Presidential Secrecy and the Law - Hardcover

Pallitto, Robert M.; Weaver, William G.

Hardcover

ISBN 10: 0801885825 ISBN 13: 9780801885822

Verlag: Johns Hopkins University Press, 2007

Inhaltsangabe

State secrets, warrantless investigations and wiretaps, signing statements, executive privilege-the executive branch wields many tools for secrecy. Since the middle of the twentieth century, presidents have used myriad tactics to expand and maintain a level of executive branch power unprecedented in this nation's history. Most people believe that some degree of governmental secrecy is necessary. But how much is too much? At what point does withholding information from Congress, the courts, and citizens abuse the public trust? How does the nation reclaim rights that have been controlled by one branch of government? With Presidential Secrecy and the Law, Robert M. Pallitto and William G. Weaver attempt to answer these questions by examining the history of executive branch efforts to consolidate power through information control. They find the nation's democracy damaged and its Constitution corrupted by staunch information suppression, a process accelerated when "black sites," "enemy combatants," and "ghost detainees" were added to the vernacular following the September 11, 2001, terror strikes. Tracing the current constitutional dilemma from the days of the imperial presidency to the unitary executive embraced by the administration of George W. Bush, Pallitto and Weaver reveal an alarming erosion of the balance of power. Presidential Secrecy and the Law will be the standard in presidential powers studies for years to come.

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Über die Autorin bzw. den Autor

Robert M. Pallitto is an assistant professor of political science at the University of Texas at El Paso.

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Presidential Secrecy and the Law

By ROBERT M. PALLITTO WILLIAM G. WEAVER

The Johns Hopkins University Press

Copyright © 2007 The Johns Hopkins University Press
All right reserved.
ISBN: 978-0-8018-8582-2

Contents

Acknowledgments.................................................................................................ixIntroduction: The Secret Presidency.............................................................................11 The Secret Presidency in Historical-Theoretical Perspective...................................................242 The Classified President......................................................................................453 State Secrets and Executive Power.............................................................................844 The Shadow President: The Attorney General, Executive Power, and the New Anti-Terror Laws.....................1215 The President and National Security Surveillance..............................................................1566 The New Executive Privilege...................................................................................193Conclusion: A Secret Presidency for the New Millennium?.........................................................217Notes...........................................................................................................227Index...........................................................................................................255

Chapter One

The Secret Presidency in HistoricalTheoretical Perspective

We depend now more than ever on the President's mind and temperament. -Richard Neustadt

Introduction: Individual-Centered and Institutional Approaches to Presidency Studies

A review of the scholarship on the presidency shows that much of the work can be classified in one of two ways: as studies of presidential character or as studies of the presidency as an institution. "Character" scholars focus on the traits of individual presidents, trying to make sense of events of a particular term in office with reference to the president's formative developmental experiences, social position, worldview, temperament, leadership style, and similar factors. The general idea is that individual-specific information is the key to understanding presidential politics. "Institution" scholars, by contrast, are more concerned with the office of the chief executive itself. What norms of political practice come with the office at a given time? Where does the presidency stand with regard to other political institutions? What powers (express or implied) are available to the officeholder? Is the power of the presidency increasing or decreasing? To begin this chapter on presidency studies, we introduce one well-known, representative work from each of these two approaches in order to provide parameters for the discussion to follow.

James David Barber's book The Presidential Character has become a classic of presidency studies, read even by presidents themselves. Written over many years, it includes predictions of presidential performance that Barber wrote as each new president from Richard Nixon to George H. W. Bush took office. Barber stakes out a clear position from the start, telling us that "who the President is at a given time can make a profound difference in the whole thrust and direction of national politics." Moreover, character analysis facilitates comparisons: "crucial differences can be anticipated by an understanding of a potential president's character, his world view, and his style."

Barber believes that presidential personality can be studied "as a dynamic package understandable in psychological terms" and that "the best way to predict a President's character, world view and style is to see how they were put together in the first place." By posing two questions, "(a) how active he is and (b) whether or not he gives the impression he enjoys his political life," Barber is able to construct a four-cell classificatory scheme by which each president is designated active or passive, positive or negative. Wilson, Hoover, and Lyndon Johnson, for example, are "active-negatives," working tremendously hard but often seeming not to enjoy it, while Truman, Kennedy, and Carter are "active-positives." Not surprisingly, there are but two "passive-negatives": Coolidge and Eisenhower, for such a combination would seem to self-select away from presidential aspirations. To arrive at these classifications, Barber examines biographical material for each presidential subject, and the results are illuminating: we see, for example, how tragic Hoover's early life was, how Kennedy was pushed to excel, and how Truman grew up with abundant parental affection.

Each individual then comes up against the trials of the job. As Barber puts it, "Presidential character resonates with the political situation the President faces." This interactivity between character and circumstances is crucial, for no one's political life is unalterably determined from childhood. Active-positive presidents Carter and Truman could fail: Carter made mistakes by dealing artlessly with Congress early on, and Truman's resoluteness led him to speak and act quickly without full consideration.

