Quiet Revolutions

Today the rule of law, the checks and balances and the rights reserved in the Bill of Rights were damaged as the FISA act was once again altered and retroactive immunity was authorized for law breaking telecoms. A lot has been written about this. I will not add to that.

Instead, I thought I would point out a pair of quiet revolutions that took place over the last couple of years that got very little coverage. I do so for two reasons. First it is worth noting that not all of the battles for civil liberties in the last couple of years have been lost, and second, it is important to realize that major changes both for good and ill can happen with virtually no one noticing.

The day after the Military Commissions Act was passed and habeas corpus damaged, a second important protection was virtually wiped away—Posse Comitatus. If the weakening of habeas corpus dredges up images of King John, Runnymede, and the Magna Carta, Posse Comitatus should put us in mind of Julius Caesar and the crossing of the Rubicon. The Posse Comitatus Act of 1878 basically forbids the use of the US military or the National Guard under federal control within the United States. It keeps the government from using the miltary on its own citizens. It is essentially the modern version of the Roman law that forbade the legions from crossing the Rubicon into Italy proper.

The Insurrection Act of 1807, on the other hand, authorizes the use of the military and the federalized militia to deal with lawlessness, insurrection and rebellion within the country. The tension between the two acts defines the ways in which the President may legitimately use the military domestically.

The expansion of the Insurrection act came on the "John Warner National Defense Authorization Act for Fiscal Year 2007". Section 1076 of that law rewrote Section 333 of title 10 of the U.S. Code, the Insurrection Act. I wrote a blog posting dealing with the changes a year ago, and also produced a page showing the changes in detail. To summarize quickly, the circumstances under which the President could use the military within the US was expanded from insurrection and rebellion to include "natural disasters, public health emergencies and terrorism", and most alarmingly of all "other circumstances" and left the determination of whether these circumstance pertained to the President.

In short, under the new law, if the President determined that a situation of domestic violence, conspiracy or "unlawful combination" has hindered or obstructed the execution of the laws, and that this is one of those "other circumstances cited in the law, he may federalize the National Guard and use it and the armed forces. This basically made the power to declare martial law and arbitrary power of the President.

The good news is that the "National Defense Authorization Act for Fiscal Year 2008" (HR 4986) which was passed and signed by the President in late January completely undid these changes, and the Insurrection Act and Posse Comitatus have returned to their original balance. The bad news is that it had to be done on the QT. Nearly a year before HR 4986 was passed, Senator Leahy, with the support of Kit Bond, Senator Hagel and 10 Democratic Senators introduces S. 513, a bill that would have done the same thing. It died in committee. Only by burying it in the defense authorization act could they sneak it through.

Civil Libertarians would have celebrated this victory except that it went unheralded, and in fact if you look for news stories about the change which was signed at the end of January, you will find that many are dated at the end of April.

Those of you who paid attention to the Senate debate over the last couple of days on the FISA and telecom immunity legislation will recognize the names of the senators who were willing to stand up for Posse, as sponsors or cosponsors of S 513:

• Sen. Patrick Leahy [D-VT]
• Sen. Christopher Bond [R-MO]
• Sen. Sherrod Brown [D-OH]
• Sen. Robert Byrd [D-WV]
• Sen. Maria Cantwell [D-WA]
• Sen. Thomas Carper [D-DE]
• Sen. Robert Casey [D-PA]
• Sen. Russell Feingold [D-WI]
• Sen. Charles Hagel [R-NE]
• Sen. Mary Landrieu [D-LA]
• Sen. Blanche Lincoln [D-AR]
• Sen. Ken Salazar [D-CO]
• Sen. Ron Wyden [D-OR]

I'm afraid I cannot say what nameless aide put the language into HR 4986. Such is the reality of modern stealth legislation.

We must continue to fight the good fight, just as the three or four dozen senators who voted today to support civil liberties did, just as the sponsors of S 513 did, and at times quietly as the author of HR 4986 § 1068.

As ever, don't believe me.
Research for yourself.
Be a free voice.
Cry for Freedom

A Government of Men, Not Laws?

