Executive Power under a Clinton Presidency
Andrew Sullivan and Radley Balko warn that a Hillary Clinton administration is likely to be as bad as the Bush/Cheney administration when it comes to aggrandizing executive power. Sullivan writes:
Moreover, nothing that happened in the Reagan, Bush/Quayle, or Clinton administrations even holds a candle to what has happened during this administration. If anyone has any doubt about this, I highly recommend reading Charlie Savage's new book, which exhaustively chronicles and compares the slow aggrandizement of executive power during all of these administrations. It is the definitive work on this subject.
There is no reason whatsoever to think that Hillary Clinton will adopt the Cheney/Addington/Yoo approach to executive power if she becomes president. No one who would possibly be tapped to serve in Clinton's Office of Legal Counsel would subscribe to their fringe views. So there is no way that a Clinton administration would adopt anywhere near as hard a line on executive power issues as this administration has. It's just not possible.
Moreover, nothing could possibly do more to reawaken Republican concern for civil liberties and checks and balances than a Clinton presidency. Indeed, the combination of a massive Bush hangover and the return of conservative Clinton paranoia might be just the perfect storm necessarily to roll back some of the excesses of the Bush/Cheney era.
As readers of this blog know, Clinton is not my preferred candidate, but the idea that she's Cheney in a pant-suit is just crazy.
You want a change from the Bush era? Only pure partisans think a third term for a Clinton co-presidency would do it. Yes, it would give every partisan Democrat a thrill. But if you care about the damage done by this president to the constitutional order, don't believe for a minute that the Clintons would reverse it. They love their power.This is nonsense. While it's certainly true that Bill Clinton, like every other modern president, took a strong view of executive power during his years in the White House, it cannot credibly be argued that, as a general matter, the Clinton administration was more aggressive in asserting executive power than the Reagan and Bush/Quayle administrations. Reagan, for example, took unprecedented (at the time) steps to assert control over federal agencies. The Unitary Executive Theory was the brainchild of his Justice Department. And the Iran-Contra affair is, to this day, one of the boldest and most blatantly illegal assertions of executive power in American history. While the Clinton administration didn't reject all of the Reagan/Bush era precedents (as some people hoped it would), Clinton didn't push the envelope nearly as much as his predecessors, and when he did, it was usually for instrumental reasons (such as to thwart partisan investigations of him) rather than ideological reasons. In other words, he didn't seem to have any desire to take aggressive positions on executive power solely for the sake of taking aggressive positions on executive power (as is clearly the case with the current White House).
Moreover, nothing that happened in the Reagan, Bush/Quayle, or Clinton administrations even holds a candle to what has happened during this administration. If anyone has any doubt about this, I highly recommend reading Charlie Savage's new book, which exhaustively chronicles and compares the slow aggrandizement of executive power during all of these administrations. It is the definitive work on this subject.
There is no reason whatsoever to think that Hillary Clinton will adopt the Cheney/Addington/Yoo approach to executive power if she becomes president. No one who would possibly be tapped to serve in Clinton's Office of Legal Counsel would subscribe to their fringe views. So there is no way that a Clinton administration would adopt anywhere near as hard a line on executive power issues as this administration has. It's just not possible.
Moreover, nothing could possibly do more to reawaken Republican concern for civil liberties and checks and balances than a Clinton presidency. Indeed, the combination of a massive Bush hangover and the return of conservative Clinton paranoia might be just the perfect storm necessarily to roll back some of the excesses of the Bush/Cheney era.
As readers of this blog know, Clinton is not my preferred candidate, but the idea that she's Cheney in a pant-suit is just crazy.
posted by A.L. at 4:05 PM
17 Comments:
I'll accept everyone's congratulations for having said this very same thing all along. And unlike Sullivan, I'm not nuts.
Consider, as a single example out of innumerable others, her ulawful eavesdropping on an unlawfully intercepted private conversation. Do you imagine for one second that when she is responsible for the defense of the nation she will refrain from eavesdropping on terrorists' calls to Americans without a warrant?
Who are all the Chinese waiters in Los Angeles, the ones the L.A. Times can't locate, who have been writing $1,000 checks to her campaign?
