander Stanley McChrystal for public testimony about that ongoing war until after the president determines his war policy, which of course means a war policy for all of us. Two days later, in a surprising flicker of dissent, House Appropriations Committee Chairman David Obey released a statement suggesting that, contrary to everything he’d said for years, he recognizes that Congress has the power to choose not to fund those wars and thereby to end them.
As his presidency was winding down, George W. Bush concluded an unofficial treaty (though it was called a Status of Forces Agreement) with the government of U.S.-occupied Iraq for three more years of war there without feeling the slightest need for it to be ratified by the Senate. Ever since, the U.S. military has actually violated the terms of that document, while its key commanders continued to publicly state their intention to remain in Iraq beyond the end of 2011, a clear violation of the agreement. In the meantime, this White House has used the treaty as cover for an ongoing illegal occupation of Iraq with, at this point, 120,000 U.S. troops and tens of thousands of private contractors.
Is Congress Broken?
When many feared that Bush might pardon his subordinates for crimes he had himself authorized, the consensus among members of Congress and scholars was that he could, in fact, do such a thing. In some ways what both Bush and Obama have actually done is worse. With a big assist from Congress in the form of bills like the Military Commissions Act and the FISA Amendments Act, they have worked to grant immunity for crimes without even naming the criminals or revealing what they have done. Obama’s Department of Justice is now arguing, appealing, or re-appealing in various court cases to keep secret the abuses of government officials and corporations involved in torture and warrantless spying. Recently, the Justice Department even argued that, when it comes to denying information to a court or the public, telecommunication corporations must be considered a part of the executive branch of the federal government, and earlier this year the administration threatened the British government with an end to intelligence sharing if it revealed evidence of torture.
President Obama announced that he will only claim the right to hide information from a court on the grounds that important “state secrets” are involved after careful review by lawyers at the Department of Justice. This may be an improvement over the Bush years – not exactly a hard standard to reach – but notably this decision still cedes not an ounce of power to any branch other than the executive, even as Obama’s lawyers make radical “state secrets” claims in attempts to block entire court cases, rather than over particular pieces of information.
While this president is ceding modest amounts of territory claimed by the previous one, he is ceding nothing when it comes to presidential power itself. For example, the president said he would release White House visitor logs (as the Bush administration had not), just not those already recorded, including the ones that held records of the visits of deal-making health insurance executives, nor any future logs that he thinks would endanger “national security.” That offers change of a sort, however modest, but leaves it entirely in the president’s hands to decide which logs to release.
This administration has indeed released some of the secret memos that Bush’s Department of Justice used to justify torture and never shared with the public, but only when compelled by courts. The Justice Department has, in fact, fought fiercely against their release and has redacted significant sections of them before making them public.
Bush claimed for the presidency the power to detain people without charge or legal process – and then used it. Obama stood in front of the U.S. Constitution in the National Archives in Washington and asserted the same power, in violation of the right of habeas corpus found in that torn and tattered document. Director of Central Intelligence Leon Panetta and presidential advisor David Axelrod have similarly made clear that the president still claims the power to engage in “harsh interrogation techniques” but chooses not to use it. Torture in this way has been transformed from a crime into a policy choice, with the intended message apparently being that we can stop torture temporarily by choosing to elect Democrats. This is perilous territory.
Perhaps presidents simply cannot be expected to give back powers gained by the executive branch, but shouldn’t we expect Congress to work to take them back on our behalf? When Alberto Gonzales resigned as attorney general, he did so because a rapidly growing list of members of Congress signed onto a one-sentence bill directing the House Judiciary Committee to investigate possible grounds for his impeachment. Such an approach toward Judge Jay Bybee could begin to restore the power of Congress to assert itself in other areas as well, while pressuring the Justice Department to enforce the law, and potentially making public a great deal of information through the subpoenas involved in any impeachment hearing, which does not permit claims of “executive privilege.” Information subpoenaed in an impeachment hearing must be produced, or the failure to produce it can become another impeachable offense.
Many of us probably consider our current president a much nicer guy than our local congressional representative. That doesn’t change the fact that influencing a president, or even a senator, via grassroots pressure is infinitely more difficult than influencing a member of the House of Representatives.