Predictions are just that, and in the case of Reagan, Barber predicts beforehand that Reagan might "leave the Constitution about as he found it and the nation, at peace" or, alternatively, that he might "have disaster thrust upon him."? The job of president is too multifaceted, and the national and international political landscape contains too many contingencies, so that it would be foolish to insist that we could know with certainty how anyone's presidential term will turn out. Nonetheless, applying the active-passive/positive-negative scheme gives Barber confidence about what the central struggles of a given president will be, at least internally. Consider, for example, what he says about the active-negative type:

Having experienced severe deprivations of self-esteem in childhood, the person develops a deep attachment to achievement as a way to wring from his environment a sense that he is worthy; progressively, this driving force is translated into a search for independent power over others, pursued with intense dedication, and justified idealistically. Whatever style brings success in domination is adopted and rigorously adhered to; but success does not produce joy-the person is frequently depressed-and therefore ever more striving is required.

This description fits Richard Nixon well, and Barber's presentation of Nixon's negativity and suspicion is one of the most powerful passages in the book. Again, what is crucial here is the way that Nixon fits into the active-negative type the author constructs. Personality shapes presidential behavior, and personality comes in a "dynamic package," which gives the observer material to construct a good prediction.

The Decline and Resurgence of Congress by James R. Sundquist examines the presidency from the institutional perspective, which contrasts sharply with Barber's character study approach. Interestingly, Sundquist's account pivots around the same presidency just described-Nixon's. The "nadir" of Congressional power relative to the presidency occurs at the end of Nixon's first term, and the level of Congress's power increases in the months following. Rather than personality, Sundquist is concerned about what was happening to the presidential office during that time and about what powers Congress was able to exercise in response. The institutional approach asks about the relative power of governmental institutions over time.

At the pivotal point of October 1972, the Nixon administration challenged Congress on budget matters and impoundment of funds and won. Two years later, Nixon was gone, and legislation was passed to redress several of his excesses. That legislation signals, in Sundquist's view, a resurgence of congressional power and a corresponding decline in the power of the executive. There had been other ebbs and flows of institutional power in the history of the American political system, so the events of 1972 through 1978 were simply a continuation of what Sundquist calls "the unending conflict" between the political branches. The picture that emerges here is one of a system that adjusts itself to threat and change, in which the power of Congress is understood in relative terms to the power of the president.

Scholars of political institutions examine forces that affect institutional behavior. In the context of American politics, party organizations are one force that is likely to exert influence on institutions. As the strength of political parties declined after midcentury, though, the strength of the presidency grew. Sundquist explains that "the bonds of party ... engender impulses toward harmony to offset the natural tendencies toward dissension." The stronger the bonds of party, the more constrained the president will be when he shares the same party identification with the majority party in Congress. This feature of institutional behavior leads one to expect that in a period of party decline, the executive will seek to consolidate power because he feels the absence of party-organizational constraints.

In view of this dynamic, Sundquist asks whether a "responsible party" model would be helpful in stabilizing congress-president relations, and he suggests some reforms that would give the party more influence over those relations. Political parties, then, play a part in narratives of institutions, and their influence transcends individual presidencies, following longer-term trends. Of course, one could argue that weak parties make the character traits of individual presidents more important by giving presidents more room to exert their influence. Our purpose here, though, is simply to give a sense of what comes into focus when one uses an institutional or an individual lens to study the presidency. In the institutional paradigm, one sees a play of forces that shape the office, and any snapshot in time shows the temporary state of those forces. To look at a particular presidency this way is to see how opportunities are structured in that political moment.

In this introduction to presidency studies, we briefly mention a theory that has been discussed frequently during the George W. Bush administration, because it allows for vast institutional power backed by constitutional sanction. The "unitary executive" has been mentioned in the confirmation hearing of a Supreme Court nominee, in the press, and even in a Supreme Court opinion. Its proponents consistently suggest that certain presidential emergency powers are unreviewable and may be exercised without prior consent of the other branches. John Yoo has argued that "the Constitution makes it clear that the process for conducting military hostilities is different from other government decision-making." War powers are limited only by "congressional appropriation and control over domestic legislation." And they should be construed broadly: "any ambiguities in the allocation of power that is executive in nature-such as the power to conduct military hostilities-must be resolved in favor of the executive branch." To accept and implement the unitary executive is to change the institution significantly, and we mention the theory here because it is an example of an institutional change that would structure the office differently for future presidents, regardless of their individual characteristics. It would provide greater efficiency for the executive at the expense of balanced power.

