Charlie Savage on the takeover of American democracy

In his remarks, Savage commented that we have seen through the years that Constitutional balance is always challenged in wartime. But he noted that the Bush imperial project began long before 9/11, though certainly the invoking of national security and the war on terror greased the wheels quite a bit. In a meeting of the Office of Legal Counsel right after the first inauguration, Alberto Gonzales specifically told his legal team to search for instances to expand executive power. And pulling the strings behind all of this was a man whose formative years in Washington saw the contraction of that power, and who vowed ever since then to restore it.

The invoking of inherent executive powers in the name of national security and war dates back to John Adams and the Alien & Sedition Acts. But in the late 1940s, Harry Truman invoked national security and the state secrets privilege in several instances, including starting the Korean War without a full Congressional declaration, and attempting to commandeer the steel mills for the war effort. This view of inherent powers, in particular surveillance powers which were inevitably used to spy on political opponents, continued through the age of Nixon and Watergate, after which Congress reasserted itself and put all sorts of restrictions on Presidential power. From the view of the 33 year-old White House Chief of Staff in the Ford Administration, Dick Cheney, it looked like a siege (Ford's legal counsel, by the way, was a guy named Antonin Scalia). The undercurrent of his subsequent career, both in the House of Representatives and as Secretary of Defense, was arguing for more executive power. His view was that the Founders got it wrong, that the Republic would be more secure if less people were involved in the decision-making regarding national security and war. In this argument, Cheney turns the entire system of government that has served us well for 230 years, which was designed to prevent concentrated power and remain suspicious of any governmental entity that would hold such power, on its ear. In seeking less power for Congress, even as a Congressman (see his minority report on the Iran-Contra affair, which argued that the real lawbreakers were Congressional investigators for performing oversight in the first place), Cheney essentially saw that the nation is more likely to take aggressive action if a single President is in control of national security matters, rather than a coalition of more diverse voices like the Congress. This view is also counter to traditional conservatism and their typical suspicion of government.

The unitary executive theory was a product of the Reagan legal team, and two of the staffers on that team would go on to be appointed by George W. Bush to the US Supreme Court, John Roberts and Samuel Alito. Originally the unitary executive was about Presidential control over executive agencies - after 9/11, it naturally moved into matters of national security. The new argument, conceived by John Yoo in a series of famous documents while working for the Office of Legal Counsel, was that Congress has no limiting effect on how the President can defend the nation. One of the reasons that Yoo, a midlevel staffer, was able to wield so much power in his own right was that there was no confirmed head of the Office of Legal Counsel until December of 2001, no mitigating force on the decision-makers in the White House. Throughout the time between 9/11 and then, the inmates were running the asylum. And inmate Yoo was telling the Cheney Adminstration what they wanted to hear. Yoo was using tortured and circular logic to argue a revisionist view of the Constitution, claiming that the Founders DID want a king, only an American one who was elected every four years. In one memo which had 25 footnotes, 8 of them referred to Yoo's own writing, so he essentially couldn't find anyone to approvingly cite this theory other than himself.

A lot of this is familiar; centralizing power over career bureaucracies, nullifying Congressional statutes through signing statements, asserting wide surveillance powers that even deeply conservative Justice Department officials were willing to resign over, Guantanamo, the destruction of habeas corpus, invoking state secrets at every opportunity, the Cheney energy task force meetings, pulling out of the ABM treaty, etc., etc. But Savage put it all together in a cogent argument that saw the expansion of Presidential power as not only pervasive, but easily the most successful product of Bush's two terms as President. The Administration used ingenious ways to achieve these goals; their first invocation of executive privilege was in reference to documents from a Clinton-era scandal that Congress wanted to see. It looked like this honorable gesture, Bush defending Clinton, but at root was this idea of preserving Presidential secrecy, and the precedent was made.

During the question and answer period, I asked Savage that, given that a good bit of his reporting for which he won a Pulitzer came out of things in the public record, like signing statements and court documents and such, why did he appear to be the only journalist in Washington who was connecting the dots and seeing the importance of this radical interpretation of executive power? He kind of declined to answer that question, but later on, he mentioned that he didn't arrive in DC until October of 2003. So he missed the entire post-9/11, pre-Iraq War hysteria when the traditional media became supine and afraid. The reporting in those two years was not confrontational and not rigorous. And I believe it had a lasting effect on those who were writing during that time. Because Savage was removed from that, I believe he had a completely perspective on this Administration, and wasn't dulled by the fog of fear. He said, "I'd like to think I wouldn't have been changed from having my wife and family in Washington at that time when everyone thought it was a continuing target, but I don't know."

It should be said that Savage is incredibly pessimistic about rolling back these powers (so am I). One reason is that Presidential precedent is so often cited by future Presidents as a rationale for whatever new policy they want to undertake; how many times in the past few years have we heard about Lincoln suspending habeas corpus during the Civil War? Presidential prerogative is, as Justice Jackson called it in the Korematsu opinion, a "loaded weapon" that can be pulled out at any time. So future Presidents will have an entirely new toolkit of expanded powers, cracks in the Constitutional system that can be exploited over and over again.

The other main problem is that our courts do not offer advisory opinions. And so if nobody can show standing for a case, it cannot be brought. And so most of the national security issues, which are after all secrets for the most part (we don't even fully know the extent of them), will never have the chance to be taken before a court. In effect, the Office of Legal Counsel acts like an internal Supreme Court on the executive branch, deciding if they are in compliance with executing the laws of the nation. And so you really have the executive branch enforcing the laws against itself. And that is a recipe for real disaster.

It was a fascinating evening and should be an even more fascinating book, which I am eager to read.