Archive for April, 2008

McCain draft

April 14, 2008

John McCain

John McCain has not taken on the issue of executive power directly. In his speeches he has expressed frustration with aspects of the Bush agenda—particularly for the way the Administration has undermined congressional oversight and used signing statements. McCain opposes Bush’s torture policies on moral and strategic grounds. He has criticized the way the President neglected to get congressional authorization for domestic surveillance program. But unlike Democrats, he rarely if ever frames his opposition to these initiatives in constitutional terms.

When he does talk about distortion of constitutional democracy, he aims his sight at the judiciary. In several forums organized by the conservative Federalist Society, he argued that the greatest threat facing democratic government were activist judges, not a disproportionately powerful President or weakened Congress.

Views of executive power

McCain has spoken out against big government, but not Bush’s build-up of the executive branch. Speaking at the Federalist Society after the 2006 mid-terms, McCain argued that Republicans lost because they neglected the principle of limited government. Though he subtly criticizes his own party’s loss of its own ideals, the speech is remarkable for how it’s not about executive power.

He articulate a small government vision that would seem to include a limited executive.

[The Founders] realize[d] something important about power: if its exercise isn’t limited, it will become absolute. Because power always tries to expand. It’s a law of nature, of human nature… The solution that our Founders devised guides us to this day: limited government. Understanding the natural tendency of power to expand, the Founders designed our government to restrain it. They created a Federal government of enumerated powers, of three branches whose reach was limited by the powers of the other branches, by the powers reserved to the states, and by the rights reserved to individuals… By limiting government in these ways, the Founders attempted to assure that no one branch could dominate the others…

Then McCain told the roomful of conservatives that judicial activism posed the greatest threat to our constitutional system. “Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of an arbitrary executive, or legislative, or state power,” he said. He’s since repeated the point several times. In a February 2008 online candidate debate by the Federalist Society, he made the same case about the dangers of judicial activism.

I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

His opposition to judges who “legislate from the bench” is in part a rejection of judicial restraint on executive power. He told the Federalist Society—a group that strongly supports the Bush/Cheney view of the presidency—that his “judicial appointees will understand that it is not their role to usurp the rightful functions and powers of the co-equal political branches. I will look for candidates who respect the lawmaking powers of Congress, and the powers of the President.” McCain here echoed the views of other conservatives at the Federalist Society who have held that judges lack the authority to constrain the president’s national security strategies.

His antipathy for “activist judges” does not necessarily equate to a rejection of constitutional balance of powers. In his response to the Boston Globe‘s candidate survey on executive power, McCain stated that the President should execute laws that Congress passes, no more and no less. “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,” he responded to a question about warrantless surveillance. To a follow-up question, he stated, “I don’t think the president has the right to disobey any law.”

Checks and balances

On his signature issues of torture and ethics reform, John McCain has fought for stronger congressional oversight in the face of Administration stonewalling. But he has also called for limits to congressional oversight and recognition of executive autonomy.

He has strongly criticized what he sees as Democrats’ efforts to “micromanage” the war by denying funding and re-authorization. As early as the 2002 debate over the initial Iraq invasion, McCain called for Congress to recognize that its responsibilities are limited to funding and declaring war, and the rest falls under the authority of the president.

There is a reason why the Constitution vests shared power in the president and the Congress on matters of war. But there’s also a reason why the Constitution recognizes the president of the United States as commander in chief… No resolution tying the president’s hands or limiting the president’s ability to respond to a clearly defined threat can anticipate the decisions the president will have to make in coming weeks and months with American forces deployed overseas on his orders to defend American security… That’s why there is one commander in chief, not 535 of them. Restricting the president’s flexibility to conduct military action against a threat that has been defined and identified makes the United States less capable of responding to that threat.

Though he sees a limited role for Congressional oversight in the conduct of war, McCain has also called for greater transparency and oversight as a matter of general principle. In a May 21, 2007 speech to the Oklahoma State Legislature, McCain pledged that as president he would submit to public scrutiny and avoid secrecy: “We’re going to make every aspect of government purchases and performance transparent. Information on every step of contracts and grants will be posted on the Internet in plain and simple English. We’re not going to hide anything behind accounting tricks and bureaucratic doubletalk that a linguist with a PhD in accounting couldn’t decipher.”

He calls for the administration to submit to more congressional hearings. The President’s failure to get authorization on domestic wiretapping—a security measure McCain generally supports—prompted the candidate to question the president’s legal authority. In a January 2006 Fox News broadcast, he asked of Bush’s lack of authorization, “why not come to Congress? We can sort this all out. I don’t think—I know of no member of Congress, frankly, who, if the administration came and said here’s why we need this capability, that they wouldn’t get it. And so let’s have the hearings.”

