His Word Was Law

by hilzoy

I was out and about last night, so I didn't get to write about the IG report (pdf). Luckily, publius covered the part about John Yoo; Anonymous Liberal is also very good on this. I want to focus on another bit. To set the stage: Comey and Goldsmith have been read into the surveillance program, and have discovered that Yoo's memos are both legally flawed and factually inaccurate, and that some parts of the program are probably illegal.

The programs need to be reauthorized by the President, and normally he does so after the Department of Justice certifies that they are legal. By now, Ashcroft is in the hospital, and Comey and Goldsmith refuse to provide this certification. For this reason, Bush sends Alberto Gonzales and Andrew Card to the hospital to try to get Ashcroft to sign off on the reauthorization, which he refuses to do. So:

"On the morning of March 11, 2004, with the Presidential authorization set to expire, the President signed a new authorization for the PSP. [Ed. note: the Presidential Surveillance Programs.] In a departure from the past practice of having the Attorney General certify the authorization as to form and legality, the March 11 authorization was certified by White House counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President's exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 authorization. (...) 

At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President's determinations."

'The President had made an interpretation of law'. Think about that. President Bush is not a lawyer. He has no expertise on this matter. Commanding the DoJ to accept his word about what the law is is as crazy as commanding the Environmental Protection Agency to accept his determination that some power plant does not, in fact, pollute, or commanding the FDA to accept his determination that some drug is safe. (Or, alternately, to take his word for it that that power plant or drug is not a "power plant" or "drug" within the meaning of the relevant statutes, and thus that they don't need to make any determinations about it.)

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

This would be less awful had the President recognized any obligation to inform the Congress about his novel interpretation of the law. In that case, they could have weighed in on the matter, and passed a new law. More importantly, the President's actions would have been open to public scrutiny: if he said "the law means what I say it does!", and Congress passed a new law that was absolutely unequivocal, he could of course "interpret" that law as well, but it would be clear to the public what he was doing. 

The fact that he was acting in secret prevented that. President Bush was asserting a completely novel power, and no one outside the Executive Branch knew. That should terrify us.

Luckily, some people in his administration had principles. Comey and Goldsmith threatened to resign. Mueller refused to let the FBI participate without DoJ approval, and threatened to resign if he were ordered to participate anyways. The President met separately with Comey and Mueller, and suddenly

everything changed:

"On the morning of March 12, 2004, Comey decided not to direct the FBI to cease cooperating with the NSA in conjunction with the program. Comey's decision is documented in a one page memorandum from Goldsmith to Comey in which Goldsmith explained that the President, as Commander in Chief and Chief Executive with the Constitutional Duty to "take care that the laws are faithfully executed", made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of Attorney General."

On March 16 Comey advised the President that some activities under the PSP were illegal and should be scrapped or changed. On March 17, the President did so.

It's hard not to conclude that Comey, Goldsmith, and/or Mueller cut a deal with the President. They were willing to resign rather than accept the President's "interpretation" of the law one day; the next, they did a complete about face, quickly followed up with their opinions about which aspects of the programs were illegal, and those aspects were immediately brought into line with their interpretation of the law. 

But I think it's profoundly dangerous to have, on the record, a statement that the President's interpretation of the law is binding on the Executive Branch. The President does have an obligation to "take care that the laws are faithfully executed". I can imagine cases in which a President with no legal training might go against the DoJ and still fulfill that obligation (e.g., if the DoJ were wholly corrupt.) This is not one of them. 

The fact that the President was willing to defy the Department of Justice on a question on which he had no expertise shows that he was not taking his obligation seriously. Going along with the idea that even in a case like this, he has the authority not just to set policy but to decide what the law is, and to do so in secret, without allowing for any checks and balances, is antithetical to our system of government.

I'm glad Comey, Goldsmith, and Mueller managed to stop those parts of the PSP that they believed were illegal. But they should not have played along with the fiction that the President gets to say what the law is. In our system, the President is not a dictator, and public servants should not pretend that he is.

Comments

[Ben Alpers]

But I think it's profoundly dangerous to have, on the record, a statement that the President's interpretation of the law is binding on the Executive Branch.

