« Theater of the Absurd | Main | Good News for Bobcats Fans »

Clinton and Executive Power

23 Oct 2007 03:33 pm

Reading the Clinton/Tomasky interview, Greg Sargent rather enthusiastically notes that in it "she vows as President to conduct a systematic review of the ways in which the Bush administration has hoarded executive power -- a review, she claims, that could actually cause her to relinquis some of those powers." David Kurtz follows through on the TPM homepage: "Hillary Clinton promises a systematic review of the Bush administration's executive power grab if elected--with an eye toward relinquishing some of those powers."

I think this isn't the best reading of what happened. Mike shrewdly asked her "what specific powers might you relinquish as president, or renegotiate with Congress - for example the power to declare a US citizen an enemy combatant?" and Clinton . . . didn't come up with anything. Instead, she vaguely replied:

Well, I think it is clear that the power grab undertaken by the Bush-Cheney administration has gone much further than any other president and has been sustained for longer. Other presidents, like Lincoln, have had to take on extraordinary powers but would later go to the Congress for either ratification or rejection. But when you take the view that they're not extraordinary powers, but they're inherent powers that reside in the office and therefore you have neither obligation to request permission nor to ask for ratification, we're in a new territory here. And I think that I'm gonna have to review everything they've done because I've been on the receiving end of that. There were a lot of actions which they took that were clearly beyond any power the Congress would have granted or that in my view that was inherent in the constitution. There were other actions they've taken which could have obtained congressional authorization but they deliberately chose not to pursue it as a matter of principle.

Basically, she's telling liberals she'll roll back executive power but she's not committing herself to doing anything in particular. Basically, as Charlie Savage wrote for our October issue, I wouldn't count on any future administration voluntarily relinquishing the powers Bush has seized. Maybe some future congress will take power back, but people don't do that kind of thing voluntarily. That's what Clinton's telling us.

Share This

Comments (37)

To be fair, my recollection is that her husband un-secreted many, many more documents than his predecessors as one of his first acts in office. Same area of discussion, good instincts. More than that you weren't going to get anyway.

And I think that I'm gonna have to review everything they've done because I've been on the receiving end of that.

Once again, the Clinton dodge: "We must think more about X" rather than "I've thought about X, and here's my judgment on what should be done."

An alert Congress, jealous of its powers, would have impeached Bush around 2002.

Weak, cowardly men.

prediction: the Dems Congress will impeach Hillary, for using the powers she will inherit from GWB, on Feb 9th, 2010.

I'm gonna have to review everything they've done

Sounds kind of like "we should have a bipartisan commission"...

But, yes, Clinton's been in office for all of Bush's term. Certainly she is aware of what executive powers Bush has claimed.

Let's see what Obama and Edwards answer to the same question, eh?

Certainly she is aware of what executive powers Bush has claimed.

Is that clear? Aren't there potentially claimed executive powers that could be used and yet remain secret?

I suspect that a new Clinton Administration really would review the current practices of the Bush Adminstration and discontinue those practices that it deems legally or politically unsustainable.

Bear in mind, Clinton's party would never give her the blank check the Republicans gave Bush. Democrats will turn on her right away and Republicans will be happy to jump on board to create veto-proof majorities. It's also important to remember that Bush is running out the clock on a lot of issues (like refusing to honor subpoenas) that simply have not been adjudicated. The clock will reset when the next President comes in, and that President will need to decide if the brazen, often ludicrous legal arguments put forth by the Bush Administration are really worth sustaining.

I know Cheney and friends think they have infinitely expanded the power of the president, but they have dodged the courts whenever possible. On torture and eavesdropping the Administration got Congress to acquiesce, and as you say, Clinton is unlikely to give up these powers without a fight. In terms of expanding the inherant constitutional authority of the Executive Branch, however, the Administration has chosen to dodge the courts. Thus, the Administration's legal claims of inherant authority are pretty much untested.

President Hillary might continue to make Bush's legal arguments for unlimited executive authority...or she might realize these arguments are likely to lose in court, and lower her expectations a bit.

True enough, SCMT. Yet there are plenty of executive power grabs that are public that she could state whether she will continue. Maybe she could take a stand on the public powers Bush has claimed and say that she'd review the secret powers when she gets into office.

Both the question and the answer imply that the president actually has these powers.

Just because president Bush declared himself a unitary executive doesn't make it so. He's had de-facto power because Congress has failed to rebuke him for his excesses and has more often enabled his delusions.

