The Return of the Imperial Presidency: An Interview with Charlie Savage
Mr. Lindley is a Seattle attorney and a writer who covers international affairs, human rights, politics, law, medicine, the media, and arts. He was a chair of the World Peace through Law Section of the Washington State Bar Association, and a staff attorney with the U.S. House Select Committee on Assassinations on the investigation of the death of Dr. Martin Luther King, Jr.In May 1977, Former President Richard M. Nixon told British interviewer David Frost, “When the President does it that means that it is not illegal.”
Vice President Dick Cheney apparently has embraced the most staggering view of unlimited presidential power since Nixon’s assertion of imperial prerogatives. In the current administration, Cheney and his aide David Addington have schemed to push the limits of executive power since before the 9/11/2001 attacks, according to reporter Charlie Savage’s sweeping new book, Takeover: The Return of the Imperial Presidency and the Subversion of Democracy.
Savage describes tactics from signing statements and court packing to extreme secrecy that the Bush-Cheney administration uses to dismantle constitutional checks and balances and to circumvent laws and treaties.
Takeover has been praised by observers from both sides of the political aisle, including conservative columnist George F. Will, Nixon White House Counsel John Dean, and progressive law professor Laurence Tribe. Norman J. Ornstein of the conservative American Enterprise Institute wrote: “Every American concerned about the erosion of checks and balances in our constitutional system should read this book—and weep.”
Savage covers legal affairs for the Boston Globe. He was awarded the 2007 Pulitzer Prize for national reporting on abuse of signing statements by President Bush. He has a master’s degree from Yale Law School.
Savage recently responded to a series of questions on White House efforts to expand executive branch secrecy and unchecked authority.
Robin Lindley: What inspired you to cover signing statements, and then pursue executive power more broadly in Takeover?
Charlie Savage: My regular beat is legal affairs with a focus on 9/11-issues. In 2005, I was following closely the fight in Congress over the McCain Torture Ban. That fight ended with Bush signing the ban into law on Dec. 30, 2005, then issuing a late-night signing statement instructing CIA and military interrogators that the new ban was an unconstitutional encroachment on his powers as commander-in-chief and so it did not need to be obeyed if he told them not to obey it.
Two months later, I was covering the fight in Congress over whether to re-authorize and make permanent the USA Patriot Act. That fight, too, ended with a provocative signing statement by Bush, in which he instructed the Justice Department that he had the constitutional power to authorize officials to disobey the new oversight provisions that he had agreed to as a condition of breaking a Senate filibuster and getting the bill passed.
After those two articles, it made sense to take some time off and go find and decipher all of Bush’s signing statements, including those that had nothing to do with national security, to see what else Bush had signed but claimed a right to defy. It turned out that he had challenged more laws in his first five years as president than all previous presidents in American history combined. And as I continued to pursue the signing statements story, I learned that they were primarily coming out of Vice President Cheney’s office, and that on a day-to-day level, they were the handiwork of his longtime top aide, David Addington.
Back in December 2005, when the New York Times had revealed the warrantless wiretapping program, Cheney had told reporters that if they wanted to understand why he thought it was legal for Bush to bypass the warrant law, they should go read a report that he and Addington had worked on back in 1987 during the Iran-Contra scandal. The report, all but ignored at the time, had laid out a sweeping view of presidential power to bypass laws that limited his options in foreign affairs and national security matters – a vision for a presidency above the rule of law.
At that point, it became clear to me that the signing statements story, as amazing as it was, was really just the tip of the iceberg – just one tactic among many for increasing presidential power that the White House, pushed by Cheney, had been systematically advancing in fulfillment of an agenda he had been fostering for decades.
Lindley: Your book focuses on executive overreaching under Bush-Cheney. How do the actions of this administration differ from those of strong Presidents such as Lincoln, Franklin Roosevelt, and Truman?
Savage: During the first two months of the Civil War, Lincoln undertook many actions that were illegal, such as spending money that was not appropriated by Congress, enlarging the Union army, arresting suspected Southern agents without giving them normal legal rights, etc. But crucially, he did so when Congress was out of session. When they returned, on July 4, 1861, he wrote lawmakers a letter, described everything he had done, admitted that some of his actions had been illegal, but explained that it had been necessary to act without delay after the firing on Fort Sumter. Lincoln asked Congress to retroactively make legal what he had done. Lincoln did not claim that what he had done was lawful, or that he (and all presidents) had inherent powers as commander in chief to lawfully violate laws at their own discretion. Forgiving the trespass in light of the circumstances, Congress passed a statute retroactively approving Lincoln’s actions.
Similarly, in the early days of World War II, before the US joined the war, FDR sent supplies to England in violation of the Neutrality Act. But FDR, too, did not claim that he had inherent power to violate the law; instead, he used a strained and stretched interpretation of the statute to justify his action and – crucially – he did not do this in secret, but rather was open about his actions and his reasons, and he Congress at every step to gain their tacit acquiescence. And, when it came time to join the war overtly, FDR went to Congress for authorization.