I agree 100%, hilzoy. However, it would be interesting to know what the Obama administration's position on this issue is. Given their track record so far, I wouldn't be a bit surprised if they agree with Gonzales and Bush.

[publius]

good post

[bob mcmanus]

In our system, the President is not a dictator, and public servants should not pretend that he is.

House Overwhelmingly Rebukes Obama Singing Statement ...The Hill, 7/09/09

Obama, in a statement made as he signed the bill, said that he would ignore the conditions.

They would "interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions," Obama said in the signing statement.

Senior Democrats and Republicans railed against the notion that the president could ignore a law they had passed and he had signed.

[cleek]

House Overwhelmingly Rebukes Obama Singing Statement

i'll admit i don't know all the details here, so feel free to correct me....

but isn't it possible that there's a legitimate disagreement here about what one branch of the govt can compel another branch to do? in other words, was Congress trying to make the President do something that they had no authority to order ?

[Ben Alpers]

I also have a problem with the President issuing singing statements.

We didn't elect Rex Harrison president!

[bob mcmanus]

...was Congress trying to make the President do something that they had no authority to order ?

Sure. On the one side Obama, Cheney, GWB, Yoo, Addington. On the other side 429 Congresspersons.

You are free to think it best practice to give the Executive Branch the benefit of the doubt in these disputes.

[novakant]

Reading Glenn Greenwald over the past couple of months has convinced me that Obama is not much better, and potentially even worse, than the Bush administration as far as their interpretation of the law is concerned.

[bob mcmanus]

Okay, if you read the Hill article Congress is threatening to withhold funds that Obama may promise nations if Obama doesn't follow their restrictions. Obama is certainly claiming that the restrictions impinge on the Executive Branch perogative to negotiate treaties, just as Bush claimed that Congress could not restrict the means Bush used to prosecute a war and defend the country. AFAIK, Bush's arguments are still in court, so certainly the competing claims are arguable.

This is another perspective on the "rule of law," that Congress can pass a law telling Obama to touch his toes every day at 3 o'clock, and Obama can tell Congress to fly a kite, ain't gonna. At that point Congress can impeach or whatever.

This is "Rule of Law" as a matter of pure power relations, without respect or reverence for law. There are many, perhaps John Yoo, who do view the separate branches of American government as in that kind of fully competitive and antagonistic relation, and the law as only meaningful and effective when accompanied by coercion.

I have taken that position myself, that GWB and Cheney can do anything they damn well please to do, and Congress can only and should impeach if necessary, and the people should avail themselves of their own extralegal options in defense against tyranny, if necessary.

But "The Law Be Damned" didn't seem the temper of the OP, or a popular position hereabouts.

I do realize Its-All-Different-If-It's-Obama.

[Doug T.]

Hilzoy did a fine job of covering the key issues. I want to stress the meaning of Bush's misreading of the commander-in-chief clause. He is c in c of the armed forces. Thus, he is claiming that the FBI and all the other agencies involved in this program are part of the armed forces. They are not. They are part of the executive branch and exist so that he can faithfully execute the laws, a distinction Hilzoy makes.

[Moundie]

Wonderful post.

Even those who argue (in the face of 206 years of precedent) that each branch has a coequal right and responsibility to interpret the constitution should agree that doing so in secret is a major problem.

[cleek]

I do realize Its-All-Different-If-It's-Obama.

it would be even better if you would realize that you can't read minds.

[Carleton Wu]

Sure. On the one side Obama, Cheney, GWB, Yoo, Addington. On the other side 429 Congresspersons.
You are free to think it best practice to give the Executive Branch the benefit of the doubt in these disputes.

We ought to be able to agree that there are, in fact, things that Congress cannot legally compel the President to do eg pardon a particular person, promote a particular general, appoint a particular person to the Supreme Court. And that Congress ought not try to compel those things.

I think the President should veto such legislation, and should the veto be overridden take the matter to the Supreme Court. Im much prefer that to signing statements- the biggest problem I have with them is that they ignore the implicit wholeness of a single piece of legislation eg Congress authorized program A with oversight B and reporting C, but the President declares B and C unconstitutional. Congress might well not have approved program A without such oversight, but they've been usurped and their assent co-opted.

