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Shadow Elite: Warrantless Wiretap Case & Obama: Abuse of Executive Power?

06/08/2010 05:12 am ET | Updated May 25, 2011

The next few "Shadow Elite" columns will focus on the troubling implications of a steady increase in executive power around the world. This week we'll trace the path over time of expanding executive power in the U.S., and look at whether President Obama's defense strategy in the warrantless wiretapping case was a case of overreach.

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Last week's ruling that the warrantless wiretapping from the post 9-11 era is illegal was not just a stinging rebuke to the Bush administration. It also slammed the current administration for arguing, just as the previous one did, that the lawsuit brought by an Islamic charity should be dismissed because allowing it to go forward could reveal state secrets.

The judge harshly criticized the Obama Justice Department for invoking the so-called state-secrets privilege, saying it would allow "unfettered executive-branch discretion", with "obvious potential for governmental abuse and overreaching".

The Obama defense strategy came to light last year, and for many, it was a disturbing deja vu of the brass knuckles tactics of the Bush years. The Huffington Post's Dan Froomkin had this from Louis Fisher, a constitutional law specialist at the Library of Congress.

If an administration is at liberty to invoke the state secrets privilege to prevent litigation from moving forward, thus eliminating independent judicial review, could not the administration use the privilege to conceal violations of statutes, treaties, and the Constitution? What check would exist for illegal actions by the executive branch?

President Obama's willingness to assertively flex executive power in the wiretap case, and beyond, has come as an unwelcome surprise to supporters who hoped that he might reverse what they saw as a wholesale grab of unauthorized authority by the Bush White House. But the trend towards greater executive power did not begin with George W. Bush, and it would be naive to assume that it would end with him.

As I show in my book Shadow Elite, a redesign of governing, aided by the rise of executive authority, is one of the key developments of the late 20th and early 21st centuries that has helped usher forth a new system of power and influence. It's a system in which a small number of ultra-nimble players moving seamlessly among roles in government, business, think tanks, and media pursue their own agendas, at the expense of democracy, transparency, and accountability.

A vision of a streamlined state burst onto the public stage in the United States and the United Kingdom in the early 1980s, with Ronald Reagan and his ideological soul mate, Margaret Thatcher, leading the rhetorical charge. Reagan campaigned against "big government" and presided over an age of deregulation, relaxing constraints on industry, while Thatcher pressed to privatize the economy by selling government-owned enterprises. The redesign of governing had its origins in these policy reforms (especially those dealing with government itself), as well as in expanded executive power, which often was necessary to implement reform.

The "Reagan revolution" sanctified the practice of contracting out government services, ostensibly to control costs while letting governing entities concentrate on their central mission. And the trend is so entrenched that it transcends party, with President Clinton and Vice President Gore declaring they would "Reinvent Government". The result: a host of nongovernmental players were increasingly doing the government's work, often overshadowing government bureaucracy, which began to look like Swiss cheese: full of holes, a condition ideal for a new kind of power broker to plug those holes.

This new power broker could also take advantage of expanding executive power.

Enter George W. Bush and the defining event of his presidency: 9/11. Vice President Cheney was convinced that the power of the executive had eroded in the post-Vietnam era, (though the scholarship suggests that those powers have actually been intensifying throughout the 20th century). And 9/11 gave him and his allies fertile ground to reamass what they believe they lost. The warrantless wiretapping declared illegal last week was one of the most controversial expansions of executive power during the Bush Presidency, advocated obstensibly to fight the "war on terror". (The expansion was by no means confined to the U.S.: executive power globally has grown as a result of the post-9/11 adaptation of international security law.)

Another means of expanding executive power was the use of presidential "signing statements". A signing statement is a pronouncement about a provision of a law passed by Congress and signed by the president. While Presidents Carter, George H.W. Bush, and Clinton all signaled their objections from time to time through constitutional challenges contained in signing statements, George W. Bush increased the number of such challenges more than tenfold compared with Clinton: more than 1,100.

Further, he employed them in an unprecedented way: to effectively curtail the power of the legislative branch by threatening (via the challenge) to not enforce a law passed by Congress. In effect, Bush claimed to accomplish what the Supreme Court has deemed unconstitutional―a line item veto. Just as presidents have been afforded leeway during wartime in the interest of protecting the nation, Bush used 9/11 as justification to expand presidential powers, often keeping the legal justifications secret.

Such precedents leave an enduring legacy, which may be why in early 2007 a distinguished panel of the American Bar Association determined that the ways that signing statements were used by George W. Bush are "contrary to the rule of law and our constitutional system of separation of powers." The use of signing statements was also criticized by candidate Obama, who said that he would show greater restraint.

But as President, Mr. Obama has provoked bipartisan anger by issuing a handful of his own statements. Four senior House Democrats said in a letter to Obama that they were "chagrined to see {Obama} appear to express a[n] attitude.." similar to that of President Bush.

And the out-going president of the ABA, H. Thomas Wells, said this last summer to the New York Times:

We didn't think it was an appropriate practice when President
Bush was doing it, and our policy is such that we don't think it
is an appropriate practice when President Obama is doing it.

And in recent weeks, President Obama flexed executive muscle again, saying he would make 15 so-called recess appointments, a day after Congress left for spring recess. The New York Times says the move puts Obama on par with his predecessor in terms of number of recess appointments at this time in his presidency, though a Washington Post editorial notes that Obama's appointees have been waiting far longer for confirmation. (According to the Congressional Research Service, President George W. Bush made 171 recess appointments; President Clinton made 139.)

But it was the effort in the spring of 2009 by the Obama Justice Department to get the warrantless wiretap case decided last week dismissed that left some of the President's own supporters feeling that the move smacked of a Bush-era executive power grab. Some of those supporters and civil libertarians are hoping the Administration will accept the Judge's decision and choose not to appeal.

In a broader way, Obama's willingness to test the limits of executive authority, mirroring the defense strategy of the last White House in the warrantless wiretap case, underscores a fundamental truth about power. Once it's deployed, it's like toothpaste out of a tube: it's not likely to find its way back in on its own volition. And with increasing executive power a worldwide trend, this trajectory looks even more ominous. That's why vigilance is needed on any new assertions of executive authority, even under a President who insists that he will deploy his power more judiciously than the last.

Linda Keenan edits the Shadow Elite column.