Executing the war on terror

McCain strongly opposes torture and calls for closing Guantanamo and restoring the Geneva Conventions. (Though some critics have questioned his commitment.) His position is based on both principles and strategy. In a recent major foreign policy speech at the Los Angeles World Affairs Council, he called for restoring America’s moral leadership: “America must be a model citizen if we want others to look to us as a model. How we behave at home affects how we are perceived abroad. We must fight the terrorists and at the same time defend the rights that are the foundation of our society.” He also believes torturing our enemies will come back to haunt us. In a side-swipe at the Administration, he raised this concern to the Republican Jewish Coalition on October 16, 2007:

Those who have never served in the military, they want to torture. Why is it? Why is it that we who have served in the military are so opposed to torture? Because we have an obligation to the men and women who are serving this nation, that if they fall into the hands of the enemy, that they won’t be tortured.

He agrees with the President on suspending habeas corpus for detainees and permitting warrantless surveillance. He has defended his vote to extend the President’s warrantless surveillance program by questioning the political motives of Democrats on key oversight committees. In a February 7, 2008 speech at the Conservative Political Action Committee, he called for less oversight on national security: “It is shameful and dangerous that Senate Democrats are blocking an extension of surveillance powers that enable our intelligence and law enforcement to defend our country against radical Islamic extremists.”

McCain calls for greater American cooperation in international institutions. He calls for a “league of democracies” and a stronger NATO, G-8, Kyoto protocols, and nuclear nonproliferation pacts. At the heart of his vision for greater internationalism is a belief in America’s moral role in the world. He told the Los Angeles World Affairs Council last month that we should seek support from the world community when we determine military action is necessary:

Recall the words of our founders in the Declaration of Independence, that we pay “decent respect to the opinions of mankind.” Our great power does not mean we can do whatever we want whenever we want, nor should we assume we have all the wisdom and knowledge necessary to succeed. We need to listen to the views and respect the collective will of our democratic allies. When we believe international action is necessary, whether military, economic, or diplomatic, we will try to persuade our friends that we are right. But we, in return, must be willing to be persuaded by them.

He made mostly the same argument in a speech at the Hoover Institution on May 1, 2007—with an important wrinkle: “Like all other nations, we reserve the sovereign right to defend our vital national security when and how we deem necessary.”


Obama draft

April 14, 2008

Barack Obama

Barack Obama is outspoken in criticizing how President Bush has aggregated and used executive power, but inconsistent when he discusses what he would do with that power once in the Oval Office. In instances where Bush’s policies have infringed on civil liberties, Obama pledges to scale back power with greater transparency and involvement by the other branches. But he reserves the right for a president to exercise a strong hand in matters of national security. He criticizes Bush’s constitutional record less for the fact that he expanded executive power, and more for why and how this expansion occurred.

He often references his earlier career as a University of Chicago constitutional law professor as a way of emphasizing his appreciation of constitutional checks-and-balances and protections of civil liberties, but he doesn’t have much of a voting record on these questions.

Views of executive power

Obama is explicit in condemning what he sees as Bush’s power grab. In a key foreign policy speech at DePaul University last October 2nd, he told the crowd that the “government in this country is not based on the whims of one person, the government is of the people, by the people and for the people.” On March 31st in Lancaster, PA he described the expansion of executive power as an issue of major concern and promised to actively take steps to scale it back: “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”

In spite of this harsh language, Obama does not categorically reject the need for a strong presidency. When crititicizing Bush, he tends to assert the need for strong intelligence gathering mechanisms—tools that would fall within the executive branch: “We face real threats. Any President needs the latitude to confront them swiftly and surely,” he told the crowd at DePaul in October. Bush’s great sin was not that he used an overly strong hand to protect the nation, but rather that he used it for partisan motives and with scant attention to civil liberties. To the crowd in Chicago last October, he asserted that

we’ve paid a heavy price for having a President whose priority is expanding his own power. The Constitution is treated like a nuisance. Matters of war and peace are used as political tools to bludgeon the other side… I’ll turn the page on the imperial presidency that treats national security as a partisan issue – not an American issue.

In a foreign policy speech at the Woodrow Wilson Center at Princeton University in August 2007, Obama criticized Bush’s disinterest or inability to find a balance between civil liberties and national security, and promised to do better:

I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wiretapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war; no more ignoring the law when it inconvenient. That is not who we are, and it’s not what is necessary to defeat the terrorists.