Okay, if you read the Hill article Congress is threatening to withhold funds that Obama may promise nations if Obama doesn't follow their restrictions.

They are also literally demanding that he take those positions. He is right to find this an unconstitutional infringement on the clear, sole role of the President in foreign negotiations. Of course, they have the power of the purse to enforce their position (along with the Senate's role in affirming treaties); if they had merely said what they would and would not do under certain circumstances it'd be unobjectionable. This is what their follow-up bill does, and that's fine with me- the only problem now is that the two provisions have been severed into separate bills, and Obama may well veto the latter one.

[russell]

"Sure. On the one side Obama, Cheney, GWB, Yoo, Addington. On the other side 429 Congresspersons."

No, not really.

On the one side Obama, on the other 429 Congresspersons.

Conversely: on the one side Cheney, GWB, Yoo, Addington, and on the other 429 doormats.

I think it's great for Congress to jealously guard their prerogatives and use the purse to put some teeth in it.

Where the hell were they for the previous 8 years?

I've often wondered if somebody -- maybe Karl Rove? -- had a drawer full of 8x10 glossies of each and every member of Congress en flagrante delicto with a barnyard animal.

Hard to understand the difference otherwise.

But, hell yeah, it sure is All-Different-If-It's-Obama.

[Enlightened Layperson]

Let's face it. The President will always be a champion of executive power. That is the nature of the office. Some Presidents are more aggressive in seeking to extend their power than others. But once a predecessor has seized a certain amount of power no President (except a wimp like Jimmy Carter) is going to voluntarily part with it. This was part of the originally intended design of the system.

What was also intended was that Congress would be a champion of legislative power and seek to limit executive power and keep the President from getting out of hand. This they have signally failed to do for quite some time now. The courts are making a noble attempt, but without Congress, they can't do it.

Am I the only one who finds it disturbing that it was the IG, an executive official who was finally able to figure out what was going on, rather than Congress, which is supposed to be tasked with oversight of the executive?

[cleek]

lemme retract my 4:25 comment; it was unnecessarily pointed.

like i said, i don't know all the details of this topic; i've read what's out there, but it's still not clear to me that this isn't a disagreement about the separation of powers and what one branch can compel another to do.

and really, if the spat is over Congress telling Obama how he should deal with the World Bank? that's not exactly a harbinger of imminent dictatorship.

[Marty]

"The fact that the President was willing to defy the Department of Justice on a question on which he had no expertise shows that he was not taking his obligation seriously."

I think three things about this,

1) This statement is not supported by any actions, it is clear throug the whole report that everyone took this seriously.

2) I think they stretched the boundaries to get it started, and then worked through the issues. (I really didn't like the hospital scene)

3) In the timelines of meetings in the report it seems the Congressional leadership was never out of the loop.

It's hard for me to get too worried when the leadership seemed to be working with the administration at every step.

[russell]

"I think three things about this"

I think two things about this.

1. There's a difference between taking your legal and constitutional responsibilities seriously and making sure you CYA

2. I'd have thought the result of the whole process would be enough to cause worry

[Nombrilisme Vide]

2) I think they stretched the boundaries to get it started, and then worked through the issues. (I really didn't like the hospital scene)

When discussing the legality of a course of action, "stretched the boundaries" is nothing more than a dismissive euphemism for "broke the law".

3) In the timelines of meetings in the report it seems the Congressional leadership was never out of the loop.

It's hard for me to get too worried when the leadership seemed to be working with the administration at every step.

That Congressional leadership may have been complicit "at every step" would not mean that the actions were permissible - it would only mean that Congressional leadership was complicit in the wrongdoing. From my point of view, that'd be cause to be more worried, not less.

[Pithlord]

Good post, but one sentence seems like American chauvinism to me:

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

Monarchy doesn't imply that the monarch can interpret the laws any way he or she wants. In Aristotle's typology, it implies the opposite: a state in which one person can rule without regard to the law is a tyranny.

The implied, Sunday-school-version-of-the-4th-of-July, contrast is with Hanoverian England. But, in fact, Geroge III did not claim that he could ignore a statute of the British Parliament and anti-Jacobite laws stated that a person could be convicted of treason for saying he could.

That's important because Yoo routinely gets it wrong.