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The Ultra-Imperial Presidency

• December 16, 2010 • 5:00 AM

Yale’s Bruce Ackerman, a constitutional scholar, warns that unilateralism in the “most dangerous branch” of government is setting the stage for a tragic future.

Back in 2006, Bruce Ackerman co-authored the “Liberal Manifesto,” a document of protest signed by dozens of prominent intellectuals who condemned the “illegal, unwise and destructive” Iraq war and the “politics of panic” of the administration of President George W. Bush. But Ackerman, a professor of law and political science at Yale and the author of the new book The Decline and Fall of the American Republic, is worried about more than one unenlightened man in power. He believes that a runaway U.S. presidency could someday be the springboard for an authoritarian takeover. He wants to shake Americans out of their complacent belief that the Constitution will always protect their tradition of government. In the following interview, Ackerman talks about how far the country has strayed from the system the Founding Fathers envisioned and how it can get back on track.

Miller-McCune: Professor Ackerman, you’ve said publicly that an extremist such as Sarah Palin or her mirror image on the left could be elected to the White House in this century. How would such a candidate arise?

Bruce Ackerman: Since 1972, presidential candidates are selected by activists who vote in primaries, not by party leaders in conventions. These primaries are very poorly attended. And who turns out? It’s the ideologues of the left and the right. If a candidate mobilizes the strong ideological base, he or she can win. That means we can have an election in which a relatively extreme lefty runs against a relatively extreme righty.

M-M: But in the past, America has survived what you have called “serious outbreaks of presidential lawlessness” during Watergate, the Iran-Contra affair and the war on terror.

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Bruce Ackerman

Bruce Ackerman

[/class] BA: But we haven’t had an extremist in the White House. George W. Bush campaigned as a centrist. He was a compassionate conservative. Jimmy Carter, Bill Clinton, Barack Obama — they were centrists. We’ve been lucky. But once the president, extremist or not, gets into the White House, he commands a centralized apparatus of control that is far more formidable than Nixon had at the time of Watergate or Ronald Reagan had at the time of Iran-Contra. So that’s the second big problem — the centralization of operational power in the White House.

M-M: These are the “superloyalists” your book refers to? You say they should be confirmed by the U.S. Senate.

BA: That’s absolutely correct. Before 1939, the president of the U.S. had no [permanent staff advisers]. By no, I mean none. We now have 500 superloyalists in the White House who have a lot of power. Moreover, over time, the White House staffers have increased their power to order government departments around. Since Clinton, it’s been very standard for presidents to issue something called directives, ordering the departments to issue one kind of regulation or another. If we had an extremist in the White House, he or she would pick 500 loyalists, almost none of whom are confirmed by the Senate, and then they could start giving orders to the far-flung federal establishment.

M-M: Do some “superloyalists” have more power than Cabinet members?

January-February 2011 Miller-McCune BA: There’s no mistaking the direction of change. Who has more power in matters of foreign policy — the head of the National Security Council or Secretary of State Hillary Clinton? She is a very powerful person. However, she is spending a large percentage of her time, as she should, outside the country. The national security adviser is in the White House every day, talking to the president. It doesn’t require a fancy theory to suspect that the people who see the president every day have more effective power. But it’s a shifting balance. Personalities matter. The point of this book is to take the 50-year view, not the two-month view or even the Obama view. But over time, there’s no mistaking the general tendency, which is more power in the White House and a diminution of power in the Cabinet secretaries.

M-M: In your view, are Republican and Democratic presidents equally responsible for power grabs?

BA: Yes. It’s true that the three worst incidents have occurred under Republican presidents — that is, Watergate, Iran-Contra and the extra-legal, illegal activities of the war on terror. But there has been a bipartisan effort by presidents from Franklin Roosevelt through to the present to aggrandize presidential power. And there are crucial features of the existing edifice that have been built by Democratic presidents. I wrote an op-ed in the Wall Street Journal condemning Obama’s appointment of Elizabeth Warren, a person whom I happen to admire, to, basically, a decision-making post in the U.S. Treasury Department of the first importance, without gaining the consent of the Senate.

M-M: Right. Warren was appointed to set up the Consumer Financial Protection Bureau. But let’s turn to another of your chief worries, the erosion of civilian control over the U.S. military. On what do you base your prediction that the military could someday govern “behind the throne”?

BA: Here, the critical date is 1986, when a statute called the Goldwater-Nichols [Department of Defense Reorganization] Act was passed, which had very fundamental implications for the relationship between the military and civilians. For the first time in American history, the act made one person, the chairman of the Joint Chiefs of Staff, the spokesman for the military. Gen. Colin Powell, who at that time became the chairman, immediately moved to inject himself into public political debate. In 1992, as President George H.W. Bush’s chairman of the Joint Chiefs, he wrote an op-ed in The New York Times lecturing Clinton about what he should do in Bosnia if he won the election. He formulated the famous Powell Doctrine telling the president when he should use military force. It is not the job of the military to create a fundamental doctrine. Even more remarkably, this was accepted, and further chairmen have built on this in various ways.

