Our Dangerous Decider
Pulitzer Prize winner Charlie Savage on the problems with unchecked presidential power.
By Jesse Singal, Campus Progress
November 7, 2007
White House photo by Paul Morse
The winner of a 2007 Pulitzer Prize for his coverage of President Bush’s signing statements, Boston Globe reporter Charlie Savage has proven himself to be one of the most erudite, aggressive investigators of presidential power. In his first book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, he catalogues one of the most disturbing aspects of the post-9/11 era: the vast, unprecedented expansion of executive branch power.
Recently, Savage participated in an e-mail interview with Campus Progress.
In your new book you note that executive branch overreach is not a political issue. Why shouldn’t we treat this topic like any other squabble between political parties?
Presidential power is not a partisan issue. America has had Democrats and liberals as president in the past, and it will have them as president from time to time again in the future—perhaps as soon as 14 months from now. Those future presidents, whoever they are, will be able to use the arsenal of enhanced executive powers developed by this administration to unilaterally impose their own policies on the nation. That is why it is in the long-term interest of all Americans, no matter what their politics or party affiliation, to understand and have an informed debate about what has been happening.
There have been a number of notable conservatives, both inside government and out, who have protested the growing accumulation of unchecked power in the White House. The suspicion of concentrated government power has traditionally been a conservative principle, as has the notion that inherited institutions ought not lightly be abandoned. That said, it is always harder for political reasons to criticize a White House of one’s own party, a factor that was aggravated because of the atmosphere of national security crisis that began on 9/11.
There’s more than a bit of an obsessive streak in a figure like Dick Cheney, who has for decades reacted immediately and forcefully against any “intrusion” on the power of the executive, and who has a disturbing penchant for secrecy. What do you see when you try to step inside Cheney’s head or understand the psychology of “presidentialists” in general?
Cheney’s great interest in life is war power: national security, foreign affairs, intelligence, and the military. Although Republicans and Democrats now differ on what to do about Iraq, in general over the past 60 years national security and foreign affairs has been the area in which there has been the least amount of difference between the two parties. When you consider Truman in Korea or Johnson in Vietnam you can see that it hasn’t made much difference which party controlled the White House for purposes of the use of force abroad.
Cheney believes that the world is so complex and dangerous that the United States must act aggressively and frequently to stop threats and advance its interests. Any rule in which Congress must be persuaded to go along or otherwise gets to influence the big decisions on national security, instead of the president—whoever that is at any given moment—getting to make such calls completely at his or her own discretion, increases the likelihood of leaks and raises the bar that must be reached before the United States will act. Cheney thinks that the risk of inaction in national-security situations (e.g., Iran is allowed to become a nuclear power, or whatever the next issue is) outweighs the risk that a misguided leader will make a flawed decision (e.g., the U.S. gets bogged down in an ill-advised war). So while Cheney would clearly prefer for Republicans to win elections, because he is focused on military and intelligence power, it does not bother him unduly that from time to time a Democrat will wield the powers that he has been developing.
Very few legal experts take the Unitary Executive Theory seriously. And yet, despite the fact that it stands on such shaky legal footing, we see this administration compulsively using its framework and language to justify all manner of overreach. Given the way in which the executive branch handles internal legal questions—the White House’s Office of Legal Counsel, you write, is an extremely powerful entity, as an administration official could obtain near-total legal immunity simply by saying that he or she “relied in good faith upon the legal advice provided by” the OLC—what does this tell us about the danger of a president setting up a legal echo chamber in which administration lawyers are only “consulted” in an extremely cynical, superficial way?
Many legal scholars think that your description of the danger is precisely what happened at the OLC under this administration, a breakdown exemplified by the notorious 2002 "torture memo" that leaked after Abu Ghraib. Dawn Johnsen, who ran the OLC under Clinton for several years and is now a law professor at Indiana University, has spearheaded a project by a number of OLC veterans to come up with principles that should guide the OLC and prevent the occurrence of another "torture memo." Whether their work has an impact will depend on whether future presidents actually want OLC to act as a good-faith constraint on what they can do.
If there’s little real argument among legal experts about the Unitary Executive Theory, there’s even less among military experts about torture. Intelligence specialists have known for years that it is an ineffective means of getting reliable information. How did such amateur, cruel interrogation techniques become the norm? How was the policy so easily hijacked?
After 9/11, government officials who were charged with protecting America were determined that they would do everything possible to prevent another attack—that even if another attack were possible, they never wanted it to be said that there was anything they could have done, but failed to do, to stop it. This fostered a mindset in which they wanted to go right up to the limit of the law in counter-terrorism policy—to get chalk on their cleats, as one official put it.
The first problem with this approach is that everything comes down to a discussion of what is legal, rather than what is the best policy—a debate over the law substitutes for a debate over what is wise. Moreover, because the administration legal team, pushed by Cheney, also happened to foster an extremely aggressive view of the president’s power as commander in chief to bypass laws governing such matters as harsh interrogations, their conclusions were that harsh interrogations were permitted—and that was the end of the discussion.
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I’m betting you progressive types wouldn’t have any problem with an unchecked executive branch as long as it was used to push progressive goals.
— Will Jolly - Nov 11, 06:16 PM - #You bet wrong. The “progressive types” I know believe in the Constitution as a check on abuse of power, no matter who is president. That’s how we have a strong, effective democracy.
— David Halperin - Nov 12, 11:37 AM - #Republicans must remember the guy upstairs gave them a brain to think, NOT to blindly follow a king and a dickhead with lockstep loyalty.
— Ed - Nov 15, 08:09 PM - #