This is not a new discovery. After all, isn’t this, in part, why the House was given the power of the purse and the power of impeachment? Being closer to the ground, that body is, by its nature, going to be more amenable to democratic pressure and direction. If we want once again to have a real hand in making our nation’s policies, our best shot – admittedly still a distinctly uphill course – is to focus on the person who represents us in the House.
Unfortunately, we have to compel each of them to do something they have come to collectively fear: taking back the power originally bestowed on them and not on behalf of their party, but of their branch of government, of the Constitution to which they’ve sworn an oath, and of the proper sovereigns of this nation: we the people. Otherwise the chief legacy of the Obama years will, like those of his immediate predecessors, be the slide from republic into empire and the continuing growth of an imperial presidency.
David Swanson served as press secretary for Kucinich for President in 2004, runs the AfterDowningStreet.org website, and is the creator of Impeachbybee.org. His new book is Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press). Visit his website. He is now touring the country for the book. You can find out when the tour will be in your town by clicking here.
Copyright © 2009 David Swanson
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The concentration of power in the executive branch has indeed been increasing for decades. But to personalize this is a mistake. Looking to electing a white knight does not solve the fundamental problem.
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Vote for NOBODY
NOBODY will keep election promises
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NOBODY cares !
If NOBODY is elected things will be better for everyone
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Here's more from the 110 year old book:
Does any of this sound familiar to you:
"The opportunities for productive work, the resources of nature have been grabbed. You cannot get pay enough or make a profit enough to enable you to get a foothold. The biggest fellows get a monopoly ahead of you every time. They have gobbled up the sugar lands, the grazing lands, the timber lands, the building sites, the coal seams, the iron ore lands, the street car franchises, the patents, the banking charters.
You will read in newspapers and in books and hear from the pulpits that they were more industrious and enterprising and frugal and that you might be as they are : that it is all "the survival of the fittest!" Nonsense ! there is room for a few on top of you and the few monopolists are quite willing to pay editors, by advertisements and in other ways, and to support clergymen to flatter them by teaching that we should all be contented with that arrangement. "
The following was taken from a book written over 110 years ago... My my... how things never change
"To overthrow the gigantic system of plunder from which we suffer we have only to contend with the "privileged classes." How many are they ? ...the Hills, Morgans, Gormans, Murphys"
"Our votes elect the legislatures who give these men their power. Our labor creates the wealth which these men take. Our authority puts these men in control of the government, the courts, the army and the police. "
"This work is written to set you thinking what you want and how to get it. If you want other people's money do not be too particular about how you get it. Slave, make use of your acquaintances, skimp, gamble with loaded dice, marry rich, invest in land, overreach, lie in with the rich, do criminal jobs for the strong who will protect you from the courts; make yourself solid, "get wisdom" the skill of the hands, "get knowledge," the training of the mind, and "with all thy getting, get" a monopoly. For the higher understanding will only be a hindrance to financial success under present conditions. "A tender conscience is a disqualification to success."
the important thing for anyone reading this is: are you speaking out? how? well, the best and easiest way to be heard and seen is to do what we do here in central florida each week. we stand on the street corners of our town with appropriate signs, and let our neighbors know what we stand for. i counted cars the other day ( we've been out there , some of us, for 5 years straight now ) and found that over 100 cars go by us every FIVE MINUTES! thus, we get lots of folks to read what we hold in our hands. folks, if only each town and neighborhood in each of our cities would have folks on street corners in peaceful protest.... then maybe what david writes about will come to pass. elected officials, for the most part, ONLY CARE ABOUT BEING RE-ELECTED.... THEY GO WITH THE ' POLITICAL WEATHER ' OF THE DAY.
Given the problem ambulatory presents in enabling congressmen and the president to be lax in thier responsibility to uses only the power/rights given to them in the Constitution, it is clearly that procedure should require some form of direct reference to the U.S. Constitution as to clearly show that their intentions were constitutional.
I beleive a congressman has proposed passing a rule that would require that specification, perhaps we should get behind that. as a procedure that might HELP congress stick with in their bounds or at the very least help us more clearly and less ambiguity identify when they fail to do so.
The problems that result from that failure, are of course as extremely serous as you say they are.
if my possible interpenetration were "put into place" the sittuation would not be between iraq and congress but rather iraq and the head of state of the United States which is the presdent who acts on behalf of and in execution of congresses laws. In this case congresses decleration of war and altermatime.