Do you think she hesitated for as much as a second before accepting advice from admitted criminal Sandy Berger?
Do you truly imagine that she turned a $1,000 investment in cattle futures into $100,000 by reading the Wall Street Journal?
Tell us how her fingerprints got onto the documents that were found in her White House office after having been under subpoena for two years? And tell us how those documents got into that office without her knowledge in the first instance.
This presidency is going to be more fun than a barrel of monkeys.
I like Hillary. And she will be a good president. Sullivan always gets a little hysterical whenever he writes about her. It's sad-he's so talented, but he can't control his hatred of her.
Do you imagine for one second that when she is responsible for the defense of the nation she will refrain from eavesdropping on terrorists' calls to Americans without a warrant?
The context of your question implies that you think that it would be wrong of her to do this. Does that mean that you oppose the current Administration doing this?
Regardint the answer to your question, the current Congress is working hard to permanently give all Presidents, present and future the legal authority to do exactly that...at the behest of President Bush. If you don't like the idea of Hillary Clinton being able to listen to your grandmother talking on the about Mediterraniun cooking, you should think about something that I've been saying for some time. "Never give the President power that you would not want your worst-nightmare-President to have.
However, I'm not really worried about the prospect. I have every confidence, based on the Presidency of Senator Clinton's husband, that her term would be exemplified by a never-ending organized effort to reduce/eliminate the powers that Bush Administration was granted/arrogated to itself. Senator Clinton is not my ideal canidate either, but Republicans would get behind a bill to put severe limits on her powers as President even if the Martains were landing on the Whitehouse lawn. That might be a useful in the next few years.
You are drawing an incorrect inference from my question. I asked the question not because I think it would be wrong, but because I think AL (and most who post here) think so.
And I would happily volunteer to allow the government to listen to my grandmother's converstations about Mediterranean cooking if those conversations originated from, or were directed to, a phone number of a person possibly engaged in a plot to murder Americans. And that's not even a close call. I would consent for the same reason that I consent to those highly intrusive searches every time I get on an airplane.
I don't know why you base any expectation about Mrs. Clinton's presidency on the experience of her husbands's tenure in that office, but bear in mind that during his presidency the government conducted a warrantless break-in at the home of a suspected spy--an American citizen on American soil. (And the break-in was quite appropriate, in my view.)
I'm wracking my brain to come up with those presidential powers that Bill Clinton voluntarily surrendered, but can't come up with any. And neither you nor I can be confident of what President Hillary will do in that regard, but I'd advise against holding my breath waiting for her to surrender any power at all.
And I can't speak for what Republicans might do, but I surely wouldn't get behind any effort to limit her powers to combat the threat posed by terrorism. I believe the cost of a series of nuclear detonations on American soil would be so catastrophic as to warrant ceding quite extraordinary powers to my worst-nightmare president, and Hillary comes close to being just that.
Take a moment to reflect on the powers exercised by one A. Lincoln during his presidency.
And I would happily volunteer to allow the government to listen to my grandmother's converstations about Mediterranean cooking if those conversations originated from, or were directed to, a phone number of a person possibly engaged in a plot to murder Americans.
I hate it when people say stuff like this. Talk about missing the point. You're just assuming away the problem. Of course you would have no problem under this hypothetical scenario. Who would? The problem is: who determines that the number belongs to someone "engaged in a plot to kill Americans?"
The reason we use a warrant system is to ensure that the government is in fact only spying on the terrorists.
Take a moment to reflect on the powers exercised by one A. Lincoln during his presidency.
This is a pretty tired talking point, too. Perhaps there's a small difference between full scale civil war and fighting a small band of foreign terrorists. You think?
Also, I'd encourage you to read Jack Goldsmith's recent book. Goldsmith is a lifelong Republican and outspoken advocate for strong executive power, and in his book he lays out the many differences between the way Lincoln approached issues of executive power and the way Bush did. He points out that Lincoln exerted extraordinary powers only reluctantly and he made sure that whenever he did so, he provided full disclosure to Congress and the public, in an effort to get them behind what he was doing and make it more legitimate. Bush, by contrast, exerts power for the sake of exerting power (he and Cheney have been explicit about this goal) and he made his most controversial moves in secret, away from the eyes of Congress and the public.
burp.... thffffpppptttt... oooorrrrp... belch... thffffptptptptptpt
Thanks for opening your orifices, neutral...