Also, I haven't followed the Democrat nomination race that closely, but I'm surprised that the candidates haven't been asked about this before. I mean, was there no question at any of the debates like "will you promise to either charge everyone at Gitmo under normal criminal laws or let them go"? Or, "will you promise not to issue any signing statements contradicting the text of a bill you are signing into law"? Or, "will you promise to get a warrant for every person you eavesdrop on"?

That said, this is why it's important for Congress and the Courts to reject the assertion of presidential privelege. They need to make it clear that George Bush was wrong in his reading of presidential authority.

No future president can do it, no matter how humble. Allowing the next president to negotiate less authority implies that future presidents can demand the authority back.

Any of you waiting for the magical year of 2008 to fix the problem should keep that in mind.

This is all a little a silly of a piece with demands that candidates definitively rule out various foreign policy options in advance. Why on earth would a candidate pledge to take (or not take) specific actions without having all the facts before them? Why would we want them to? If you don't trust Clinton to carefully review the current administrations assertions of executive power in good faith and reverse those that are without merit, then vote for someone you do trust to do that. She may or may not be worthy of trust, but the fact that she won't commit in advance to any particular action is evidence that she is not, in and of itself, evidence that she won't do that. It's evidence that she's not an idiot.

I think you haven't been looking very hard, Al. The Democratic candidates are all on record for closing Guantanamo and putting them into the established legal system. Dodd is about to filibuster the latest FISA legislation (with Biden's support), Clinton and Obama are on the record voting against it in the last round.

Here's a sample of their views on Guantanamo (all made during the debate in NH):

EDWARDS: But what this global war on terror bumper sticker -- political slogan, that's all it is, all it's ever been -- was intended to do was for George Bush to use it to justify everything he does: the ongoing war in Iraq, Guantanamo, Abu Ghraib, spying on Americans, torture.

None of those things are OK.

OBAMA: ...our legitimacy is reduced when we've got a Guantanamo that is open, when we suspend habeas corpus. Those kinds of things erode our moral claims that we are acting on behalf of broader universal principles, and that's one of the reasons why those kinds of issues are so important.

RICHARDSON: I would as first day as president, I would shut down Guantanamo. I would shut down Abu Ghraib and secret prisons. That is the moral authority that we don't have.

Why on earth would a candidate pledge to take (or not take) specific actions without having all the facts before them?

We have the facts before us. The president has asserted that he has authority outside the law during wartime. This is simply not true. We are a nation of laws and everyone is subject to them.

I don't see anything in those quotes about charging the Gitmo prisoners under normal criminal law, Jinchi. But I assume that you are correct, as you've likely been following the Dem candidates closer than I have.

Also, someone should inform Bill Richardson that Abu Ghraib was shut down over a year ago.

The candidates have different views, but they generally want the detainees put into the military justice system or the federal one:

From CFR: http://www.cfr.org/publication/13816/

Biden says the prisoners should be moved to the maximum security military prison at Fort Leavenworth, Kansas. He has cosponsored legislation that would release all Guantanamo prisoners who have not been charged. This would mean releasing nearly all the prisoners.

Dodd and Clinton are cosponsors of Sen. Dianne Feinstein’s (D-CA) bill to close Guantanamo and transfer the prisoners either to their home countries, to an international legal tribunal, or to a civilian or military facility in the United States. The bill also mandates that the prisoners must be charged formally if they are brought to the United States.

Obama says the United States should have “developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.” Unlike his Democratic colleauges, however, Obama does agree that military courts rather than federal judges should be charged with trying the detainees.

Kucinich cosigned with 145 other members of the House a letter urging President Bush to close Guantanamo and transfer the prisoners (McClatchy) to military detention facilities in the United States.

'Weak, cowardly men."

Lets not be sexist, weak cowardly women as well.

"Also, someone should inform Bill Richardson that Abu Ghraib was shut down over a year ago."

Are you positive, Al?

I'm as sure as Wikipedia can be, rihilism.

Here's a test: Imagine that Obama, Dodd, Edwards, Biden or Richardson had given word-for-word the response to the question that HRC did. I'll wait.

OK. Now are you remotely as suspicious about his motives and sincerity? Really?

Look, I have more in common ideologically with all of HRC's main Democratic rivals than I do with her, and nothing would please me more than for one of them to become President. But I don't doubt that a huge part of what drives Hillary's calculating and centrist reputation is her up-close and direct experience of what disasters result from lack of discipline and from an insistence on ideological purity: namely, the last eight years. So go ahead and keep reinforcing that she's-really-a-ruthless-power-hungry-bitch meme. Criticizing our front-runner has worked so well for us before, you know.

"I wouldn't count on any future administration voluntarily relinquishing the powers Bush has seized. Maybe some future congress will take power back, but people don't do that kind of thing voluntarily."

