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Janine R.

Author, "Shadow Elite"
Posted: April 8, 2010 07:15 AM

Shadow Elite: Warrantless Wiretap Case &

Obama: Abuse of Executive Power?
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.


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

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

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.