He makes the case that the worst excesses of the Bush Administration happened behind closed doors—executive orders that didn’t involve congressional oversight. Responding to an audience question in the speech last month in Lancaster, he defended his 2006 vote to re-authorize the Patriot Act by asserting that constitutional abuses happened through executive orders rather than misguided legislation. In other words, Congress can only do so much when the President doesn’t submit to oversight.

The Woodrow Wilson Center speech illustrates how Obama asserts both national security and civil liberty goals simultaneously and in the context of one another. Though his speeches tend to be thin on detailed prescriptions for how he would balance civil liberties and national security, he points to transparency and oversight as critical tools. Bush’s constitutional abuses stem from his administration’s secrecy and dishonesty, and these tendencies have made our nation more vulnerable. He made this point at DePaul:

We get subjected to endless spin to keep our troops at war, but we don’t get to see the flag-draped coffins of our heroes coming home. We get secret task forces, secret budgeting, slanted intelligence, and the shameful smearing of people who speak out against the President’s policies… We don’t need another President who thinks big but doesn’t feel the need to tell the American people what they think. We don’t need another President who shuts the door on the American people when they make policy.

Greater transparency, he argues, is the best and only way to balance civil liberties and the expansion of executive branch functions that are necessary in the age of terrorism. He pledges to “turn the page on a growing empire of classified information, and restore the balance we’ve lost between the necessarily secret and the necessity of openness in a democratic society… We’ll protect sources and methods, but we won’t use sources and methods as pretexts to hide the truth” (DePaul, October 2, 2007). He recognizes that transparency will involve scaling back some of the powers he would inherit, but nonetheless asserts his commitment to “a new era of openness.”

[W]hen I’m president, one of the first things I’m going to do is call in my attorney general and say to him or her, “I want you to review every executive order that’s been issued by George Bush, whether it relates to warrantless wiretaps or detaining people or reading e-mails or whatever it is, I want you to go through every single one of them and if they are unconstitutional, if they’re encroaching on civil liberties unnecessarily, we are going to overturn them.

Checks and balances

A more transparent executive branch would revive the other branches, Obama argues. He pledges to submit his office to greater judicial and legislative oversight—but holds that there are constitutional limitations to that oversight.

Though he doesn’t discuss judicial review often, when he does he states that courts must play a stronger hand in reining in executive power and protecting civil liberties. At a MTV/MySpace forum in October 2007, he called for “a Supreme Court that is not just giving the president a blank check for whatever executive power grab he or she is engaging in.” The courts must also play a hand in detainee prosecutions and ensuring the appropriateness of domestic surveillance.

I have faith in America’s courts, and I have faith in our JAGs. As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists… The FISA Court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary. (Woodrow Wilson Center, August 2007)

He believes Congress should have a greater role in foreign policy than that afforded during the Bush years. He promises as president he would hold regular meetings with Congressional leaders from both parties before taking military actions. In the DePaul speech he promised “a standing, bipartisan Consultative Group of congressional leaders on national security. I will meet with this Consultative Group every month, and consult with them before taking major military action.”

But as he charges Bush with a power grab, he also reserves blame for the other branches—especially Congress—for letting it happen: “Congress rubber-stamped the rush to war, giving the president the broad and open-ended authority he uses to this day. With that vote, Congress became co-author of a catastrophic war,” he told the crowd gathered at the Woodrow Wilson Center in August. His criticism of the Congress that authorized the war—one in which he was not yet serving—is clearly a campaign strategy against opponents who both voted to authorize the Iraq war.

The American people weren’t just failed by a president, they were failed by much of Washington, by media which too often reported spin instead of facts, by a foreign policy elite that largely boarded the bandwagon for war, and most of all by the majority of a Congress, a co-equal branch of government, that voted to give the president the open-ended authority to wage war that he uses to this day. So let’s be clear. Without that vote, there would be no war.

Though he says Congress dropped the ball, he also asserts presidential authority in conducting foreign affairs. Defending his decision to provide the president continued funding for further Iraq operations, he told the Chicago Council on Global Affairs in November 2006, “Ultimately… the president is the commander in chief. The only way to force the president’s hand would be in some ways to restrict funding for the war effort in Iraq. That is not something that I am prepared to do.”

He echoed this view on the limited ability of Congress to rein in the President in the foreign policy speech at DePaul. He suggests that executive power will naturally expand, and the only check on that expansion is a muscular and assertive Congress.

