Issue #7, Winter 2008

Imperial March

President Bush has added more power to the imperial presidency than previously imagined. It’s time to recalibrate the checks and balances between Congress and the president.

If nothing else, the presidency of George W. Bush will be recorded by historians as a heightening of the “imperial presidency,” particularly in the realm of national security. Over the past seven years, the White House has been remarkably successful in seizing near-complete control of the military, security, and intelligence apparatus of the federal government, a turn that has raised significant concern among civil libertarians of all political stripes. As Al Gore said in a 2006 speech, “The American values we hold most dear have been placed at serious risk by the unprecedented claims of the Administration to a truly breathtaking expansion of executive power.” But Bush and Vice President Dick Cheney cannot claim all the credit, or be tagged with all the blame, for the executive branch’s current ascendance. In fact, its rise has a long and complex history–an inconvenient fact that neither supporters nor detractors of the Administration like to dwell upon. After all, if Bush and Cheney are the problem, then removing them from office is the cure–not to mention a powerful electoral motivator. Yet the notion that the imperial presidency will vanish on January 20, 2009, is both unfounded and hazardously naïve.

To be sure, Bush and Cheney have aggressively pushed the envelope on all elements of executive power. Going back to his time in the Ford Administration, Cheney has nurtured a belief in the supremacy of the Oval Office–recall his vigorous and ultimately successful defense of absolute secrecy for his energy task force, well before September 11. After the attacks, however, opportunities for the exercise of the “monarchical prerogatives” (as Cheney’s staff wrote in the Iran-Contra minority report, published while he was in Congress) multiplied, with the Administration adopting policies of torture, warrantless surveillance, and indefinite offshore detention. Even as legislators were negotiating carefully defined new statutory surveillance and detention authorities in the USA Patriot Act, a team of lawyers in the White House and the Justice Department were assembling justifications for open-ended, warrantless surveillance and unlimited detention at Guantánamo Bay. Both the process that yielded these policies and their results have elicited harsh condemnation from a range of critics, from Nadine Strossen of the American Civil Liberties Union (ACLU) and Bob Herbert of the New York Times on the left to Nixon White House counsel John Dean and former Republican congressman Bob Barr on the right.

Yet missing from many of these critiques has been an exploration and appreciation of the broader trends that created the conditions for a heightening of the imperial presidency–most notably, changes in the size, managerial complexity, and legal instrumentation of the executive branch’s national security powers. None of these trends is wholly new, and noticing them is hardly an insight. Political scientists and scholars from Arthur Schlesinger Jr.–who popularized the term “imperial presidency” in his 1973 book of the same name–onward have charted the executive branch’s growth over the past 70 years. Historians like Andrew Bacevich in The New American Militarism and James Carroll in House of War have eloquently highlighted, in particular, the growth of a national security bureaucracy. Equally, scholars such as Andrew Rudalevige in The New Imperial Presidency and John Burke in The Institutional Presidency have mapped the increasing managerial and organizational capacity of the White House. And most recently, Philip J. Cooper in By Order of the President and Kenneth Mayer in With the Stroke of a Pen have highlighted the growing salience of the president’s unilateralist law-making tools. Nevertheless, what is still missing is an account of how these different developments combined to fuel the unprecedented growth of the national security presidency in terms of sheer scale, the centralization of its powers, and the proliferation of executive orders and other unchecked executive tools. Along the way, each of these developments has met little or no resistance from Congress.

No matter what the next president thinks about the war on terror, we should not expect the underlying balance of power between the branches to change overnight. Nor should we expect presidential incentives and opportunities to shift radically: Power is tough to give up, especially when, from an executive’s risk-averse perspective, it makes for very efficient policymaking in our interdependent, terror-ridden world. Yet there are measures that Congress can take to reassert its power and its rightful role in our constitutional system. And no matter who becomes the next president, progressives must be committed to reining in the virtually unchecked power of the national security presidency.

