Mark Schmitt

Two things were mentioned in

Two things were mentioned in consecutive  posts over at Balkinization, but they haven"t really been linked, though once again they show the connection between the Alito nomination and the current abuses of executive power.

First, Marty Lederman notes that on signing the Defense Appropriations Bill, the President added a "never mind" to the McCain amendment banning torture:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

 

This sentence, which basically says that the administration intends to do whatever they want to do if they decide for themselves that its related to the War on Terror, comes in the context of a "signing statement." As an article a couple days ago in the Post, and a more expansive explanation of these issues by Sanford Levinson, indicate, the very idea of the signing statement is something relatively new, cooked up by Alito himself during the Reagan administration, as a way to strengthen the hand of the president over Congress. Most judges (Justice Scalia is an outspoken exception) believe that the intent of Congress in passing a bill, as expressed in committee reports, floor statements by supporters, colloquies, etc., can be an important tool in interpreting the law. Why not let the President spin the law his own way?, Alito asked.

"Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

As Levinson notes, part of the target here is internal to the executive branch: the president is trying to direct how the executive branch’s own lawyers, such as the State Department Legal Advisor’s Office, should interpret the law. These lawyers operate independently from the White House and often refuse to embrace expansive definitions of executive power such as the "unitary executive" theory expressed in the McCain "never mind" statement. Not surprisingly, these legal offices were excluded from the legal analysis of the NSA domestic surveillance program as well as the justifications for torture.

This is way beyond my legal depth (though certainly not Levinson’s), but it seems to me there is a simple reason to reject Alito’s seemingly sensible recommendation, exemplified by the McCain statement. It gives the President a kind of after-the-fact last word on the matter that legislators don’t have. Legislative expressions of intent generally involve some kind of consent. If a group of legislators who support a bill don’t like the interpretation suggested in the committee report, they can put their own statement in the record, or vote against it. The president can even weigh in and threaten to veto the bill if expressions of legislative intent are made that he’s not comfortable with. It’s a multilateral process. But once the bill is out of Congress, the President is acting totally alone in declaring his intent in signing it. Consider, for example, what would have happened if before the amendment had passed, or while the final language was being negotiated with Cheney, the president had said exactly what he said in the signing statement. McCain and the bill’s other supporters might have gone back and tightened the language, or they might have added their own expressions of intent. But by the time the President signs a bill, Congress is done with it. There’s no opportunity for consent.

In a way, this reminds me of the debate over the line-item veto, which the Supreme Court ruled in 1998 was unconstitutional, even if Congress granted the authority by statute, because, as Justice Stevens put it, "there is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes."

Fortunately, according to the Post, courts have not given much credence to signing statements. But their influence on other executive branch lawyers is no minor matter.

This is an incredibly big deal. A president who can sign a bill and then declare that he’ll obey it if and when he feels like it is truly a step too far. And because Alito seems to have played a key role in setting up this situation, the confirmation hearings are the right place for the debate on this practice to play out.

Our Long National Nightmare Continues

Roughly speaking, there have been four great showdowns over abuse of executive power in modern U.S. history. The earliest has to do with domestic surveillance by the CIA, and other ill-conceived schemes, as revealed by the 1975 Church Committee hearings. The second, closely overlapping the first, involved all the excesses of the Nixon administration, including Watergate itself, the "Plumbers," the secret bombing of Cambodia, Kissinger"s wiretapping of staffers, etc. The third, the Iran-Contra scandal in the Reagan Administration, seems quaint compared to the fourth, the Bush administration"s NSA domestic surveillance program, and the broader assertion of executive authority to torture and otherwise ignore international law.

These  episodes have certain themes in common. Yes, one of them is that they were all hatched in the first term of Republican presidencies and revealed only after reelection, but that’s not the answer I’m looking for. (Also, many of the CIA abuses preceded Nixon, which is why I separate them from Watergate.)

First, all of them produced a backlash. The Church Committee revelations, which Garance Franke-Ruta and Ruth Marcus both recently disinterred, are remembered now mostly by CIA veterans as the beginning of a period in which, in their view, our intelligence capabilities were crippled. The War Powers Resolution and  the Budget Act of 1974, both of which Vice President Cheney criticized in a recent interview in which he described his view of executive power, were all residue of the backlash against Nixon. The lesson seems clear: In a constititutional system, those who want executive power to be protected and respected, should be especially wary of presidents who take it too far.