M-M: But President Obama last year fired the commander of U.S. Forces in Afghanistan, Gen. Stanley McChrystal. Doesn’t that show that the president is in charge?

BA: The McChrystal affair is a symptom of a larger pathology developing, especially since 1986, in civilian military relations. Obama was completely correct in discharging McChrystal for insubordination. McChrystal had absolutely no right in a question-and-answer session in London to say that a withdrawal from Afghanistan would lead to “Chaosistan.” When it hit the headlines, Obama had little choice but to assert his authority. But what we have to do is get to the basic structures that are making this increasingly a problem.

M-M: Was it a problem in early 2006 when eight retired generals and admirals called for the resignation of U.S. Defense Secretary Donald Rumsfeld?

BA: They engaged in a very self-conscious effort to discredit Rumsfeld, and they gave Time magazine and other people a reason to believe that they were also speaking for the high command. They said Rumsfeld’s policies were terrible, we have to get rid of Rumsfeld. And after the 2006 election, President Bush did get rid of Rumsfeld. Was that the appropriate thing for retired generals to do? To lead something that among experts is called “The Revolt of the Generals”? I don’t think so. There are no well-worked out guidelines for what retired generals should do. They should be able to speak — they’re citizens like everybody else. But what particular restraint should be placed on them? Nobody has thought this issue through. The next time around, we’ll have another revolt of the generals which points back to the 2006 experiment.

You could be a critic of Rumsfeld or you could be a defender of Rumsfeld. That’s not the point here. Rumsfeld is the civilian head of the defense forces of the United States, and it’s a very bad thing for a group of highly qualified retired generals to campaign for his ouster. That’s the kind of problem we have to confront.

M-M: How would your proposal for a “Canon of Military Ethics” help reinforce civilian control?

BA: The idea of the “Canon of Military Ethics” is modeled on the Canon of Judicial Ethics. The judges get together and try to think about practical problems and what the right way to respond to these problems is. When a general is summoned to Congress, to what extent is he supposed to defend the line of the administration, and to what extent should he be free to criticize it? This is a very important problem. A presidential commission on military-civilian relations could have leading generals, former secretaries of defense and various other people hash it out and try to come up with guidelines just as we have for the judiciary, so that people would reflect upon their responsibility.

M-M: In Decline and Fall of the American Republic, you say fundamental reforms are needed to rein in what you call “government by emergency,” a sweeping expansion of powers that paved the way for the infamous “torture memo” written by John Yoo of the Office of Legal Counsel in the U.S. Justice Department during the George W. Bush administration and the indefinite detention of terrorist suspects at Guantánamo Bay. Wasn’t it enough for Obama to repudiate torture and pledge to shut down Guantánamo?

BA: Absolutely not, or fire McChrystal. All these things are desirable, but the pledge to end torture, which I very much support, can be repudiated by the next president of the United States. What you do by executive order, you can repeal by executive order. We have to think about structural steps. … I should emphasize, there’s no indication that the Obama administration takes these problems seriously. They have done nothing fundamental and structural to respond to the abuses of the Bush administration, let alone further structural abuses to come.

M-M: Given the potential for abuse, how should the government respond to a terrorist attack?

BA: My proposal is to have a new emergency statute which recognizes that right after a 9/11 catastrophe — and we may well have worse catastrophes in the 21st century — it is appropriate for the United States government and the president of the United States to take really sweeping actions for a brief period of time — I’d say, 45 days. I say, however, that this state of emergency has to be approved by Congress, and that every 60 days thereafter, the president has to go back to Congress and get it approved again, with a supermajority — the first time, 60 percent of Congress has to go along, and the next time 70 percent, and the next time and for every time thereafter, 80 percent. What this means is that emergencies end. Our problem right now, after 9/11, is that so many of the emergency measures, which I would support as short-term devices after a tragic episode, have become part and parcel of our system. And when we have another attack, which we will, people will say, “Well, you know, these measures weren’t enough to stop the attack, so let’s be even more draconian.”

It’s never going to end if you just rely on the national security folks. The national security folks are in the business of looking around the world and seeing how many nutcases there are who are threatening us. There are 7 billion people in the world. There are always going to be tens of millions of people who don’t like America. And with the big technological shift, it’s becoming possible for smaller and smaller numbers of people to buy more and more dangerous weapons for lower and lower prices. Five hundred people with a couple million dollars will, predictably, in 20 years’ time, have nuclear capacities. One of these groups is going to be lucky. That’s going to happen. The question is, whether it is totally going to destroy our tradition of freedom or whether it will simply disrupt it for a manageable period of time.

M-M: One of the reforms you propose is a tribunal of nine judges for the executive branch that would field challenges from Congress to the president’s actions. Wouldn’t this conflict with the Supreme Court?

