This first appeared at Rutherford.org on October 12 and is reprinted with permission.
“When the president does it, that means that it is not illegal.”—Richard Nixon
Presidents don’t give up power.
Executive orders don’t expire at the end of each presidential term.
And every successive occupant of the Oval Office since George Washington, who issued the first executive order, has expanded the reach and power of the presidency.
The Constitution invests the president with very specific, limited powers: to serve as Commander in Chief of the military, grant pardons, make treaties (with the approval of Congress), appoint ambassadors and federal judges (again with Congress’ blessing) and veto legislation.
In recent years, however, American presidents have anointed themselves with the power to wage war, unilaterally kill Americans, torture prisoners, strip citizens of their rights, arrest and detain citizens indefinitely, carry out warrantless spying on Americans and erect their own secretive, shadow government.
These are the powers that will be inherited by the next heir to the throne, and it won’t make a difference whether it’s President Trump or a President Clinton occupying the Oval Office.
The powers amassed by each successive president through the negligence of Congress and the courts — powers which add up to a toolbox of terror for an imperial ruler — empower whomever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.
Consider some of the presidential powers — which have been acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and can be activated by any sitting president — that have allowed past presidents to operate above the law and beyond the reach of the Constitution.
The power to kill. As The New York Times concluded, “President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.” Obama’s kill lists — signature drone strikes handpicked by the president — have been justified by the Justice Department as lawful because they are subject to internal deliberations by the executive branch. “In other words,” writes Amy Davidson for The New Yorker, “it’s due process if the president thinks about it.”
The power to wage war. Ever since Congress granted George W. Bush the authorization to use military force in the wake of 9/11, the United States has been in a state of endless war without Congressever having declared one. Having pledged to end Bush’s wars, Barack Obama has extended them. As The New York Times notes, “He has now been at war longer than Mr. Bush, or any other American president… he will leave behind an improbable legacy as the only president in American history to serve two complete terms with the nation at war.” More than that, as The Atlantic makes clear, “Obama is inaugurating an era of unbridled war-making by the commander in chief, without any of the checks and balances contemplated by the American constitutional system.”
The power to torture. Despite the fact that the Bush Administration’s use of waterboarding as a torture tactic was soundly criticized by Obama, the Obama Administration refused to hold anyone accountable for participating in the rendition and torture programs. In the absence of any finding of criminality, the authorization of such torture tactics remain part of the president’s domain — should he or she ever choose to revive it.
The power to spy on American citizens. In the wake of the 9/11 terror attacks, President Bush secretly authorized the National Security Agency to carry out surveillance on Americans’ phone calls and emails. The Bush Administration claimed that the Constitution gives the president inherent powers to protect national security. The covert surveillance has continued under Obama.
The power to indefinitely detain American citizens. In 1942, President Franklin D. Roosevelt issued an executive order requiring that all Japanese-Americans be held in internment camps. While that order was later rescinded, the U.S. Supreme Court declared it to be constitutional. The ruling has never been overturned. Pointing out that such blatantly illegal detentions could happen again — with the blessing of the courts — Justice Scalia warned, “In times of war, the laws fall silent.” In fact, each National Defense Authorization Act enacted since 2012 has included a provision that permits the military to detain individuals — including Americans citizens — indefinitelywithout trial.
The power to strip American citizens of their constitutional rights. The Bush Administration claimed it could strip American citizens of their constitutional rights, imprison them indefinitely and deny them legal representation simply by labeling them as enemy combatants. While the Obama Administration jettisoned the use of the term “enemy combatant,” it has persisted in defending thepresident’s unilateral and global right to detain anyone suspected of supporting terrorist activities.
The power to secretly rewrite or sidestep the laws of the country. Secret courts, secret orders and secret budgets have become standard operating procedure for presidential administrations in recent years. A good case in point is Presidential Policy Directive 20, a secret order signed by President Obama as a means of thwarting cyber attacks. Based on what little information was leaked to the press about the clandestine directive, it appears that the president essentially put the military in charge of warding off a possible cyber attack. A FOIA request by the Electronic Privacy Information Center (EPIC) seeking more details on the directive was allegedly denied because doing so could cause “exceptionally grave damage to the national security.” However, EPIC believes the order allows for military deployment within the United States, including the ability to shut off communications with the outside world if the military believes it is necessary.
