Let’s go back to school for a minute. Remember learning that the United States had three separate branches of government and a system of checks and balances to prevent any one branch from becoming too powerful?
Congress could make laws; the president could veto them and propose other laws; Congress could override the president’s veto, control the purse strings and had the sole power to declare war while the president served as commander-in-chief; members of the Supreme Court – nominated by the president and approved by the Senate -- could declare a law unconstitutional.
This fragmentation of power was seen at the time the Constitution was drafted as the best way to guard against tyranny and protect liberty.
It’s worth pondering what is left of this system in the post 9/11 world where President Obama has embraced and further enlarged the radical assertion of executive authority handed to him by the Bush Administration.
Has there been any serious attempt by Congress to check rapidly expanding presidential power? No. However bent the Republicans might be on denying President Obama any domestic accomplishments, Congress has largely closed ranks behind a “let the executive branch do it” national security agenda.
It is true that Congress reacted negatively to The New York Times’ revelations about Terror Tuesday “kill lists” targeting people for death outside war zones and about the “Olympic Games” Stuxnet computer virus that the US and Israel unleashed to sabotage the Iranian enrichment program - precisely the kind of cyber attack which the Pentagon said it would regard as an act of war if aimed against the United States.
But were disgruntled lawmakers concerned by executive branch aggression in parts of the world where no war had been declared by the people’s representatives as stipulated by the Constitution? There was no sign of it.
Instead, there was a bipartisan Congressional chorus of voices to investigate the “cascade of leaks” feeding The New York Times’ stories. This rare unanimity ended when Senator John McCain declared that President Obama must have known about the leaks since they served his political ends – a notion Obama called “offensive” and “wrong.” The White House distrusted demands by Senators McCain and Lindsey Graham for an outside “special counsel” to be appointed to investigate the leaks. Instead, Attorney General Holder has appointed two US attorneys – Ronald Machen (DC) and Rod Rosenstein (District of Maryland) -- to do the job.
Both parties are now cooperating on legislation to further criminalize the leak of classified national security information. The lack of such a law has forced the Obama Administration to rely on the 1917 Espionage Act in the six prosecutions it has brought to date against alleged leakers of classified information – twice the number of cases brought by all previous administrations.
James Clapper, the Director of National Intelligence, is meanwhile planning to force government employees with top-secret security clearance in the nation’s 16 intelligence agencies to take an “enhanced lie detector test” which includes questions such as whether the employee has passed information to journalists.
It seems safe to say that in national security matters, Congress – like the executive branch - is more eager to “check” any move toward transparency and accountability than it is to concern itself about any presidential abuse of power. And it seems equally eager to divest itself of its war-declaring power, seeing see eye to eye with the executive branch that just about anything the president sees fit to do on the global battlefield can be justified by its 2001 Authorization of the Use of Military Force (AUMF).
But can it? The AUMF, a joint Congressional resolution signed into law by President Bush on September 18, 2001, authorizes the president to use all “necessary and appropriate force” against those who “planned, authorized, committed or aided the 9/11 attacks” or who harbored such persons.
How many of those targeted for death by drone “planned, authorized, committed or aided the 9/11 attacks”? Did the American teenagers on the US kill list? The unnamed and unknown “militants” who happened to be in the wrong place at the wrong time? The Pakistanis and Yeminis killed as a favor for government officials in Pakistan and Yemen?
It is not just Congress which seems content to let the commander-in-chief turn the world into a battlefield in an endless war, riding roughshod over the clear language of the Constitution. Few judicial hackles appear to have been raised when Attorney General Holder gave a novel interpretation to the Fifth Amendment by declaring that “’due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
The courts have refused to consider whether the executive branch acted constitutionally by authorizing torture in violation of US law and treaty obligations or by placing an American citizen who had never been charged with a crime on a death list.
True, the Supreme Court did take a stand to limit executive power when it upheld habeas corpus for Guantanamo detainees in its 2008 Boumedienne decision. But the hope for a measure of justice this appeared to offer detainees has largely been dashed, as the US Court of Appeals for the District of Columbia Circuit has thrown out all habeas petitions that were successful at the trial court level.
And on June 11, the US Supreme Court itself seemed to turn away from Boumedienne, by refusing to take the appeals of seven of the detainees whose petitions were rejected by the DC Circuit.
At least one judge has recently seen fit to put a brake on Congressional efforts to heap yet more power on the executive branch. Judge Katherine Forrest thought it was going too far for Congress through its National Defense Authorization Act of 2012 to give the president the authority to confine all manner of terrorist “suspects” – including American citizens picked up within the United States – in indefinite military detention. Can her preliminary injunction barring the enforcement of part of NDAA Section 1021 survive a second government appeal? The record of the courts on national security matters makes that unlikely.
So have we seen the end of meaningful checks and balances? At least one Harvard law professor thinks that all is well with the Constitution and that checks and balances are merely evolving in new and interesting directions. Jack Goldsmith was in 2003 appointed head of the Bush Administration’s Office of Legal Counsel where, we later found out, he questioned warrantless surveillance and his colleague John Yoo’s “torture” memos. He has recently has written a new book, Power and Constraint: the Accountable Presidency after 9/11.
In it he makes the claim that the reason that President Obama’s national security posture so strongly resembles that of his predecessor is because this is the way the other branches of government want the executive branch to act. They have accordingly “vetted, altered and blessed” his war-time powers.
The three branches might not be busy checking each other, but there are still plenty of checks within each branch to keep them honest – that’s what the various Inspector Generals are for. The whole system is furthermore constrained by Freedom of Information Act requests and held accountable through aggressive litigation by the ACLU and other public interest groups. If only!
In light of some breaking news, of particular interest is Professor Goldsmith’s point about the role of the Congressional Intelligence Committee in vetting and blessing executive actions. According to Steven Aftergood, members of the Senate Intelligence Committee who are considering an extension until 2017 of the FISA Amendments Act of 2008 cannot agree on what the law currently permits the executive branch to do.
Does its Section 702, as Senators Ron Wyden and Mark Udall assert, contain “a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens”? The two Intelligence Committee members have complained that they have been unable to obtain from the government “even a rough estimate” of how many Americans have had their emails and phone calls seized and analyzed under the Act.
While Senator Dianne Feinstein claims to have had the assurance of the Department of Justice and Intelligence Community that Section 702 is not being used to spy on Americans, redacted reports on the use made by the FISA Amendments Act by the Director of National Intelligence are hazy on the matter. They found that “certain types of compliance incidents continue to occur, indicating the need for continued focus on measures to address underlying causes, including the potential need for additional measures.”
Loophole or no loophole, the Senate Intelligence Committee was not about to make waves for the executive branch. By a vote of 13-2, it refused to sanction an amendment proposed by Senators Wyden and Udall that would bar searches of the communications of Americans at home gathered during the FISA surveillance of foreign persons, unless the government had a warrant permitting the surveillance of a particular person.
So there we have it. The committee which is supposed to be an interface between Congress and the executive branch on national security matters can’t say for sure what powers Congress has handed over to the executive branch and what use is being made of those powers.
Even worse, it is determined not to try to fix the situation.