BA: No. The Supreme Court has said that there are large areas of dispute between Congress and the president that it’s not going to resolve: It’s going to leave it up to the political branches. Fine. I say, let’s do that. But how are the political branches supposed to resolve these problems? Right now, we have an increasing number of highly skilled lawyers in the White House Counsel’s office and in the Office of Legal Counsel. We didn’t have these people before. Before Richard Nixon, there was no trained legal staff in the White House. Now there are 40 lawyers, 25 of them writing very polished opinions. What happens in an emergency is that these lawyers in the White House staff and the Office of Legal Counsel have powerful incentives to write very learned opinions saying the president can do whatever he wants. This is what the John Yoo torture memo represents. I’m not interested in John Yoo as a person; I’m interested in this institutional arrangement which has developed over the last 30 or 40 years which makes John Yoos not only possible but almost inevitable in times of emergency. They will write opinions saying that for one learned reason or other, it’s perfectly all right for the president to act in an extreme way, sweeping up thousands or tens of thousands of people on suspicion.

M-M: Specifically, Yoo argued that the Geneva Conventions did not apply to prisoners captured during the war in Afghanistan and detained at Guantánamo. Congress later passed an anti-torture law, but Bush issued a signing statement reserving his right to waive restrictions in it.

BA: Congress passes a statute banning torture: No problem, it’s interpreted out of existence by the lawyers in the executive branch. They’re issuing opinions that have the force of law. This is a very bad system. Indeed, one of the very small number of things the Constitution says about the president’s job is that the president shall take care that the laws be faithfully executed. I say, let the lawyers for the president be lawyers for the president. But we should create a new “supreme executive tribunal” of nine judges with 12-year terms. When Congress says, “We passed a statute that says ‘Don’t torture,’ and we have reason to believe torturing is going on,” then there will be an argument before this tribunal. And it will try to make a judicious decision and not wait for a large number of years before the Supreme Court says, “Oh, it’s a political question, we’re not going to decide this.”

M-M: In your book, you say that public opinion polls have become a “privatized voting system” that could be manipulated by an extremist in the White House. How so?

BA: The American democratic system is evolving. Public opinion poll numbers are actually important in assessing the president’s legitimacy. This has happened very slowly over the last 20 years or so. It really matters if Obama is at 70 percent in the polls or 20 percent in the polls. Before the 1930s, there were no polls. A person was elected president for four years and he had the legitimacy of his election. Now, when he’s at 70 percent in the polls (and Congress is almost invariably 30 or 40 points lower), the president can say, “Look, there’s an emergency. We have to take unilateral steps. We can’t wait for Congress. The American people support me, and, I tell you Americans, we cannot tolerate 12 million illegal aliens amongst us, we must take action now. Congress is refusing to take action — I am.”

The president who is high in the polls can take an illegal action in the name of solving an emergency. This dynamic will become especially exacerbated if we have, as we may well have, a deadlock in Congress. The more Congress is deadlocked and incapable of responding to the nation’s problems, the more a president will be tempted to take unilateral action; and if he’s high in the polls, his democratic legitimacy will carry him very far. So, this is a fascinating and troubling dynamic.

M-M: You also deplore the unraveling of professional journalism in the Internet age, and you’ve suggested that a national endowment for journalism be set up with several billion dollars to fund investigative reporting. You don’t think bloggers can be good watchdogs?

BA: Sure, they can help, but they’re not going to substitute for professional journalism. In order to really follow what’s happening in the Defense Department, you have to have people who have connections, who are reporting on the department day after day, week after week, actually learning things, filtering them and being capable of writing for a general public. What we have in the blogosphere is a group of policy wonks who don’t know how to write for the general public putting their things on the Internet, and nobody reads them — and, on the other hand, people with strong opinions who don’t know very much.

M-M: In your book, you offer a number of new checks and balances on presidential power, including a national holiday called Deliberation Day, two weeks before a presidential election, to better inform the public about the issues. But you’re not optimistic about the country’s prospects.

BA: This is why the book is called The Decline and Fall of the American Republic. I’m not talking about our relative decline in the world. That’s the American empire. We’re not declining that fast. We’re still a big power and will be a big power for a long time. That’s not what I’m worried about. Nor am I worried about the moral decline of the American people. I’m worried about retaining a sense that we Americans are in control of our institutions. And the reason for my pessimism is we can very easily imagine stories in which we have congressional gridlock, obstructionism, do-nothingism — and presidential unilateralism — and another round, and another round. And with these structures of extremism, centralization, politicized military, a very aggressive legal presence of the presidency and the use of media manipulation, without any check, it’s easy, unfortunately, to see a rather grim future for the republic.

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Melinda Burns
Former Miller-McCune staff writer Melinda Burns was previously a senior writer for the Santa Barbara News-Press, covering immigration, urban planning, science, and the environment.

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