I agree this is shakey ground, and generaly bad policy to carry out our functions due to the above problems of constitutional anarchy which can come form such a vage excution process, but it is intheory a ligitimate excitation of the law. IF we assume that congress does not need to explicitly reference constitutional power words like declare war, to actually declare war.(the generally bad procedure in question)
The other question is exactly what is a war? What can a war be declare against? Exactly how must a war be declared?
All of theses things cold uses a hard concrete definition, as to eliminate the ambiguity with regard to whether or not our constitution is being upheld in this regard, and if not exactly how and where.
I suspect we will require linguistic research as well as past historical prescient traditions in reference to the same to get a better more concretely nailed down explanation and thus verification procedure.
I realize this is not the first time I have brought up this issue with you and that we have talked much over the matter, and I have agreed to ceded to yer opinion in this particular case. the matter does however bother me in the logical implications of the rules with regard to declaring and not declaring war.
Do you not recognized that to engage in war is something that normally requires instant actions or rather reaction.
While this contingency is covered in the long held believe that congress is not required to assemble and declare war immediately to defend the federation from an invasion i would also contend that congress in its power to declare war has the inherit power declare terms and condition upon which it may begin and/or end.
Let me propose this interpretation:
Suppose you looked at the AUMF was in fact a Deceleration of war on Iraq, with the predetermined ending condition of that war should Iraq conceded and uphold its obligations.
In other-words the president did not start the war, but merely determined that war declared by congress with the AUMF did not come to an end war did not end as Iraq did not meet the terms as determined by the executive of the law.(the president)
This is not unlike unconditional surrender v.s. a conditional surrender or peace treaty.
The conditions not being met, the president decided to begin to execute the war, having not obtained an agreement(treaty) or surrender(giving into the terms) ending it prior to the invasion.
Perhaps the confusing part is our attempt gain allies in the war effort at the UN. prior to the actual invasion.
You will note that we were already bombing Iraq with our air-force and amassing troops for the invasion in Kuwait, prior to the actual invasion and thus your presumed definition for the beginning of the war.
I think its perfectly reasonable to believe by all theses indications that we were already at war. That the debate at the union was mealy an attempt to get allies for the war which naturally included the presumption that they would have some choice in whether or not the war would take place. But as many people pointed out the only one with any choice in the matter was Saddam in Iraq, and whether or not he met our terms for peace.
All this being said in the interest of reliable enforcement of the Constitution rather then calaus disregard that congressional law need to site the actual legal powers in the uses of its powers.
To that end I agree they should have clearly and unequivocally wrote a bill that said "the United States here by declares war on Iraq, until such time that Iraq meets requirements or resolve the matter by some other means.".
Sure, Monorprise, I can agree that as a practical reality, the war with Iraq started in 1991, and really never stopped - it's just changed in its intensity. But, sending troops to enforce UN mandates is ceding US sovereignty and quite dangerous. this is what happened in 1991, and what the Clinton regime did for nearly a decade too.
The proper action - would have been for the president to refuse the AUMF - and demand a declaration of war (or at least the proper process). Congress is weak and ineffective and refuses to abide by the constitution. That way they can claim "it's not my fault - I just said the president could do it if he had the right intelligence"
The way this was handled, no one is responsible to the people. It's seriously wrong, seriously dangerous, and seriously damaging to our liberty and our economy. The founders would never have approved of such action.
And FYI - if your theory was put into place - about conditions being met - this would've been between Iraq and the Congress, not Iraq and the president. Congress would've issued an ultimatum threating force if not met. Instead, they directly told the president "you decide"
Illegal. They're criminals. On this and many other issues, of course.
I agree Michael,
We as a nation have been at a virtually neverending state of war since 1942, and the last time congress fulfilled its duty of a declaration of war was ww2. This needs to end, and we can help by recalling our states respective national guards (since no declaration of war has been made). If it is worthy of expending American blood or treasure, it desearves a declaration of war. A non-stop war results in continuous giveaways of rights.
I realize this is not the first time I have brought up this issue with you and that we have talked much over the matter, and i have agreed to ceded to yer opinion in this particular case. the matter does however bother me in the logical implications of the rules with regard to declaring and not declaring war.
Do you not recognized that to engage in war is something that normally requires instant actions or rather reaction.