A Different Beast

During the twentieth century, the executive branch of the federal government grew in ways the Framers could not have predicted. In 1830, the federal government had roughly 11,000 employees. In 1930, it had 608,915 employees, and by 2004, it had 2,649,319. Growth in the national security state has been even more marked. During World War II, General William “Wild Bill” Donovan directed the Office of Strategic Services (OSS), the nation’s wartime intelligence service, which even at its acme never had more than 13,000 members. In November 1944, almost six months before the fall of Berlin, Donovan proposed to President Franklin D. Roosevelt that the United States create a permanent “Central Intelligence Service.” Roosevelt turned him down, fearing public animosity (the plan, noted the press, had all “the earmarks of a Gestapo”).

But by 2005, less than 60 years later, the federal government was spending $44 billion on its 16 permanent intelligence agencies and their combined staff of more than 100,000. Six intelligence components produce intelligence; six collect it; three collect and build it; and nine components, agencies, and sets of officials use it. At its founding, the CIA was so starved for cash that it resorted to skimming money from the Marshall Plan. Now it has a secret budget running into the billions, used not just to fund operations but also to suborn other countries’ intelligence services into evasions of federal law. Whatever the merits of its policy justifications, this transformation’s constitutional consequence–a shift in power toward the executive branch, which oversees the combined apparatus–is clear.

This growth in intelligence spending since 1946 has been largely driven by technological change, which in turn has vested the executive branch with a new kind of power. The emergence of large, private databanks holding individual financial and transactional histories, for example, has provided a new, easily accessed tool for national security agencies to pry into individuals’ lives, and an incentive to develop computational resources and data-mining algorithms to leverage that possibility. Telecommunication’s reliance on economies of scale and network effects–you couldn’t build the Internet for one person alone–gives the government unprecedented opportunities to piggy-back on private initiatives. For example, it plugs into the massive telecommunications routers that carry most of our email and telephone calls in order to vacuum out huge swathes of our correspondence. Technology, in short, adds a qualitative dimension to the quantitative change in executive branch scale.

Congress has failed to respond adequately to these monumental shifts in executive power. As Fritz Schwarz and I have discussed at length elsewhere, a Senate investigation in the mid-1970s, led by Senator Frank Church, yielded a comprehensive accounting of intelligence abuses in the Cold War era and an equally capacious list of reform recommendations. But limited political capital meant that while congressional oversight committees were strengthened and a federal statute against warrantless wiretapping was enacted, too many of the Church Committee’s necessary reforms were left on the table. Moreover, such periodic bouts of attention could not compensate for Congress’s longer, and more significant, failures with respect to national security powers. Three, in particular, merit special scrutiny.

First, Congress has never provided clear ex ante limits on intelligence authorities, as it did with the rest of the federal bureaucracy. In the 1930s, recognizing the impossibility of direct management of the vast post–New Deal regulatory state, Congress enacted a range of framework statutes to set agencies’ goals and establish checks and balances within them, essentially fire alarms and watchdogs to signal to Congress when something went awry. These laws set the ground for new federal bureaucracies, but also carefully defined and limited bureaucratic mandates for agencies such as the Department of Labor, the Federal Communications Commission, and the Food and Drug Administration. By contrast, the 1947 National Security Act conjured up the CIA in six terse and uninformative paragraphs. From its inception, the CIA pushed the envelope of its legal authority, plunging early on, for example, into covert, psychological operations against leftist political parties in democratic Western Europe.

Second, Congress failed to create intradepartmental oversight mechanisms, as it did in other parts of the postwar regulatory state. The Administrative Procedure Act of 1946, for example, not only acknowledged administrative agencies’ large discretion, but it also imposed ongoing oversight constraints: Most importantly, it allowed private parties to intervene in agency rulemaking and sue to prevent “arbitrary or capricious” agency action. In subsequent decades, Congress added open government laws, such as the 1966 Freedom of Information Act, the 1974 Privacy Act, the 1976 Government in the Sunshine Act, and the 1972 Federal Advisory Committee Act.

