-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: July 16, 2007 8:12:58 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: None Dare Call It Treason, but "High Crimes and
Misdemeanors" Will Suffice
Unchecked and Unbalanced:
Presidential Power in a Time of Terror
(Hardcover)
Frederick A. O. Schwarz, Aziz Z. Huq
Americans Overthrew King George, Only to See
His Effete Namesake Assume Monarchal Powers Some 225 Years Later.
BuzzFlash.com's Review
http://www.buzzflash.com/store/items/685
A timely July 6, 2007 book review in the New York Times praises
"Unchecked and Unbalanced: Presidential Power in a Time of Terror":
"In their chilling and timely book Frederick A. O. Schwarz Jr.,
senior counsel at the Brennan Center for Justice at the New York
University School of Law, and Aziz Z. Huq, who directs the Liberty
and National Security Project at the Brennan Center, argue that the
Bush administration’s “monarchist claims of executive power” are
“unprecedented on this side of the North Atlantic,” and that its
“executive unilateralism not only undermines the delicate balance
of our Constitution, but also lessens our human liberties and hurts
vital counterterrorism campaigns” by undermining America’s moral
authority and standing in the world."
The NYT book review also notes:
"“Making the executive supreme makes the nation no safer — either
from its enemies or its own worse impulses,” the authors conclude.
“Indeed, the abiding genius of the Founding Generation was its
rejection of the idea that unchecked unilateral power is ever
properly vested in any one branch of government. Our government was
framed ‘to control itself,’ as James Madison wrote in the
Federalist Papers. ‘Ambition must be made to counteract ambition.’
Dividing powers between three branches, the Founders harnessed
human passions in the cause of limited government. Madison, again
writing in the Federalist Papers, provided the enduring explanation
for this division of government: ‘The accumulation of all power,
legislative, executive, and judiciary, in the same hands, whether
of one, a few, or many, may justly be pronounced the very
definition of tyranny.’ ”
This book could not be more urgently necessary to fully
understanding the horrifying implications of an American
administration that has acted outside the law and our Bill of Rights.
------------------
Where's Congress In This Power Play?
By Frederick A.O. Schwarz Jr. and Aziz Huq
Washington Post, April 1, 2007; B01
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/30/
AR2007033002075_pf.html
THIRTY YEARS AGO, a Senate committee headed by the late Sen. Frank
Church exposed widespread abuses by law enforcement and
intelligence agencies dating to the Franklin D. Roosevelt
administration. In the name of "national security," the FBI, CIA
and National Security Agency spied on politicians, protest groups
and civil rights activists; illegally opened mail; and sponsored
scores of covert operations abroad, many of which imperiled
democracy in foreign countries.
The sheer magnitude of the abuses unearthed by the committee
shocked the nation, led to broad reforms and embarrassed Congress,
whose feckless oversight over decades was plain for all to see. As
a result, Congress required presidents to report covert operations
to permanent new intelligence committees and created the Foreign
Intelligence Surveillance Act, which squarely repudiated the idea
of inherent executive power to spy on Americans without obtaining
warrants. New guidelines were issued for FBI investigations.
For those of us involved in that effort to bring accountability and
sunshine back to government, it is discouraging to read daily
accounts of a new era of intelligence power abuses, growing out of
a "war" on terrorism that is invoked to justify almost any secret
measure.
In the past five years, we have learned that the executive branch
has circumvented federal bans on torture, abandoned the Geneva
Conventions, monitored Americans' phone conversations without the
required warrants and "outsourced" torture through "extraordinary
rendition" to several foreign governments. Recently we learned that
the FBI recklessly abused its power to secure documents through
emergency national security letters.
Once again, congressional oversight of the growing national
security, intelligence and law enforcement establishments has
fallen short. But there are now obstacles to reestablishing
effective oversight that did not exist three decades ago.
For one thing, the country and Congress are far more polarized.
There was a high degree of bipartisan unity on the Church
Committee, and Republican President Gerald R. Ford generally
cooperated in the effort to expose abuses and create remedies. The
committee, formally known as the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities,
was created in Watergate's wake and had a Democratic majority. But
it focused on abuses by administrations of both parties. Indeed,
its inquiries revealed that three Democratic icons, Presidents
Roosevelt, John F. Kennedy and Lyndon B. Johnson, all knew about or
approved questionable activities. Howard Baker Jr., a senior Senate
Republican who served on the panel, disagreed with some proposals
but said it had carried out its task "responsibly and thoroughly."