After Vietnam, Congress swore it would never again be duped into war, and even wrote a new law—the War Powers Act—to ensure it would not repeat its mistakes. But no law can force a Congress to stand up to the President. No law can make Senators read the intelligence that showed the President was overstating the case for war. No law can give Congress a backbone if it refuses to stand up as the co-equal branch the Constitution made it.

His admission that executive power is naturally expansive is no less remarkable because he promises he would accept and welcome restraints imposed by Congress. What if he disagreed with those restraints? This critical issue remains unaddressed.

Executing the war on terror

Though he regularly calls for multilateralism and diplomacy, Obama doesn’t reject unilateralism in principle. “We must always reserve the right to strike unilaterally at terrorists wherever they may exist,” he told the Chicago Council on Global Affiars in November 2006. He dismisses the neonconservative idea of promoting democracy through regional occupation: in the Woodrow Wilson speech, he described the decision to invade Iraq as a reflection of a “rigid 20th century ideology that insisted that the 21st century’s stateless terrorism could be defeated through the invasion and occupation of a state.” He does believe, however, that America and its allies must have the authority to cross borders in the war on terror.

In the same speech, he raised some eyebrows when he pledged to move troops from Iraq to Pakistan to pursue Bin Laden. His critics saw the speech as both dangerously naïve and possibly even masking a hawkish agenda.

Obama has unambivalently pledged to close Guatanamo and cease the practice of torture and extraordinary rendition. He describes these strategies as both morally indefensible and a clear demonstration of excessive executive power. But he does call for broad counter-insurgency capabilities—with clear limits to those capabilities: “I will not hesitate to use military force to take out terrorists who pose a direct threat to America, and this requires a broader set of capabilities, as outlined in the Army and Marine Corps’ new counter-insurgency manual” (Woodrow Wilson Center, August 2007).

Clinton draft

April 13, 2008

Hillary Clinton

Hillary Clinton envisions a strong presidency. But she believes it must be constrained by the balance of powers set forth in the Constitution. She espouses a fundamental belief in the rule of law and a conviction that Bush subjugated this most critical element of our constitutional system to his own partisan ambitions and ideology.

Her candidacy has been shaped by her husband’s years as president and her own as First Lady in countless ways. Her position on executive power is no exception. Take, for example, her response to Bush’s commutation of Scooter Libby’s sentence. She described the move in a July 2 speech as “elevating cronyism over the rule of law” and another indication “that this administration has no regard whatsoever for what needs to be held sacred.” But she neglected to mention Bill Clinton’s controversial pardons, and then found herself challenged on this inconsistency. So while she does present a coherent rhetorical position on executive power, both hers and her husband’s record often makes this position less clear.

Views of executive power

Hillary Clinton has spoken on the record of her belief in the importance of a strong executive. In a 2003 interview with ABC’s George Stephanopoulos, she defended her husband’s decision to send troops to Kosovo without congressional authorization:

I’m a strong believer in giving the executive authority. I wish that when my husband was president people in the Congress had been more willing to recognize presidential authority. You recall, we didn’t get authority to go into either Bosnia or Kosovo and I think that was a mistake.

She believes Bush has consistently misused this authority. A common criticism she makes of Bush is that the President violated cherished democratic principles in his use of executive authority. In October 2006 she told the Council on Foreign Relations, “At the end of the day, you have to question whether this administration has led with our values or used our values as a cloak to justify its ideology and unilateralism.” She argues that Bush’s treatment of the powers of his office amounts to a constitutional crisis. At the Campaign for America’s Future conference on June 20, 2007, Clinton said that “our Constitution is being shredded… It is a stunning record of secrecy and corruption, of cronyism run amok. It is everything our founders were afraid of, everything our Constitution was designed to prevent.”

Though she endorses a strong president, she believes that Bush exceeded these authorities by attempting to expand his power outside of the constitutional system of checks-and-balances using tenuous legal arguments. She expounded this view in an interview with the London Guardian last October.

Other presidents, like Lincoln, have had to take on extraordinary powers but would later go to the Congress for either ratification or rejection. But when you take the view that they’re not extraordinary powers, but they’re inherent powers that reside in the office and therefore you have neither obligation to request permission nor to ask for ratification, we’re in a new territory here… There were a lot of actions which they took that were clearly beyond any power the Congress would have granted or that in my view that was inherent in the constitution. There were other actions they’ve taken which could have obtained congressional authorization but they deliberately chose not to pursue it as a matter of principle.