*Maybe*? All it's going to take for Republicans to (re)discover their faith in small-government principles (note: some restrictions may apply) will be a Democratic president, be it Hillary or anyone else.

The problem, for fans of the actual rule of law, will be distinguishing the effective pattern from IOKIYAR, which seems to be the rule from the last fifteen years.

Oh, so now we're going to wait for a president to give back power at some point? In lieu of Congress doing it, like it's supposed to?

Pathetic.

And doesn't it really mean that said president retains any power given up anyway? Because if it takes the president to give up power, then it seems to me that the president can also take it back when s/he wants to. Congress obviously has no role in either case.

Did I already say pathetic? Yes I did.

If Hillary thinks we need a "review," that would imply that there's a good deal more to Bush's seizure of power than has already been exposed. Good to know.

Like other commenters, I don't see a need for review. Don't we know enough already?

Both sides have good reason to want to avoid court review of their various turf disputes. Obviously no one knows how the Supreme Court is going to decide most of these questions. The court might hold that some of them are political questions for the other branches to hash out themselves. In that event, I wouldn't be surprised to see various members of congress rediscovering their fondness for impeachment when the next president Clinton comes to power. (I disagree with cleek that it will happen so soon.) I suspect the Republican cheerleaders in the media will make impeaching Hillary their number one goal (and obviously will repudiate their aversion to criticizing a president sitting during wartime) commencing 1/20/2009.

Imagine that Obama, Dodd, Edwards, Biden or Richardson had given word-for-word the response to the question that HRC did.

Now are you remotely as suspicious about his motives and sincerity?

No. Because while Hillary is vague about relinquishing power, she has been very sympathetic to the idea of executive power, based on her experience as First Lady.

It was the basis of her support for the Iraq war vote among other things.

"I'm a strong believer in executive authority," Clinton said in a 2003 speech, recently quoted in The New Republic. "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority."

Those are the words of an opposition party Senator supporting broad powers for the president to act uninhibited by Congress. Do you imagine she'd be less inclined as the incumbent herself?

"If Hillary thinks we need a "review," that would imply that there's a good deal more to Bush's seizure of power than has already been exposed. Good to know."

-------

She has stated that belief explicitly...and repeatedly...on the campaign trail. Remember, the Bush administration has exactly been forthcoming with documentation requests. Clinton has said that she expects the next President will find things Bush has done that nobody had any idea about.

Hillary - Well, I think it is clear that the power grab undertaken by the Bush-Cheney administration has gone much further than any other president and has been sustained for longer. Other presidents, like Lincoln, have had to take on extraordinary powers but would later go to the Congress for either ratification or rejection.

Hillary is full of shit.

FDR was wiretapping 6 months before WWII started for us, secretly having US warships engage and sink Nazi U-Boats in Fall of 1941 with no Congressional authorization. With a swipe of a pen, he put everyone in Alaska, Puget Sound Naval District, and Hawaii under martial law. When West Coast politicans objected to plans for martial law there, with another stroke of ink, he relocated all enemy alien Japs, their underage citizen dependents. (100,000) plus 15,000 Nisei above age 18.
None of that went to Congress. He managed, with CHurchill, over 1.4 million German and Italian POWs. None had a lawyer, none were charged with anything for the duration except acts in camps (a couple of German POWs were hanged or went to Leavenworth for crimes against dellow POWs.)

Lincoln was even more overreaching. Many of his moves were not sent to Congress until he had their rubberstamp ready. Many of his other moves, like shutting down presses owned by Copperheads or ordering troops to fire on Draft protestors - even using Naval cannon on them.

Unlike today, Lincoln, not the Courts, was the final appeal for execution warrants on soldiers or Native Americans. He signed hundreds of death warrants.

"Biden says the prisoners should be moved to the maximum security military prison at Fort Leavenworth, Kansas."

Yeah, they're gonna love it there...

Note: I'm not talking about the Federal Penitentiary, and neither is Biden.

But if anybody thinks a change of LOCATION is going to matter, well, hey, send me money while you're at it, you're that dumb.

Fort Leavenworth and Guantanamo are run by the same guys, folks. Just basing Guantanamo outside the US for some cute legal tricks wasn't the cause of what happened at Guantanamo.

Ford, of course, would like to see Bush signing death warrants for everybody here...

As for Hillary, once again, it's "I don't know what I'm talking about, and I don't want you to know what I'd really do, but I'm smarter than the Republican morons, so I'll bullshit you into a coma now."

As Andrew Bacevich points out in his book "The aim of the party out of power is not to cut the presidency down to size but to seize it, not to reduce the prerogatives of the executive branch but to regain them."