But Congress now faces an even bigger problem than heightened
partisanship. Past presidents have never claimed that the
Constitution gave them power to set aside statutes permanently.
(Richard M. Nixon was no longer in office when he declared: "When
the president does it, it means that it is not illegal.") The Bush
administration, however, appears committed to eliminating judicial
and congressional oversight of executive action at all costs. This
pernicious idea, at odds with the Founders' vision of checks and
balances, lies at the heart of many of today's abuses.
In some ways, the "Magna Carta" of this combative ideology was the
minority report issued by eight of the Republicans on the Iran-
contra committee that investigated the Reagan administration's
handling of covert arms sales to Iran and the secret -- and illegal
-- effort to finance the contra rebels fighting in Nicaragua.
Among the report's signers was then-Rep. Dick Cheney, who led the
group. They rejected the idea that separation of powers would
"preclude the exercise of arbitrary power" and argued that the
president needed to act expeditiously and secretly to achieve
American aims in a dangerous world. Their solution to executive
abuse was to water down congressional and judicial oversight.
The minority report referred approvingly to "monarchical notions of
prerogative that will permit [presidents] to exceed the law" if
Congress tried to exercise oversight on national security matters.
Cheney later insisted in an interview that "you have to preserve
the prerogative of the president in extraordinary circumstances,"
by not notifying Congress of intelligence operations.
Cheney's views have not shifted since then. In December 2005, he
referred reporters to the minority report for his view of "the
president's prerogatives."
And for the first time in U.S. history, executive branch lawyers
have argued that the president has power to "suspend" laws
permanently in the name of national security. In signing statements
for new laws, the chief executive has repeatedly asserted this
broad power. In internal legal opinions on torture, Justice
Department lawyers have proposed that the president can set aside
laws that conflict with his ideas of national security. Under this
logic, laws against torture, warrantless surveillance and transfers
of detainees to governments that torture all buckle.
We do not know precisely which laws were turned aside, because the
administration still refuses to reveal Justice Department opinions
that define what laws the executive will and will not follow. Such
secrecy, which has nothing to do with the legitimate protection of
sources and methods of intelligence agencies, cannot be justified.
This crisis of constitutional faith did not begin with the current
Republican administration. After a burst of reforms in the 1970s,
Congress quickly fell back into Cold War apathy, finding it easier
to let standards lapse than to hold the executive branch to
account. The Iran-contra scandal was the first warning that the
Church Committee's lessons had been sidelined by the executive
branch. Attorney generals issued looser guidelines on FBI
investigations. The White House became a keen user of unilateral
executive orders that bypassed Congress.
President Bill Clinton's stint in the White House proved no
exception. He broadly interpreted his war powers and aggressively
used executive orders to bypass Congress -- for example, ignoring a
House vote opposing intervention in Kosovo. Clinton issued 107
presidential directives on policy, according to Harvard Law School
Dean Elena Kagan. Reagan issued nine and George H.W. Bush just four.
Today, the argument for unchecked presidential power is starkly
different from earlier invocations. While previous administrations
have violated civil liberties -- as in the post-World War I Palmer
raids and the incarceration of Japanese Americans during World War
II -- such actions were public and short term. When Confederate
troops neared Washington in the Civil War and mobs in Baltimore
attacked Union troops, President Abraham Lincoln suspended habeas
corpus -- the principal legal protection against unlawful
detention. As Baltimore's mayor threatened to blow up railroad
bridges used by Union troops, Lincoln acted without waiting for
Congress to return from recess. Yet he subsequently sought and
received congressional approval.
Unlike Lincoln and other past chief executives, President Bush
asserts that he has the power to set aside fundamental laws
permanently -- including those that ban torture and domestic
spying. The White House today argues that there will never be a day
of reckoning in Congress or the courts. To the contrary, it does
all it can to shield its use of unilateral detention, torture and
spying powers from the review of any other branch of government.
Even after five years, the lawfulness of incarcerating hundreds of
detainees at Guantanamo Bay, Cuba, has not been reviewed by another
branch.
Never before in U.S. history, we believe, has a president so
readily exploited a crisis to amass unchecked and unreviewed power
unto himself, completely at odds with the Constitution. This
departure from historical practice should deeply concern those in
both parties who care for the Constitution.
Even in military matters, Congress has considerable authority. For
instance, the Constitution specifies that Congress can "make Rules
for Government and Regulation of the land and naval Forces."