Clinton isn't the worst candidate out there, but she isn't the best one either.
It's true that if she is elected, the Republicans will rediscover States' rights and start nagging the White House to be more deferential to Congress, but they will also attack her so furiously that she'll be forced to use her expanded powers to defend herself (as you say Clinton did).
Moreover, if Clinton really does try to reduce the amount of power the White House has, the Republicans will attack her just as hard - for abandoning her leadership role in the "Global War on Terror".
If Americans are looking to have a nicer couple than George and Dick in the White House, then Hillary Clinton is as good as any. If what they want is to have the powers of the government return to a more clearly dinineated and limited state, there are better people around than her.
The hypothetical to which I responded was not my own; it was posed by David Hunt. If you don't like it, give me a different one.
As to "who determines that the number belongs to someone 'engaged in a plot to kill Americans?," I would wholeheartedly prefer to leave that determination to the professionals at the NSA as opposed to, say, Judge Lee Sarokin, or Judge Harry Pregerson, or Judge Stephen Reinhardt, and etc. Not only are the NSA professionals the most qualified people on earth to make such determinations (and the judges have no qualifications at all), the professionals are accountable for the accuracy of their determinations and the judges are not.
The fact that a talking point is "tired" says nothing at all about its validity. I know who Jack Goldsmith is, and for the time being I respectfully decline to read his book, simply because of other priorities. I do understand, however, that among other things he says this entire struggle against the jihadists has been grotesquely overlawyered, and if indeed he says that I wholeheartedly agree.
I have no idea how Mr. Goldsmith determined the respective degrees of recluctance on the part of Honest Abe and Mr. Bush, nor do I consider that reluctance germane to anything. I do know that at least one of Mr. Bush's most "controversial" decisions--the NSA surveillance program--was regularly and fully briefed to various members of both parties in congress, not one of whom uttered a peep of protest until the program had been unlawfully leaked to the press.
As to the difference between fighting a civil war and one against a "small band" of terrorists, I don't believe the size of the band has anything at all to do with the risk they pose to the citizens of this country. If that small band succeeds in deploying a few nuclear, biological or chemical weapons on American soil, the result would be infinitely more catastrophic than the combined results of Antietam, Gettysburg, Shiloh, Cold Harbor, Fredericksburg and all the rest. And all the dead in those battles were soldiers; all the dead in a successful jihadist attack here would be civilians.
But by all means, let us hope that no one knows what my grandmother might have to say about Mediterranean cooking. I mean, we've got to keep our eyes on the really important balls, right?
neutral, you've got that quintessentially Bushian combination of extreme confidence and a tenuous grasp of the facts. It's lovely.
Not only are the NSA professionals the most qualified people on earth to make such determinations (and the judges have no qualifications at all), the professionals are accountable for the accuracy of their determinations and the judges are not.
This is such nonsense. No one is saying that judges should decide who to surveil. The NSA professionals obviously make all such decisions. The judges are only there to make sure the NSA guys are actually spying on who they say they are spying on (and only when they're spying on people here in the U.S.). Moreover, the notion that the NSA professionals are "accountable" for the decisions is laughable. This stuff is so top secret that no one can even establish standing to sue (because no one knows who has been spied upon). How exactly are the NSA professional made accountable for their surveillance decisions when there is no judicial oversight?
You have to have some sort of independent oversight or there is no accountability at all.
I do know that at least one of Mr. Bush's most "controversial" decisions--the NSA surveillance program--was regularly and fully briefed to various members of both parties in congress, not one of whom uttered a peep of protest until the program had been unlawfully leaked to the press.
This is just factually wrong, on several levels. First, they only briefed the ranking members of the committee, despite the fact that, by law, they had to inform the whole committee (when it was pointed out in 2006 that they had violated the reporting laws, they relented and briefed the whole committees). Second, the presentations Cheney gave were incomplete and never indicated that surveillance was being conducted outside of FISA (they never even mentioned FISA). Bob Graham has said that there was no suggestion that this involved warrantless surveillance of people within the U.S. and he came away from the briefing thinking that they were utilizing some sort of new technology.
