Be Afraid, Be Very Afraid

In the ongoing saga that is the US government's surveillance of its own citizens, Vice President Cheney weighs in on executive power:

I believe in a strong, robust executive authority, and I think that the world we live in demands it," said Cheney. He explained that he has been anxious about "infringement on the authority of the presidency" since the Nixon White House, where he served as deputy to counsellor Donald Rumsfeld. "Watergate and a lot of the things around Watergate and Vietnam, both during the '70s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," he said.

But Cheney was even more revealing in an interview on CNN on 20 December, responding to a question from reporter Dana Bash, who sought to give the vice-president every benefit of the doubt and an avenue of escape. "You talked about the fact that you briefed Congress voluntarily, that you do have a review process," said Bash. "But let's just say, in ten years or a few years, a president is elected who doesn't want to do those things, but you've given him this kind of power. What happens then?"

"Well," Cheney replied, "it will be up to him whether or not he uses it." Cheney's idea of the head of state invested with absolute power is a venerable one. Bush's presidency is the latest experiment to achieve it.

And if all this sounds very familiar, it should.  Thanks to Matt, we have these pearls of wisdom from the great one himself:

NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON: This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South—

FROST: But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense—is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON: No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.

Of course many commentators have talked about the current "state of emergency" and its impact on the locus of power:

President Bush's decision to refer to himself constantly as the "Commander in Chief of the Army" after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible. Agamben, The State of Exception

Comments

[John Emerson]

I'm really dealing with cognitive dissonance at the moment. I'm not a legal scholar at all, but my memory is that it's truistic to say that it's uncertain whether the Founders wanted a strong central government at all, and fairly clear that they were very worried about an overpowerful executive. But it's the original-intent people, if I'm not mistaken, who are backing Cheney here.

Sometimes it seems to me that legal scholarship, especially conservative legal scholarship, is entirely relativistic and "anything goes."

[Alain]

John, I am not a legal scholar either but I tend to agree with you. If you read the first chapter of State of Exception, Agamben talks about Lincoln's willingness to suspend habeas corpus, and basically rule as a dictator, throughout the civil war. Whether this was justified, it is interesting that many Straussian scholars look to Lincoln as the model of great leadership. And I think they purposely obscure their contempt for the law in order to carry out their agenda.

[Craig]

While they may have worried about a strong or over-powerful executive (mind you, I recall reading in the past few days -- and can't find it -- reference to fears of Congress rather than of the President during the ratification debates), the House of Representatives is, structurally, the weaker of the two halfs of Congress. The Senate, by default, is the stronger.

This is signficant beyond mere matters of voting and speaks to the symbolic ordering of American politics: the House of Representatives is the representative body of the People, while the Senate is the representative body of the States. (As a form of mixed constitution, it follows that the President is the representative of the place of the monarch.) In order to combat a strong central (i.e., federal government), the States are stronger than the People.

The Senate, then, is a classic aristocratic institution -- the states are formally equal among themselves. It is a house of peers (without a peerage, at least). The House, in constrast, is an ostensibly democratic institution -- with the ratio of citizens to representatives being the major point of contention during ratification (and the universally agreed upon principle that there should be a property qualification of some sort even if no one could agree on specifics). Thus, the representatives qua the People are equal but qua States they are unequal (compare Rhode Island and California).

This doesn't get at the issue of the President, however.

(Not a legal scholar or an Americanist.)

[Alain]

Craig, I appreciate the background. I have limited knowledge (and memory) of the concerns of the American founders but I think you are right that they were far more concerned with the Congress (and the people)having too much power. But today, the "imperial presidency" seems to rear its head every 25 years or so. What troubles me, and I think many others, is that the stakes have never been higher for the United States and the world. And I suspect that American democracy is not robust enough to correct itself this time around, which may produce even more catastrophes down the road. I hope I am wrong.

[old]

with respect to presidential power, the founders did have concerns, but sacrificed many of them in the face of the ineptness of the Articles of Confederation (Constitution's predecessor). And it is right to point out that things became even more dramatic when Lincoln put his mark on the presidency. In general the debate over such things has recently revolved around federal v. state govt. instead of executive v. other branches. Conservatives had been gung ho on states rights until the Supreme Court completely trounced on Florida's perogatives in Bush v. Gore. The thing that conservatives had been most keen to do within federal parameters was to limit Judicial power (though they really only meant, limit Judicial power in cases that go against our thinking). As such, some scholars (and not all of them conservative) had been beginning to develop a theory of the need for the executive branch to assert itself again against the judiciary (and congress too). But all of this is rather formalistic muckracking in my opinion. No structure, democratic, power sharing, or otherwise is able to save us. It is, of course, convenient for conservatives to now argue for a strong executive, but, in fact, in times of war the judiciary and the legislative branches have always, always had to take a back seat in U.S. history (and in the history of the west in toto), and this in spite of the 'founders' well intentioned hope that giving congress the purse strings would reign in such executive war powers.

[old]

... thus the genius of the Bush administration (and the thing that rightly causes enormous fear) is, as Agamben states, the constant reference to powers as the 'Commander in Chief' or as a 'war time president', etc. And, of course, the real trick is that the war on terror can never be over until the executive says it is over (perhaps Jan. 19th of the year in which Republicans lose presidential power?).

[Alain]

Thanks old. I am largely in agreement with your historical assessment. But the one caveat I would add is that today "we" (however defined) must contest the notion of war, specifically a global war on terror. Before September 11, very few Americans would have supported this nonsense and the bastards know it. This is why the PNAC said that it would take a "Pearl Harbor" type event to mobilize the nation to rally behind more aggressive military adventurism. Today, despite the President's sagging poll numbers, the country is still evenly divided as to what our stance should be in terms of the "terrorists." Those of us who oppose these policies have failed to convey the false justifcations for going to war (and now they are used to explain the broad monitoring of citizens). Until this moment I have assumed the reason for this failure is that the power elites have been largely in agreement with these policies. But one senses in the last month, with the civil liberties of potentially millions of Americans at stake, there may be a chance for something to break. At least I hope so.