Military intelligence, military surveillance and military detention
are all matters on which Congress can dictate the terms of how the
commander-in-chief's power is exercised.
Debates at the 1787 Constitutional Convention in Philadelphia, and
in the state ratifying conventions that ensued, conclusively
undercut the current administration's claim to unaccountable power.
Alexander Hamilton, the founding era's foremost advocate of
executive vigor, disdained efforts to equate the new president's
authority with the broad powers of the English monarchs. And even
assuming that Hamilton was wrong in asserting that presidents have
less power than English kings, the British monarchy had in fact
been stripped of power to "suspend" parliamentary laws after the
Glorious Revolution of 1688, about 100 years before the
Constitutional Convention. The Constitution simply contains no
unfettered executive authority to annul laws on a president's
security-related say-so.
There is no reason to abandon the founding generation's skepticism
of unchecked executive power. The Constitution rests on a profound
understanding of human nature. Hamilton, James Madison and the
other framers and ratifiers knew that no single individual, whether
selected by birth or popular vote, could be blindly trusted to
wield power wisely. They knew that both the executive and Congress
would make mistakes.
The Supreme Court has repeatedly backed a strong oversight role for
Congress. "The scope of [Congress's] power of inquiry is as
penetrating and far-reaching as the potential power to enact and
appropriate under the Constitution," it wrote in 1975. Congress has
repeatedly met its constitutional responsibility as a coequal
branch, even in times of war, and regardless of partisan interests.
Oversight is not a Republican or Democratic issue. In World War II,
then-Sen. Harry S. Truman coordinated aggressive inquiries into the
Democratic administration's mismanagement of war procurement.
During the Civil War, Republicans in Congress drove Lincoln's first
secretary of war from office by their investigations.
Today's questions about presidential power are certainly not ones
that have Republican or Democratic answers. The institutional
imbalance that is evident today should trouble legislators of both
parties.
We believe that most Americans still would agree with the Church
Committee when it stated: "The United States must not adopt the
tactics of the enemy," for "each time we do so -- each time the
means we use are wrong -- our inner strength, the strength that
makes us free, is lessened."
--------------------
Book review:
"Unchecked and Unbalanced: Presidential Power in a Time of Terror"
By MICHIKO KAKUTANI
New York Times, July 15, 2007
http://www.ocregister.com/ocregister/opinion/bookreviews/
article_1766496.php
Days after 9/11, Bush administration lawyers began laying out a
vision of sweeping executive power, designed to give the president
authority, in the words of John C. Yoo, then deputy assistant
attorney general, "to take whatever actions he deems appropriate to
pre-empt or respond to terrorist threats from new quarters,"
whether or not they can be linked to the specific terrorist
incidents of Sept. 11.
A Sept. 25, 2001, Justice Department memo declared that under the
Constitution decisions regarding the "amount of military force to
be used" in response to the terrorist threat, as well as "the
method, timing and nature of the response," are "for the president
alone to make."
And a January 2002 Justice Department memo argued that "customary
international law has no binding legal effect on either the
president or the military."
In fact, as this important book, "Unchecked and Unbalanced," points
out, the Bush White House has repeatedly sought to expand its
powers, often doing so in secret, while sidelining both Congress
and the judiciary. President Bush secretly authorized the National
Security Agency to eavesdrop without obtaining a court order on
calls and e-mail messages sent from the United States to other
countries. He has issued a steady stream of signing statements,
signaling his intent not to comply with more than 750 provisions of
laws concerning national security and disclosure, most notably one
that questioned Congress' authority to limit coercive interrogation
tactics. And the administration has claimed that the president's
war powers give him the authority to detain people indefinitely and
deny them access to lawyers and the courts -- a policy that it
would later be forced to modify in response to legal challenges.
In their chilling and timely book Frederick A.O. Schwarz Jr.,
senior counsel at the Brennan Center for Justice at the New York
University School of Law, and Aziz Z. Huq, who directs the Liberty
and National Security Project at the Brennan Center, argue that the
Bush administration's "monarchist claims of executive power" are
"unprecedented on this side of the North Atlantic" and that its
"executive unilateralism not only undermines the delicate balance
of our Constitution, but also lessens our human liberties and hurts
vital counterterrorism campaigns" by undermining America's moral
authority and standing in the world.
