Clinton draft

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.

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