scispace - formally typeset
Search or ask a question

Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis

01 Jan 2012-Vol. 5, Iss: 2, pp 507
TL;DR: The limits to executive branch capacity to provide reliable legal and constitutional analysis in times of emergency, including covert military operations, are discussed in this article, where the authors highlight the special risks government faces when the circle of presidential advisers narrows because of highly classified operations and there is less opportunity for senior officials, including attorneys, to pass judgment on pending initiatives.
Abstract: Presidential advisers, both Democratic and Republican, long ago discovered ways to magnify presidential power at the cost of legal principles and the system of checks and balances. This essay briefly considers the limits to executive branch capacity to provide reliable legal and constitutional analysis in times of emergency, including covert military operations. It highlights the special risks government faces when the circle of presidential advisers narrows because of highly classified operations and there is less opportunity for senior officials, including attorneys, to pass judgment on pending initiatives.I. THE HISTORICAL PATTERNFollowing the terrorist attacks of September 11, 2001, the Bush administration received legal advice from attorneys within the Justice Department and other agencies purporting to afford support for warrantless surveillance by the National Security Agency (NSA), the detention of enemy combatants, the creation of military tribunals, the use of coercive methods of interrogation, and the rendition of suspects to other countries for interrogation and torture. All of these initiatives relied on broad claims of unilateral presidential power. Legal memoranda - many of them secret - were later subjected to severe criticism after they were made public.1In many respects, the Bush administration's claims of power followed a pattern set by other administrations that decided to elevate presidential power over legal and democratic constraints: the Tonkin Gulf Resolution of August 1964 (based on a reported second attack that we now know did not occur2); the Watergate break-in and subsequent cover-up; the abuses within the intelligence community exposed by the Church Committee investigations in the 1970s; assistance to the Contra rebels in Nicaragua in the 1980s, leading to the Iran-Contra Affair; and the unauthorized war against Serbia in 1999. The problem of illegal and unconstitutional activity within the executive branch has become chronic, raising questions whether remedies are available to minimize this chronic threat.Our Constitution was founded on the hope that government can be structured to limit the ambitions of public officials who are tempted to abuse their power. What we find, instead, is a willingness to abandon the system of checks and balances to facilitate prompt action, often at the cost of individual liberties and constitutional violations. There are many ways to summarize this trend. I call it "presidentialism," the assertion that what we need in times of crisis (real or contrived) is a President free to act as necessary, even if in violation of statutes, treaties, and the Constitution. Dismissed from our political system is the understanding that at the heart of constitutionalism is a willingness and desire to form public policy through consensus and accommodation. I call institutional practices that support consensus and accommodation "pluralist." Part of the impetus toward concentrating power in the executive branch is the belief, which I consider false, that the President is better able and more likely to operate in the "national interest" under presidentialist, rather than pluralist arrangements.3The risks of moving in this direction are heightened with regard to foreign and military affairs. In this realm, policies within the executive branch are developed in a climate of isolation and ideological rigidity, predictably undermining the soundness of presidential decisions. Government attorneys are supposed to operate as a check on abuses of government power. Too often, in matters of national security, they are likely to be abettors. Problems in the past will continue into the future unless we rededicate ourselves to the pluralistic government of checks and balances that James Madison and his colleagues designed. Unfortunately, the campaign to "imperialize" the presidency reflects the determined work of many players, not just in the Oval Office or in Congress but also in courtrooms, lawyers' offices, and scholarly law reviews. …
Citations
More filters
01 Jan 2014
TL;DR: In this paper, an institutional reflection essay was developed with the purpose of discussing different aspects of the American political institutions, including their impacts and influences, among the development of public policy in the United States.
Abstract: This Institutional Reflection Essay was developed with the purpose of discussing different aspects of the American political institutions, including their impacts and influences, among the development of public policy in the United States. Therefore, this paper incorporates point of view and arguments of the United States Executive branch and national security, based on peer review analysis in the field of public policy and criminal justice. The essay will cover the aspects of action national security issues and how policies can be re-directed towards the increment of our Nation's security. This paper's final achievement will be to demonstrate the importance of creating policy and how each American political institution has a crucial function among the process of developing public policy.

1 citations

Journal ArticleDOI
TL;DR: In this paper, a number of specific ideas designed to limit presidential power have been proposed, based on an analysis of specific actions taken by past presidents, other executive branch actors, legislators, and judges.
Abstract: As a number of scholars have argued, constitutional and statutory limits have failed to constrain presidential national security power after 9/11 (Fisher 2012b; Pious 2011; Glennon 2015; Edelson 2016). Both the George W. Bush and Obama administrations have found ways around legal limitations on presidential power, while a generally acquiescent Congress has often failed to act and Supreme Court decisions aimed at setting limits have failed to have an effect.If this diagnosis is right – that presidential power has broken free of the rule of law and must be reined in – then what is the prescription? How is this problem to be resolved, and how can a balance be struck between the need for sufficient presidential power to defend national security and the need for meaningful legal restraints on power? This paper will consider specific proposals aimed at achieving these goals. I will consider the role various actors can play: (a) members of Congress, (b) the press, (c) the public, (d) scholars, (e) executive branch lawyers and (f) the courts. My methodological approach is qualitative, based on an analysis of specific actions taken by past presidents, other executive branch actors, legislators, and judges. I use primary sources, including executive orders, Department of Justice memoranda, and court decisions. I also draw on relevant scholarship in the area, including the sources mentioned above. For those interested in finding ways to limit presidential power, recent history provides hopeful examples, including (1) actions members of Congress took in August 2013 to prevent President Obama from acting unilaterally against the Assad regime; (2) actions by some executive branch lawyers in both the George W. Bush (Jack Goldsmith on warrantless surveillance) and Obama administrations (Caroline Krass on military action in Libya after the War Powers Resolution window closed) and (3) legislative changes to bulk metadata collection following the Snowden revelations regarding surveillance. Recent history also provides cautionary tales, or examples to be avoided — for example, Congress’s failure to act regarding ISIS, Harold Koh’s definition of hostilities under the War Powers Resolution, and John Yoo’s memos advancing the idea of an unconstrained unitary executive.With a new president taking office next year, this is a useful moment to consider what actions can be taken to break the cycle of unrestrained presidential power. This paper proposes a number of specific ideas designed to achieve this goal.