Third, those who were briefed were not allowed to discuss the program with thier staff or counsel, so they had no way of determining its legality. Nevertheless, Jay Rockefeller was so concerned that he drafted a letter to Cheney expressing his concerns about the legality of the program and kept a handwritten copy of the letter locked in his personal safe.
So someone did "utter a peep."
There is no reason whatsoever to think that Hillary Clinton will adopt the Cheney/Addington/Yoo approach to executive power if she becomes president.
Respectfully, I disagree. The point you made earlier about the Bush Administration (in response to Goldstein's book) applies to subsequent administrations as well. If Hilary had been President on 9-11, I doubt she would have adopted such extreme views and practices as the present Administration. But now that those views and practices are in place, it will be dirt cheap to continue them and much harder to roll them back.
EL,
I think you may be right regarding statutory powers, but I really don't think there is anyone who could possibly serve in a Democratic Justice Department who would endorset the Cheney/Addington/Yoo constitutional theory. That's a fringe theory that very very few conservative lawyers are even willing to associate themselves with.
Clinton theoretically supported strong executive power, but as noted by AL, rarely asserted it. I've worked with marginal areas of the law for the past 5 years, and I've come across multiple instances of commentators noting that Clinton declined using the executive power to advance his policy agenda even when there was a reasonable argument to be made that the law permitted it.
Without exception, he went back to the Congress to change the law.
Oh my God!
PARIS -- Hillary Rodham Clinton, the leading Democratic candidate for U.S. President, may be called as a material witness in the State of California, in what may be the largest election fraud in U.S. history. All news of this case has been effectively censored in the U.S. mainstream media. Read the full story in The Wall Street Journal, "For Clinton, 2000 Fund-Raising Controversy Lingers".
Hillary may have violated the law by not reporting large contributions to her successful 2000 campaign for U.S. Senator. Mr. Peter F. Paul claims that his contributions were omitted from the public reports filed with the Federal Election Commission, and Hillary denies all knowledge of these contributions. Read the latest ruling in Case B191066, Paul v. Clinton.
Hillary even denies knowing Mr. Paul, a three time convicted felon, who made the contributions to her 2000 Senate campaign. A video, "Hillary Exposed", produced by the Equal Justice Foundation of America has been viewed more than 725,000 times. A case such as this normally ends any aspirations that a politician may have for public office, and certainly raises questions about the illicit fund-raising practices in the Clinton camp.
"Oh my God!
PARIS -- Hillary Rodham Clinton, the leading Democratic candidate for U.S. President, may be called as a material witness in the State of California, in what may be the largest election fraud in U.S. history. All news of this case has been effectively censored in the U.S. mainstream media. Read the full story in The Wall Street Journal, "For Clinton, 2000 Fund-Raising Controversy Lingers".
Are you seriously trying to construct a definition of "mainstream media" that does not include the Wall Street Journal?
Also, calling this the "largest election fraud in U.S. history" is a little bit of hyperbole, don't you think? 1876 was worse by any standard, and a half dozen others (including 2000) rank above it as well. And I'm only thinking of Presidential elections here.
She doesn't have to be Cheney in a pantsuit. What Cheney has built (and the destruction he has visited on our Constitution) is now the status quo, and I don't trust any of the candidates who are not specifically campaigning against it to do anything about it. If they're in favor of restoring the Constitution, why aren't they saying anything about it? I would think that the position of restoring the Constitution would be a huge vote getter in the Dem primaries. Do you really think that these people who are so ambitious that they are running for President are going to turn down power if it's handed to them? And once again, if so, why the deafening silence about it?
In this article Clinton promises to "review" all of the executive powers Bush has asserted. http://www.guardian.co.uk/uselections08/hillaryclinton/story/0,,2197048,00.html
Of course, she doesn't promise to give up any specific power. But no doubt if she finds that Bush has improperly claimed a power, she will give it up. Or put another way, if she doesn't give up a power, she will find that it was properly claimed.
So there is no reason to be concerned that she will claim any power that, according to her, is not properly claimed.
Unless of course it proves to be "instrumental."
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