But this infrastructure of legislative constraint largely bypassed the national security agencies. Private parties cannot easily challenge the rules and decisions of national security agencies, as they can when other agencies act. Because Congress has allowed exceptions to disclosure and privacy laws for security agencies, it is hard even to know what to challenge. Exceptions from information- and procedure-forcing laws, moreover, are compounded by judicial quiescence, rendering existing oversight mechanisms toothless. Under the Supreme Court’s scalpel, for example, parts of the Freedom of Information Act that might have forced some public oversight of CIA activity have been nullified. And groups that monitor intelligence agencies, such as ACLU and the Center for National Security Studies, too often lack the statutory levers available to groups that track, say, the vagaries of the Environmental Protection Agency or the Food and Drug Administration.

Finally, oversight of security agencies by Congress itself has been weak to nonexistent, with the exception of moments such as the Church Committee and the 9/11 Commission. Reflecting on Cold War intelligence practices in 1976, former CIA Director William Colby commented, “The old tradition was that you don’t ask. It was a consensus that intelligence was apart from the rules.” Congress neither knew about nor cared to know about assaults on elected governments in Guatemala and Iran. At home, the CIA started a letter-opening program targeting hundreds of people, from the memers of Student Nonviolent Coordinating Committee to Richard Nixon. At the behest of the Johnson White House, it began a domestic spying program, “Operation Chaos,” to track antiwar groups and root out foreign influences. Even on these domestic matters, historian David Barrett writes, “Congress deferred to presidents and leaders of the CIA” without knowing what the Agency was doing.

Oversight failure has been fairly constant regardless of whether we have divided government or the same party in the White House and in command on Capitol Hill. The last five years have been instructive on this count. From 2002 to 2006, Congress enacted one measure with truly significant civil liberties consequences in the national security arena–the September 2006 Military Commissions Act, which complemented a December 2005 effort to deny detainees in Guantánamo habeas corpus, the traditional judicial remedy for unlawful detention. Yet even after the return of divided government in January 2007, neither house of Congress has been able to pass habeas restoration legislation. In fact, in August 2007, both (Democratically controlled) houses rushed to enact the Protect America Act, which created a categorical exemption to the surveillance laws and guaranteed the continuance of open-ended surveillance. Legislative oversight and constraint, in short, are not much more in evidence today than they were in 2004–or even 1954.

The President in His Labyrinth

As the executive branch grew in size and power, it also became more centralized, not only in national security areas, but in all its endeavors. This is the second significant trend that laid the groundwork for the contemporary imperial presidency. And, like the growth in sheer executive power, it too has been abetted by congressional errors and apathy.

Through statutes and post–New Deal administrative devices, the White House over the decades has fashioned tools to exercise direct and immediate control over a far-flung federal bureaucracy. What began as a worthy effort at efficiency, however, has evolved into a means to steal a march on Congress by formulating and pushing into action public policies without legislative sanction. Under the current president, these tools have been superseded by an even more centralized form of decision-making: a small cadre of vice-presidential intimates making critical decisions about national security, often without the knowledge or participation of cabinet members. Early on, for example, they developed and implemented the idea of military commissions standing outside the purview of American justice. Nevertheless, this coterie did not achieve this status overnight; the “Cheney cabinet” has been a long time coming, and the centralization of power in the Executive Office of the President has been a consistent, bipartisan development.

Presidents have not always had labyrinthine groves of policy and communications staff. It was not until 1939–well into the New Deal–that the Executive Office of the President was created and the president had the authority from Congress to hire new staff. Subsequent presidencies enlarged the White House’s capacity. Nixon, for example, saw the larger federal bureaucracy as his enemy and fashioned a “counter-presidency” inside the White House with more than double the staff of his predecessor. Reagan built on this legacy by centralizing the process of agency rulemaking, using the Office of Information and Regulatory Affairs within the White House to ratchet up the Oval Office’s influence.

Issue #7, Winter 2008
 

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