A Closer Look at Presidency Studies: Neustadt, Lowi, and Skowronek

Having discussed briefly the broad division of presidency studies between the character and institution approaches, we can now look more closely at several important studies with a better understanding of the role of individual and institutional factors in those works. Of course, few commentators take an absolute position on the importance of individual and institutional factors; most, including those who follow here, are more nuanced, emphasizing one but not entirely discounting the other.

Modern scholarship on presidential power tells multiple stories at once. Among them are the strengthening of ties between the White House and the people and the presidency's rise in importance as an institution to the point where it eclipses party attachments. To say that the president executes the people's will more directly and more evectively than the Congress would be an oversimplification, and yet there is a decided emphasis, in contemporary scholarship, on the president's ability to go "over the heads" of legislature and party and appeal directly to the voters.

Stephen Skowronek argues that presidents make politics within cycles of institutional order, and his work reminds us that certain typologies are inevitable in this area: for instance, the stance of a president vis--vis his predecessor is something that each presidential administration must negotiate. Every president must continue or oppose the order that preceded him; that positioning, in turn, creates the conditions under which the politics of his presidency will be made. As we argue throughout this book, however, some of the changes in the presidency we have seen recently, produced when historical events and individual actions arose against the institutional framework of the modern (or postmodern) presidency, seem to take us into an entirely new realm of political power relations. Recent presidential action threatens to break the constitutional strictures that have held the presidency in a dynamic yet largely balanced relationship with the other branches of American government. For example, changes that have been institutionalized by the Bush administration, especially those implemented following the unprecedented events of 9/11, reorder the institution in ways never before seen. Thus, while the existing scholarship is important to understanding the contemporary presidency, we are in many ways on new ground with the retreat of party influence, the advance of a permanent or semi-permanent "war" presidency, and a judiciary clearly sympathetic to the expansion of presidential power.

We begin this section with a discussion of Richard Neustadt's landmark work on the presidency. Presidential Power treats the presidency generally rather than with respect to secrecy or executive privilege alone-in fact, he mentions executive privilege only once in the book. Neustadt sees the modern presidency as a sharp break with the past. He depicts a gentlemanly president who operates according to shared rules of presidential conduct and who resolves problems of executive branch management and interbranch conflict through diplomacy and tact. It is impossible to escape the influence of Neustadt's work, which has shaped the field of presidential studies for five decades. But as we indicated in the introduction, we hold that the gentlemanly president has been eclipsed by a presidency that relies on a stronger institutional framework. These institutional features enable presidents to accomplish more and render the rules of Neustadt's bargaining paradigm less applicable, if not completely obsolete. In our evaluation, it is more useful to study the increased institutional capabilities first and only then to consider the relevance of any surviving rules and norms of presidential conduct.

Theodore Lowi's work shows the plebiscitary character of the modern presidency, focusing more than Neustadt on the rather direct and unmediated relationship between the presidency and the American people. So while Neustadt is concerned with the way the president manages governmental conflict, Lowi sees the president's relationship with the people as paramount: the president replaces the two major political parties as the object of the voters' affective attachment. Once again, though, the institutional changes wrought over the past three decades complicate Lowi's story of the plebiscitary presidency, and we explore that tension here.

Stephen Skowronek's work on the presidency, which is historicist in orientation, fits our investigation best. Skowronek manages to draw parallels between presidential administrations separated by a century while keeping in sight the historical trends that change the institution over time, such as the rise of mass media. He maintains this dual focus by measuring the recurring patterns of presidential leadership in political time and American historical events in secular time. He argues that presidents make politics within cycles of institutional order and that certain typologies are useful in highlighting those cycles: for instance, the stance of a president vis--vis his predecessor. Every president must oppose or continue the order that preceded him, and that positioning creates the conditions under which the politics of his presidency will be made. It is easy to see the increased secrecy practiced by the Bush administration, for example, as part of Bush's repudiation of the preceding Democratic regime of Bill Clinton.

Despite our affinity with Skowronek's methodology, however, we part company with him to some extent when we emphasize the lasting institutional changes threatened by the secrecy initiatives of various recent presidents. The presidency in the new millennium appears changed in ways that will be difficult to reverse; although there is unquestionably a strong historical orientation in Skowronek's work, we focus even more than he does on the break with established patterns of institutional power dynamics. Thus, although we follow Skowronek more than we rely on the other leading contemporary scholars of the presidency, we see the need for a shift in emphasis as we survey the politics of secrecy generally in this chapter and executive privilege specifically in chapter 6.

(Continues...)

Excerpted from Presidential Secrecy and the Lawby ROBERT M. PALLITTO WILLIAM G. WEAVER Copyright © 2007 by The Johns Hopkins University Press. Excerpted by permission.
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Details zur Ausgabe

• Verlag: Johns Hopkins University Press
• Erscheinungsdatum: 2007
• Sprache: Englisch
• ISBN 10: 0801885825
• ISBN 13: 9780801885822
• Einband: Tapa dura
• Anzahl der Seiten: 276
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Nicht verfügbar