Second, all of them involved creating a zone of extreme secrecy in which decisions, and even the processes leading to those decisions, were kept secret not just from Congress and the Courts, but within the executive branch itself. The defense of the warantless eavesdropping that seems to be emerging on the right is that it was not the FISA court they were trying to evade, since that was no obstacle, but the process within the executive branch of generating a request and getting it to the FISA court. Dana Priest’s recent story in the Post reports that even the legal reasoning behind the NSA program was kept secret from the executive branch lawyers who are supposed to handle these things and are capable of handling classified information. Nixon’s operations similarly operated in secret from the FBI and CIA. In Iran-Contra, Oliver North said the Reagan administration sought to create, "an off the shelf, self financing, independent covert operations capability."

Third, in these zones of extreme secrecy, in which nothing ever has to be justified to anyone outside of the closed circle, all sorts of insanity flourishes. Personal obsessions take hold and are pursued unchecked. Ideas that would be too embarassing to explain to anyone seem to make sense and are carried out. This was true in every example, from the nutball Castro assassination schemes hatched in the CIA to the idea of firebombing the Brookings Institution in the Nixon White House, to the bizarre excesses of Iran-Contra, such as delivering a cake shaped like a key and a Bible signed by Reagan to the Iranian clerics. All of Iran-Contra is really an example of this process, as the White House’s obsession with evading congressional restrictions on aid to the Nicaraguan contras led them into a far more consequential entanglement in Middle Eastern politics that never would have made sense on its own. 

Given what we know about these previous episodes in which the executive branch created zones of extreme secrecy, I think it’s quite likely that we will soon learn that the NSA domestic surveillance program involved much more than just tracking people who received calls from known al Qaeda suspects, something that I certainly wouldn’t object to. I don’t know what it will be -- some have speculated that it involved monitoring journalists -- but whatever it is, it was something that couldn’t be justified even within the administration.

Libeling the Class of '74

Since I"ve been promoting the idea that Democrats should look to the 1974 election, rather than the Republican gains in 1994, as their model for 2006, I should respond to Max Sawicky"s critique of the analogy, yesterday. "Watergate," Sawicky says, "ushered in a generation of Democratic politicians with little in the way of ideological commitment other than honesty.  Not long after Watergate we got the Reagan revolution."

As a general statement, I agree: Honesty, or what I called "bloodless suburban reformism" in the article above, is not enough. There is and always has been a good-government strain of progressive politics that looks at the integrity of the system as somehow an end in itself, without regard to the basic issues of distributional justice that are the reason for politics in the first place. Good-government politics not only doesn’t achieve the goals of justice, it also cannot possibly command a majority, especially not a majority of working people of all races who need much more from government than just internal integrity.

But I think Sawicky is wrong to use the post-Watergate class as an example of this political short-sightedness.

As an example, Sawicky says, "I’d rather have a slightly oily Harrison Williams expanding Social Security than an honest Tim Penny tearing it down." (Williams was an accomplished Senator from New Jersey and chair of the Education and Labor committee, best known for his work on pensions, but who got nabbed in the Abscam scandal of the late 1970s. Penny was a very conservative Democratic representative from Minnesota, last seen as a close advisor and would-be successor to independent governor Jesse Ventura.)

But that’s not an example that has anything to do with the post-Watergate class of Democrats. Penny was elected to Congress in 1982, not 1974. And I don’t think he’s considered himself a Democrat, in name only or anything else, in some time. He ran for governor as a candidate of Ventura’s Independence Party (getting 16% of the vote) and has been affiliated with the Cato Institute. Penny is sui generis, but if you have to fit him into any type, it’s a group that emerged after the Reagan revolution, trying in different ways to accomodate the conservative trend in the country and their own districts, as well as their own personal conservatism, and ultimately becoming simply conservatives.

The post-Watergate class was different. Yes, they were reformers, but reformers with a purpose. Their reforms of the House of Representatives broke the committee system by which hard-right Southern conservatives (still nominally Democrats) controlled the institution. As individuals, they were diligent, committed liberals, even though many of them, like former Rep. Tom Downey, represented Republican districts. In my article, I described Rep. George Miller of California, responsible for stopping the Katrina wage-cut, as the quintessential member of the post-Watergate class, I still think that’s true. Senator Harkin is another. (Another of the three class of ’74 members who remain in the House, incidentally, is John Murtha, although he is atypical of the group, older and more conservative.) These politicians did not follow a party line, but they were basically liberal and they understood what it took to move a complex federal government to meet people’s needs.

Nor does the post-Watergate class bear responsibility for the Reagan revolution. That was a product of the disappointment of the Carter presidency (some of which was caused by the old congressional barons, not the new class), economic distress, and demographic changes.

If we have a set of Democratic candidates in 2006 as dynamic, engaged, and appealing as the class of 1974 Dems -- and I think that we will -- not only will they win back the House, but they will be poised to make significant progress toward a more just society.