The power to transform the police into extensions of the military and indirectly institute martial law. What began in the 1960s as a war on drugs transitioned into an all-out campaign to transform America’s police forces into extensions of the military. Every successive president since Nixon has added to the police’s arsenal, tactics and authority. In fact, the Obama Administration hasaccelerated police militarization by distributing military weapons and equipment to police and incentivizing SWAT team raids and heavy-handed police tactics through the use of federal grants and asset forfeiture schemes.
The power to command the largest military and intelligence capabilities in the world and, in turn, “wag the dog.” As law professor William P. Marshall points out:
In his roles as Commander-in-Chief and head of the Executive Branch, the president directly controls the most powerful military in the world and directs clandestine agencies such as the Central Intelligence Agency and National Security Agency. That control provides the president with immensely effective, non-transparent capabilities to further his political agenda and/or diminish the political abilities of his opponents. Whether a president would cynically use such power solely for his political advantage has, of course, been the subject of political thrillers and the occasional political attack. President Clinton, for one, was accused of ordering the bombing of terrorist bases in Afghanistan to distract the nation from the Lewinsky scandal, and President Nixon purportedly used the Federal Bureau of Investigation to investigate his political enemies. But regardless whether such abuses actually occurred, there is no doubt that control of covert agencies provides ample opportunity for political mischief, particularly since the inherently secretive nature of these agencies means their actions often are hidden from public view. And as the capabilities of these agencies increase through technological advances in surveillance and other methods of investigation, so does the power of the president.
Thus, it doesn’t matter what the pundits predict, the candidates promise and the people decree.
It doesn’t even matter whether the people elect Trump or Clinton. After all, politicians sing a different tune once elected. For instance, The Chicago Tribune editorial board observed that although Barack Obama opposed the imperial tendencies of George W. Bush, once in office, Obama “wound up behaving as if he had a scepter and throne.”
What matters is that the damage has already been done.
As Professor Marshall explains, “every extraordinary use of power by one president expands the availability of executive branch power for use by future presidents.” Moreover, it doesn’t even matter whether other presidents have chosen not to take advantage of any particular power, because “it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.”
In other words, each successive president continues to add to his office’s list of extraordinary orders and directives, granting him- or herself near dictatorial powers.
So let’s not have any more talk of which candidate would be moredangerous with these powers.
The fact that any individual — or branch of government — is empowered to act like a dictator is danger enough.
This abuse of presidential powers has been going on for so long that it has become the norm and it will continue no matter which corporate puppet wins the election. The Constitution be damned.
The government of laws idealized by John Adams has fallen prey to a government of men.
As a result, we no longer have a system of checks and balances.
“The system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance,” concludes Marshall. “The implications of this are serious. The Framers designed a system of separation of powers to combat government excess and abuse and to curb incompetence. They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow. Unfortunately, however, power once taken is not easily surrendered.”
The solution is far from simple, but it’s time, as Marshall suggests, to recalibrate the balance of power. This will mean putting an end to the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements as a means of getting around Congress and the courts. It will mean that Americans will have to stop letting their politics blind them to government wrongdoing. And it will mean holding all three branches of government accountable to the Constitution (i.e., if they abuse their powers, vote them out of office).
Thus far, Congress, with little spine, less integrity and too busy running for re-election, has offered little attempt at oversight, enabling the president to ride roughshod over the Constitution. The media — the perfect accomplice in this stealthy, bloodless coup — continues to inundate us with the latest celebrity scandal, says virtually nothing about these burgeoning powers. All the while, most Americans continue to operate in blissful near-ignorance, unaware or uncaring that the republic is about to fall.
Yet as I point out in my book Battlefield America: The War on the American People, it will be “we the people” — not the president, the politicians, the corporate elite or the media — who will suffer the consequences when freedom falls and tyranny rises. They may justify violating our freedoms in the name of whatever phantom menace-of-the-month threatens “national security,” but we will always be the ones to pay the price.
— John W. Whitehead
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at amazon.com. Whitehead can be contacted atjohnw@rutherford.org. Publication Guidelines / Reprint Permission: John W. Whitehead’s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact staff@rutherford.org to obtain reprint permission.