Don't expect Mrs. Clinton to do much. Everything she has done and said says she is very much an establishment candidate, there may be a few tweaks here and there on the edges, but no substantial difference will emanate from her on how the US does politics domestically and internationally.

Matt

you draw an inference here that is not warranted. That her reserve in not naming things is a sign of wanting to keep such power; it seems more likely that as an lawyer she knows what a difficult legal conumdrum these abuses of power matters really are. This is one case that not being a lawyer leaves one not understanding the fundamental issue.

I have asked many legal schaolars, lawyers and those very familiar with constittuional issues about this.

When I bring up various manifestations of the arrogation of power by the executive branch, and in particular Presidiential Signing statements that Bush issued when he signed bills .... some statements severly undercuttting the actual import and language of the statute passed by Congress, they all seem to have doubts that they are rescindable --- especially in perpetuity ----past the term of the President who issues something ---X. And they seem not to know what X might yet be.

Executive orders can be issued but they may only exist for the term of the presiddent who issued them. They can all be reversed by another president. Congress may or may not have the ability to pass bills, resolutions etc. denying the import of some signing statements. There may be other ways to reformulate some of the signing statements and reissue them somehow.

The problem is once it enters the historical, legal, legislative, executive and judicial record it's there. The next presidient, who's a Democrat, may not use them; however the next Republican one can lean back into the past to resurrect these heinous actions. But the entire panoply of these arrogations of power may be like Dracula ---they could come back from the undead ---unless a mechanism(s) could be found --- to permanently kill them. Even liberal legal scholars seem not to know how to do that yet.

I am not much of a legal scholar, just a small-town practitioner, but the solution seems obvious. Hillary, or more properly, the next AG, can just decide to not challenge the standing of whoever comes forward to challenge a signing statement. The new AG can offer a tepid defense of the signing statement, and it will be up to the Supreme Court to manufacture some doctrine if they want to force the right to issue signing statements to the President.

I am pretty sure you could solicit some very powerful Amicus briefs denouncing the Bush-style statements. If we are lucky, the court will issue a ruling that will wipe out the legal authority of such statements. If the court decides to make an ass of itself, maybe a clear constitutional amendment could be put in place.

Not necessarily easy to do, but easy to know how to do.

"it seems more likely that as an lawyer she knows what a difficult legal conumdrum these abuses of power matters really are."

It seems more likely that as a lawyer she knows what a useful tool a "difficult legal conundrum" is for getting her way when she wants it.

This is automatic lawyer thinking: "It's unclear. How can I use it to my advantage?"

Except in this case, it isn't unclear. Plenty of scholars have weighed in that these ARE "abuses of power". Clinton herself SOUNDS like she is agreeing that these are "abuses of power".

So she should make a statement that she will request Congress to pass whatever legislation is necessary to remove the ability to abuse power in this fashion - however complicated that might turn out to be - and she should specifically list the abrogated powers that Bush provided for himself that she will never invoke.

That would probably still leave her a liar, but at least she would have taken an explicit stand.

This way, she's just bullshitting people.

And that's why people can't stand her. She's a bullshit artist.

"That's what Clinton's telling us."

Matt's telling us his objectivity is in a teapot orbiting Saturn.

He managed, with CHurchill, over 1.4 million German and Italian POWs. None had a lawyer, none were charged with anything for the duration except acts in camps (a couple of German POWs were hanged or went to Leavenworth for crimes against dellow POWs.)

Chris, this gets to the problem with GWOT detainees. We knew WWII was going to end when the Axis countries (or Allies if that had been the case) had been soundly militarily defeated and surrendered. When the Axis was defeated, there were war crimes tribunals and POW releases.

How do we know when a Global War on Terror is over? We don't. Therefore, it is a permanent state of war. In a permanent state of war, these old rules can't apply. We have to do something with these people under the rule of law.

It seems strange to me that everyone is focused on what Hillary and the other Democratic candidates would do with respect to the executive powers that Cheney has created for Bush. (See the Frontline documentary on Cheney.)

Is there any question regarding what a winning Republican candidate would do? I believe it is safe to say that only Ron Paul would role back these powers. Rudy would only grab even more. The Republicans in Congress would remain quiet, while the Democrats would whine and do nothing.

At least both Republicans and liberal Democrats in Congress would raise hell if Hillary or any of the other Democratic candidates who promised a role back failed to do so when elected. After all, only Republicans are entitled to have an Imperial President.

I can just hear them change their tune on the risk of the terrorist threat to the U.S. and accuse Hillery of fear-mongering.


Comments closed November 06, 2007.

Copyright © 2007 by The Atlantic Monthly Group. All rights reserved.