One of my concerns regarding the state of the Republic is with what seems like a trend towards a government of men not laws, in a reversal of one of our most important principles. Here's an example from Spiegel Online's interview with Tyler Drumheller, former chief of the CIA's Europe division (emphasis mine):

SPIEGEL: So there was no clear guidance of what is allowed in the so called "war on terrorism"?

Drumheller: Every responsible chief in the CIA knows that the more covert the action, the greater the need for a clear policy and a defined target. I once had to brief Condoleezza Rice on a rendition operation, and her chief concern was not whether it was the right thing to do, but what the president would think about it. I would have expected a big meeting, a debate about whether to proceed with the plan, a couple of hours of consideration of the pros and cons. We should have been talking about the value of the target, whether the threat he presented warranted such a potentially controversial intervention. This is no way to run a covert policy. If the White House wants to take extraordinary measures to win, it can't just let things go through without any discussion about their value and morality.

This jumped out at me in part because of something I'd heard from the Attorney General a couple of days earlier while watching video of the January 18 Senate Judiciary Committee hearing, “Oversight of the U.S. Department of Justice”:

LEAHY: But before I turn it over to Senator Specter, let me mention that Senator Specter and I joined together in asking the chief judge in the FISA court for copies of the decision of that court that you announced publicly on Wednesday. The court’s apparently willing to provide these decisions to the committee. You have no objection for that, do you?

GONZALES: Senator, I think that’s a decision that I would like to take back to my principal, quite frankly.

[... text elided ...]

LEAHY: I don’t think I fully understand that. Are you saying that you might object to the court giving us decisions that you’ve publicly announced? Are we a little Alice in Wonderland here?

GONZALES: I’m not saying that I have objections to it being released. What I’m saying is it’s not my decision to make.

The first case was pretty blatant. Drumheller is explicitly calling out Rice for being more concerned with the President's opinion than principles or process. The second is a bit more subtle. Senator Leahy is focusing on the apparent contradiction of Gonzales announcing the decision and then objecting to the court sharing it. What bothers me is that the Attorney General cannot make such a simple decision on his own. Please note that the decision to release the decision is the court's and not the AG's. Leahy is only asking the AG's opinion on the court's decision.

Note, too, the language that Gonzales uses. He calls the President "his principal", as if he is still the White House Counsel or the President's personal attorney, rather than the nation's chief law enforcement officer, the head of the Department of Justice and the nation's attorney.

I'm sure that many will think I'm making a mountain out of a mole hill, but these statements aren't isolated, they are part of a larger pattern, one that involves controversial political theory, and questionable practices. They tie to theories of Presidential "inherent authority", the doctrine of the "unitary executive", and the President's recent actions.

Let me outline this greater context in hopes of clarifying the reasons for my concern when I heard the above comments.

Inherent Authority Theory

The theory of the president's "inherent authority" as Commander in Chief has been put forth multiple times, in somewhat different forms by John Yoo of UC Berkley. Most famously and accessibly, he put it forth in the memos that were issued in the weeks after 9-11 which asserted that the President had the authority he needed to conduct military and intelligence operations as he saw fit in the War of Terror, and then in his book The Powers of War and Peace.

The basic thrust of this theory is that rather than being a coequal branch of government with the legislative and judicial branches whose powers are limited to those expressly granted to them, the President as the Chief Executive and Commander-in-Chief has inherent unenumerated "inherent powers". As an example of this, take the following from the Sep 25, 2001 memorandum:

This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution.

So, it would seem that when We the People did ordain and establish the Constitution, we did so in a way that modeled the role of the President as Executive on that of the King of England. The notion that the President wields powers that are assumed by his Executive and military roles is tied fairly closely to another theory that the administration has been promulgating—that of the "Unified Executive".

Unified or Unitary Executive Doctrine

This theory proposes that, in the President's quaint wording, he is the sole "decider" of the Executive branch, that all executive authority and responsibility resides in him, and that the rest of the Executive branch are merely his employees, whom he directs. This has a number of implications. One is that one agency or department in the Executive branch cannot sue another, since there would be only one party to the suit—the President would be suing himself! Another is that the Legislature cannot direct Executive branch departments or agencies, that would usurp the President's responsibility to supervise his direct and indirect reports. Thus, when Congress charges a particular agency to carry out a specific law or to report back to them, they exceed their authority. Alternatively, they cannot under this theory set qualifications on who can fill posts that they create. That would interfere with his right to hire whom he chooses.