"Unchecked and Unbalanced" serves as a valuable compendium and
chronicle of the Bush administration's aggressive efforts to expand
the power of the executive branch, providing a detailed account of
the unilateral actions it has taken on matters ranging from torture
policy to domestic surveillance. It is necessary reading for anyone
interested in how those efforts by the Bush White House have tipped
the constitutional system of checks and balances.
Schwarz was chief counsel for the Church committee, which
investigated executive branch overreaching in the mid-1970s. He and
Huq have done a powerful job of situating the actions of the
current White House in perspective with the imperial presidency of
Richard M. Nixon (who once declared that "when the president does
it, that means that it is not illegal"). Equally devastating is
their deconstruction of Bush administration lawyers' efforts to
assert a doctrine of unfettered presidential prerogative. They
remind the reader that the founding fathers had "scant affection
for strong executives" like England's king, and they argue that
many of the Bush White House's claims are rooted in ideas "about
the 'divine' right of kings" that "did not survive <the execution
of the monarchs asserting such claims, leading to> the the English
Civil War and the Glorious Revolution of 1688" and that certainly
did not find their "way into our founding documents, the 1776
Declaration of Independence and the Constitution."
Like many reporters, Huq and Schwarz point out that expanded
executive power was NOT a response to the terrorist attacks of 9/11
but the realization of a vision that conservatives like Dick Cheney
had harbored since the 1970s, when they grew aggrieved over post-
Watergate reforms that put the brakes on presidential power. That
backlash gained ground during the Reagan presidency, and it was
articulated in 1987 in the minority report of the Iran-contra
committee. (The committee included Cheney and counted among its
staff David S. Addington, who years later, as the vice president's
legal counsel and chief of staff, would play a major role in
formulating the administration's post-9/11 legal strategy.)
According to Huq and Schwarz the Iran-contra committee's minority
report asserted that "the Chief Executive [might be] duty-bound to
assert monarchical notions of prerogative that will permit him to
exceed the laws," as it argued that "the President's inherent
powers" had historically allowed him to act "when Congress was
silent, and even, in some cases, where Congress had prohibited an
action."
As Schwarz and Huq see it, the Bush White House's "broader efforts
to seize unfettered control of national security policy and to
eliminate the checks and balances imposed by Congress and the
courts" is exemplified by its post-9/11 decision "to ignore legal
constraints on torture." In February 2002 President Bush signed an
order declaring that "none of the provisions of Geneva apply to our
conflict with al-Qaida in Afghanistan or elsewhere throughout the
world," a decision that would set the nation on a slippery slope
toward torture, leading to the abuses at Abu Ghraib and other U.S.-
run prisons.
In addition, Justice Department lawyers undermined the spirit and
purpose of anti-torture laws by promulgating a deliberately narrow
definition of torture. One 2002 memo defined it as causing the sort
of "intense pain or suffering" ordinarily associated "with serious
physical injury so severe that death, organ failure or permanent
damage resulting in a loss of significant body function will likely
result."
Although significant attention was focused on the Patriot Act
(which itself created an uproar over the threat it posed to
Americans' civil liberties), Huq and Schwarz write, "the official
responses to the Sept. 11, 2001, attacks largely took shape through
under-the-radar executive orders" that not only excluded Congress
from the debate but in many cases also circumvented the
government's own inter-agency policy-making process, cutting out
experts from the State Department and the military.
For instance, the authors observe that a presidential finding
signed days after 9/11 gave the CIA sweeping new powers to disrupt
terrorist activity and permission to kill, capture and detain
members of al-Qaida anywhere in the world. These powers, in the
view of some intelligence officers, included the implicit authority
to create black sites (secret detention facilities outside the
United States) where terrorism suspects could be held, and Bush's
signing of a 2002 presidential order authorizing NSA surveillance
in the homeland without a court-approved warrant, an order that
effectively circumvented the Foreign Intelligence Surveillance Act,
passed by Congress in 1978.
"Making the executive supreme makes the nation no safer – either
from its enemies or its own worse impulses," the authors conclude.
"Indeed, the abiding genius of the founding generation was its
rejection of the idea that unchecked unilateral power is ever
properly vested in any one branch of government. Our government was
framed 'to control itself,' as James Madison wrote in the
Federalist Papers. 'Ambition must be made to counteract ambition.'
Dividing powers between three branches, the founders harnessed
human passions in the cause of limited government. Madison, again
writing in the Federalist Papers, provided the enduring explanation
for this division of government: 'The accumulation of all power,
legislative, executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition of tyranny.' "
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