While this contingency is covered in the long held beleive that congress is not required to assemble and declare war immediately to defend the federation from an invasion i would also contend that congress in its power to declare war has the inherit power declare terms and condition upon which it may begin and/or end.
Let me propose this interpretation:
Suppose you looked at the AUMF was in fact a Deceleration of war on Iraq, with the predetermined ending condition of that war should Iraq conceded and uphold its obligations.
In other-words the president did not start the war, but merely determined that the declared war with the AUMF did not come to an end war did not end as Iraq did not meet the terms as determined by the executive of the law.(the president)
This is not unlike unconditional surrender vs conditional surrender or peace.
The conditions not being met, the president decided to begin to execute the war, having not obtained an agreement(treaty) or surrender(giving into the terms) ending it prior to the invasion.
Perhaps the confusing part is our attempt gain allies in the war effort at the UN. prior to the actual invasion.
We were already bombing Iraq with our air-force and amassing troops for the invasion in Kuwait.
There is every reason to beleive we were already at war.
Monorprise - thank you for your perspective on these issues.
One important point - on the "declaration of war" vs "AUMF" discussion.
The words used by Congress are not the important thing - it's the process. Whether "authorization to use force" is the verbiage, or "declaration of war" is - doesn't matter.
A proper use of the war-declaring powers under the constitution requires the Congress - as the representatives of the people and the states - determines that the country is going to war, and not the executive. That must, I think is easy to agree on.
Now - in 2002 - if Congress had voted on a resolution that said, in effect - "The United States will be engaging in hostilities with Iraq - and the executive branch is authorized to use whatever force it deems necessary to carry out this task" that would've been constitutional.
that didn't happen.
What the Congress did in the AUMF was essentially to say to the President - "YOU decide if we're going to engage in hostilities with Iraq...just let us know what YOU decide"
There's little that could be more unconstitutional than that. And no founder - not a one - is on record supporting such decision making in the hands of the President. Not even Hamilton.
After reading this, while I think it may go a bit too far in some areas, maybe in the interest of enforcing the constitution it might be a good idea to amendment the constitution with this simple line:
"The president shall not have the power to pardon any person for act in which they themselves were involved."
Of course no one can be expected to give back any power, it goes against the very nature of how power corrupts people, the system must enforce itself by relying upon the other party's, namely the ones who stand to lose the ability to enforce the constitution.
PS: the house was given the power of the purse because originally the federal power to tax directly was directly related to the population of the state, and thus giving the house executive power of the purse in originating bills they keep the power to spend in sync with the power to tax.
While even then before they broke the tax relationship with the 17th amendment this was obviously not a perfect sync, it was a far better sync then what we now have.
As to what I disagree with on is the matter of what constitutes torches, if Congressional law defined water boarding and everything else they did as torches then while the president must yield to the laws definition, I must disagree with the law.
I must also still contend the vote to Authorization of the uses of force as a defacto deceleration of war, as what is war if it is not the uses of force against an external nation/organization. While you may demand more explicit language, and I conseed that is reasonable and should have been adopted, I also See very little practical difference.
Even the point that War can only be declared on defined and recognized states is some what pointless given what is and is not a state is a matter of arbitrary opinion always has been. That's why getting recognition is such an issue for new country.
So if that is to be the constitutional standard requirement for a deceleration of war it is important that we define a nation or country as something which we do not necessary recognize as such and yet is still capable of waging war upon us, requiring a likewise external response to stop them.
People who think the problems we face today started in January 2009 - or ended then, for that matter - couldn't be more off base...
Up until the last few administrations? Are you serious? This has been a major problem for a century. Mind you, each president expands power much more than the last, but each generation says "wow, this crook is the worst!"
I never thought I'd think back to the Clinton years with Nostalgia!
Up until the last few administrations, the presidency was viewed as a figure-headed monarchy, possessing powers limited in scope and influence. As we continue to descend into "the one world government", it has become necessary for our executive branch to expand these powers, to protect our commerical/industrial interests in all corners of the globe. A good example of proving this, entails our lack of involvement in Daffur. There is no oil or wealth to be protected in this remote part of Africa. Only a patriotic fool believes that Iraq wasn't mostly about oil (in spite of the fact that almost every product/by product we have, is either made from or into petroleum. It is our most important resource next to water. Research Rommel's quote regarding how to convince a country's citizens to support any war effort.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
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