If the Inherent Authority theory treats the President as if he was King George III, the Unified Executive comes closer to The Sun King. While it falls short of Louis' claim, "L'etate, c'est moi" ("I am the State"), it basically declares that the President is the Executive Branch, and all dealings between the Legislature and the Executive go through him. Moreover, in order to take care that the laws and Constitution are faithfully executed, it is his duty to interpret the Constitution, overthrowing the principle of Judicial Supremacy established in Marbury v. Madison.

Put together, we end up with a picture of a Commander in Chief and Chief Executive who is the sovereign head of the executive branch, and who exercises inherent powers beyond those explicitly enumerated in the Constitution.

Executive Order 13422—"Policy Officers"

Let us turn now, not to the theory that the President and his administration operate under, but some of the actions they and the Republican dominated Congress have taken, and how those expand his powers, as if the inherent powers of the unitary executive were not enough. One that was being debated in two Congressional committee hearings Tuesday, is Executive Order 13422 which revises 12866 which sets out how regulations established by federal agencies are planned and reviewed. On the whole, much of 12866, both before and after amendment seems like good governance, and an attempt to control and rationalize the many shelf yards of federal regulations.

But one major change is that whereas the original order created the role of "Policy Officer" reporting to the heads of major agencies, the new version mandates them for all agencies, requires that they be someone appointed by the President (without requiring that they be approved by Congress) and reporting to the President. Further, it specifies that that the Policy Officer must approve of each regulatory effort before it is put on the agency's schedule and each regulation before it is published.

The Policy Officer changes have two basic effects, they give the President more direct control of the executive, allowing him to specify how Congress's laws are enacted, which is in keeping with the Unitary Executive model. It also shifts control away from the professionals in the agency's area of expertise to political appointees. To an extent, this shifts us in the direction of Soviet apparatchiks a model which while it was intended to insure that Party goals and priorities were met, resulted in a marked decrease in the effectiveness of the Soviet bureaucracy.

Changes to "The Insurrection Act"

The second action that fits into this pattern of centralized Presidential control is to be found in H.R. 5122, the "John Warner Defense Authorization Act of 2007", which among a great many other things amended the Insurrection Act, which along with Posse Comitatus controls and limits the President's use of the military within the United States. The changes are worded as a collection of edits which alter a substantial fraction of the wording of section 333 of the Insurrection Act, and so I found it helpful to create a marked-up version of §333, showing the changes. Also helpful is a flow chart in the Wikipedia entry for the insurrection act.

As either of these should make clear, the major change is to expand the circumstances under which the President can deploy the armed forces and take direct control of the National Guard away from the Governors who normally command them. In the past, he could do so only in cases of "insurrection, domestic violence, unlawful combination, or conspiracy". Under the new wording "natural disasters, public health emergencies and terrorism" are added to the list as is the wildcard "other circumstances". Other changes include specifying that the President can use the armed forces, including the National Guard, in US territories as well as the states, explicitly naming the National Guard rather than referring to "the militia" and what appear to be minor textual changes.

With a broad enough interpretation of "other circumstances" and "opposes or obstructs the execution of the laws" or "impedes the course of justice", the President can pretty much deploy the military domestically whenever he feels it necessary and become the sole military commander in the area, federalizing the National Guard. So long as you trust the President, this isn't such a bad thing. But as other nations have learned, elected officials are not always what they seem.

Final Questions

The final result of these theories and changes in the law is that we have a President who is the sole decision maker in a unified hierarchical executive branch with inherent unenumerated powers as Commander In Chief and Chief Executive upon which Congress may not intrude, who is responsible for interpreting the laws and Constitution and how they are carried out, who is authorized to take sole command of all federal and state military force and use it domestically in any circumstances where he believes that justice or the execution of his interpretation of the laws is impeded.

The questions that we must now ask ourselves are

1. What exactly is the difference between "the decider" as constituted above and "dictator"?
2. Do we believe that this President and all of his successors are trustworthy enough to be given this power?