By contrast, the Truman years marked the beginning of what the historian Arthur Schlesinger Jr. dubbed the “imperial” presidency, a time when the presidential power began to slip loose from its constitutional moorings. Truman took the nation into a major overseas war in Korea without going to Congress for permission, citing his inherent powers as Commander in Chief, and two years later he ordered the government to seize the nation’s steel mills in order to avert a strike he said could endanger the war effort, and again citing his inherent powers. The Supreme Court pushed back against the steel-seizure order, saying that Truman had to obey a law passed by Congress that detailed ways in which the government could try to avert a strike – and which did not include simply taking over a factory.
But Truman’s approach signaled the beginning of a new way of thinking about presidential power – a power that was cut loose from checks and balances, and existed above the rule of law. Truman and his immediate successors also sought – largely with success – to establish powers for the president that would allow the White House to operate with much greater secrecy and unilateral authority as a routine matter – not just for a few months or years of crisis, but as a new normal for the open-ended decades of the Cold War. In these ways, the Bush-Cheney approach in unilaterally establishing greater powers for the presidency during the open-ended war on terrorism has much more in common with Truman’s than with Lincoln’s or FDR’s.
In addition, there are ways in which the Bush-Cheney administration has sought to expand presidential power that do not find a match in these predecessors, including by systematically selecting executive branch lawyers who had adopted an extreme view of presidential power to be Supreme Court justices, centralizing control over the federal bureaucracy, frequently issuing signing statement challenges to new laws, embracing the Unitary Executive Theory (which didn’t exist before the mid 1980s), etc.
Lindley: Doesn’t the "unitary executive" theory run afoul of the separation of powers doctrine set out in the Constitution?
Savage: The Unitary Executive Theory is a revisionist interpretation of the Constitution that gives much greater power to the president. The theory holds that it is unconstitutional for Congress to enact laws that in any way fracture the president’s control of the executive branch or anything deemed to be an “executive” power.
The theory was first invented by the Meese Justice Department during the Reagan years. At the time, they were thinking about comparatively tame domestic issues, like the independent regulatory agencies; for example, they mused, perhaps the Federal Reserve was unconstitutional and the president ought to be able to raise and lower interest rates at his own discretion.
The Bush-Cheney legal team has significantly expanded the sweep of the theory to encompass matters of national security. They hold that defending the nation is an executive power committed exclusively to the commander in chief, and essentially have used the theory as putative legal justification for holding that a whole range of laws that establish rules, regulations, and controls on military and intelligence matters are unconstitutional and do not need to be obeyed because such decisions –such as how to interrogate detainees or go about wiretapping – are for the president alone to decide.
Mainstream legal scholars across the political spectrum reject this interpretation of the Constitution, which on its face overlooks the plain text of the founding document, and the Supreme Court has consistently rejected its principles across generations. Rulings in 1935 (upholding the constitutionality of independent agencies) and in 1988 (upholding the constitutionality of independent counsels), in particular, are decisive blows against it.
In addition, one of the most important legal thinkers from the Reagan years, Stephen Calabresi (now at Northwestern Law School), who has spent his career writing articles that developed the Unitary Executive Theory, has said that he disagrees with how the Bush-Cheney administration has been using the theory; even Calabresi, who is more than anyone the father of the theory, thinks they are wrong.
Lindley: What is Dick Cheney's role in promoting expansion of executive power?
Savage: Dick Cheney has been the driving force behind the Bush administration’s systematic and highly successful project to expand presidential power, a push that was articulated on their first day in office, long before 9/11, and whose first battleground was the fight over whether Cheney would have to comply with open-government laws that mandated that he tell Congress and the public whom his energy task force had met with.
Cheney’s files from his days as Gerald Ford’s chief of staff in the post-Watergate/Vietnam moment show the origins of this agenda. Day upon day, the Ford White House was confronting the Church Committee’s investigations of intelligence abuses and a Congress that was determined to re-impose checks and balances on the “imperial” presidency. This seemed outrageous from Cheney’s vantage point and he spent the next three decades trying, without much success at first, to roll back the changes of the 1970s and to restore presidential power to the level it had briefly, aberrationally, reached before Nixon fell. During his decade in the House of Representatives, he continuously argued with his colleagues that they ought to be giving the president more flexibility, not less, especially in matters of national security and foreign affairs – not just during Iran-Contra, but throughout that decade.
As Secretary of Defense to the first President Bush, he urged George H.W. Bush to launch the Gulf War without going to Congress for permission, like Truman had done, though his advice was rejected. But the second President Bush adopted Cheney’s view that they ought to use their time in office to strengthen presidential power as an end to itself – to leave the office stronger than it had been when they inherited it – and that is what they set out to do. On a day-to-day level in the White House bureaucracy, Cheney’s top aide David Addington has been the most important bureaucratic force driving this policy.