Her position is not unlike that of Jack Goldsmith, former head of Bush’s Office of Legal Counsel and a prominent defector from the Bush/Cheney project. Like Hillary Clinton, Goldsmith is a strong supporter of executive power. But he differs from Bush and Cheney is his view of where that power comes from. He and Hillary Clinton appear to share the position, succintly described by Slate columnist Bruce Reed, that “Bush and Cheney fail to understand that the extent of a president’s power doesn’t rest in how far he is willing to stretch the statutes or the Constitution. Presidential power comes from the force of a president’s argument, the righteousness of a president’s cause, and the support and consent of the American people.”

Checks and balances

Clinton argues that Bush operated outside of constitutional systems through which he would have been able to accomplish his goals—including improving security and intelligence functions with a more muscular executive branch. In a key 2006 speech on privacy and wiretapping to the American Constitution Society for Law and Policy Convention, the candidate laid out this argument.

If the executive needs additional authority to legitimately monitor and track terrorists, it should not just simply overlook and ignore the law. If the president feels he needs more flexibility in order to protect our security, he should engage Congress… It is a cause for deep concern that the administration did not seek changes to the FISA law to legitimize its surveillance program, but instead deliberately chose to act outside of the law.

Clinton argues that Bush not only acted outside the Constitution, but he also sought to reshape federal government in the process. In a September 17, 2007 speech to the SEIU, Clinton referenced the unprecedented expansion of powers in the Office of the Vice President as an indication of the degree to which the Administration has rejected tradition and constitutional processes.

You know, our founders, who wrote our Constitution, understood human nature. That’s why they had checks and balances. That’s why we had three different branches of government for separation of powers, at least until Vice President Cheney came along and said he was part of a heretofore never discovered fourth branch of government.

She believes the Constitution provides the necessary mechanism for responding to the challenges of the 21st century, and that the Bush Administration is dangerously incorrect in thinking otherwise. She told the American Constitution Society that the “answer to this delicate security dilemma is neither blank checks nor blanket opposition. It is to use the judicial and legislative mechanisms we have to build a consensus about what is necessary, what is legal and what is effective.”

Constitutional checks-and-balances are only possible when different branches and the public have enough information to perform meaningful oversight. She underscored this point at American Federal of State, County, and Municipal Employees June 2007 Leadership Forum: “I believe in balance. I think it’s the genius of our political system: Checks and balances, separation of powers… Let’s reform this government, make it more transparent…” Though her record as First Lady may suggest a different position, she calls for greater transparency in the executive branch. Transparency is the lynch-pin of effective constitutional democracy. In November 2005, she told the American Bar Association when “we do not fear transparency into the workings of our government, when we aim to hold every part of our government accountable, then we—much more than in words, but in deeds—promote the rule of law.”

Executing the war on terror

Clinton calls for greater congressional oversight in national security matters. She calls for submitting President Bush’s most controversial initiatives—torture, indefinite detention and the suspension of habeas corpus, extraordinary rendition, and domestic wiretapping—to congressional authorization. On the Senate floor prior to her vote against the Military Commissions Act, Clinton strongly denounced the administration for rail-roading the problematic legislation and the Republican majority for letting it happen. “The president acted without authority and it is our duty now to be careful in handing this president just the right amount of authority to get the job done,” she said. She sees the legislation as “giving the Bush-Cheney Administration a blank check to torture, to create secret courts using secret evidence, to detain people, including Americans, to be free of judicial oversight and accountability, to put our troops in greater danger.”

She asserts that domestic surveillance must take place within an explicit legal framework established through legislation and subject to judicial oversight. “I’m proposing that we have a new privacy bill of rights… and a new national security consensus setting out clear rules to allow the government to use new intelligence techniques within a rule-of-law framework, and making sure that the public knows its rights and the government’s limits,” she said at the American Constitution Society for Law and Policy Convention on June 17, 2006. Though she calls for transparency and a clear legal framework, she also suggests that the president can operate outside this framework in extraordinary circumstances. In the same speech she elaborated on these exceptions:

We can allow for carefully defined exceptions to the warrant requirement in the immediate aftermath of war, and allowances can be made for greater flexibility — for example, warrants after the fact in cases of true emergencies… Unchecked mass surveillance without judicial review may sometimes be legal but it is dangerous. Every president should save those powers for limited critical situations. And when it comes to a regular program of searching for information that touches the privacy of ordinary Americans, those programs need to be monitored and reviewed, as set out by Congress in cooperation with the judiciary.

Clinton’s position on torture has changed over time. At times she made an exception for the “ticking-time bomb” scenario. Though she has repeatedly opposed extraordinary rendition and Guatanamo, she hasn’t addressed the programs initiated during her husband’s presidency. These discrepancies have led some critics to describe her positions as more vague and less direct than Obama’s.