Lindley: What precisely is a signing statement, and what recourse does Congress have if a president in effect vetoes a part of an act with a signing statement?
Savage: A signing statement is an official legal document issued by the President on the day he or she signs a bill. Filed in the Federal Register, signing statements lay out the President’s interpretation of new laws and instruct the executive branch to interpret the laws in the same fashion.
The device becomes controversial when Presidents use it to declare that various sections of the bills that they have just signed are unconstitutional and so do not need to be enforced as Congress wrote them. Moreover, the laws targeted in this fashion have most often been constraints on the President’s own power as head of the executive branch or Commander in Chief, so this claimed power to-sign-but-not-enforce boils down to a claimed power to-sign-but-disobey.
In his first six years of office, Bush attached signing statements to about 150 bills, challenging well over 1,000 distinct sections of those bills, while at the same time virtually abandoning his veto pen. By contrast to the 1000+ laws Bush has challenged, all previous presidents in American history combined had challenged about 600 such laws from the 19th Century to the end of the Clinton administration. The laws Bush has challenged ran the gamut from military rules and regulations, whistleblower protections for executive branch employees, requirements to give information to Congress, safeguards against political interference in federally-funded research, and affirmative action provisions.
Congress is still trying to figure out what it can do about the explosive growth of signing statements. Lawmakers have proposed various legislation, but nothing so far has seemed to be a solution.
Lindley: How have signing statements and executive orders affected the work of government departments?
Savage: One of the things that people are still trying to figure out is how often the signing statements get carried out, and how often they are simply bluster or reserving a right to do something. A big problem is that most of the most interesting ones, like the Patriot Act oversight provisions and the McCain Torture Ban, involve classified national security issues where what the government is doing is a secret.
The GAO recently completed a study of 19 provisions that Bush had challenged using a signing statement – none of them the more interesting ones. It found that the government enforced or obeyed 10 provisions as written, three were not triggered by events and so did not have to be obeyed, and six were disobeyed. The GAO did not determine whether the signing statement was the cause of the disobedience, but when it asked one agency – the Immigration and Customs Enforcement service – why it had not obeyed the law, it was told that the law was merely “advisory” rather than mandatory, just as Bush’s signing statement had instructed ICE to view it.
Three months after the GAO report, the US district court for the District of Columbia handed down a ruling in a case that presented further evidence that signing statements were having a real-world impact and, increasingly, becoming a source of authority for courts. In 2002, Congress had passed a bill that contained a provision requiring the State Department, when issuing passports to US citizens, to list “Israel” as the country of birth for anyone who had been born in Jerusalem. Bush signed the bill into law, but issued a signing statement instructing the State Department to view the new Jerusalem-is-Israel statute as an unconstitutional intrusion into his own “authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch.” A few weeks later, in October 2002, a child had been born to an American couple in Jerusalem. They applied for a US passport on behalf of their son, and the State Department listed the boy’s place of birth as “Jerusalem” instead of “Israel” on that passport. The couple sued to get the State Department to obey the new law concerning Jerusalem and passports, setting up a rare case in which a court had jurisdiction to hear a challenge to a legal claim arising from a presidential signing statement. But on September 19, 2007, the judge dismissed the case in a decision that both quoted Bush’s signing statement and ruled that the issue was a “non-justiciable political question.” So the signing statement instruction carried the day.
Lindley: You write that the Bush-Cheney administration has unilaterally ignored or violated treaties without consulting Congress?
Savage: In December 2001, the administration pulled the United States out of the Anti-Ballistic Missile Treaty without consulting the Senate, which had ratified it, to see whether it wanted to de-ratify it. This locked down a precedent that presidents could abrogate treaties on their own say-so, contrary to historical practice. The first president to do this, apparently, was Jimmy Carter, when he pulled out of a mutual-defense treaty with Taiwan in order to recognize Communist China. Sen. Barry Goldwater sued, saying Carter had to come to the Senate for permission, but the Supreme Court dismissed the case as a non-justiciable political question and the Democratic-dominated Senate let the issue die down without clear resolution. There was one extra wrinkle in the Carter case, though: presidents do have the power to recognize foreign governments under the Constitution, so to the extent the treaty got in the way of Carter’s core power, perhaps that was a special exception to the rule. The ABM treaty pullout established that it was now a general rule that presidents need not consult Congress when disposing of even major ratified treaties.
The Bush administration also reinterpreted into meaninglessness restrictions on presidential power found in the Geneva Conventions and the UN Convention Against Torture. It did not consult Congress in either case.
Lindley: How has the administration used secrecy to keep information from the public on issues such as energy policy and climate change?
Savage: The Bush administration has expanded the fortress of executive secrecy that prevents Congress and the public from knowing information about the executive branch’s actions or intelligence matters across a range of matters. Even before 9/11, in the fight over Cheney’s energy task force papers, it fought to the Supreme Court to win precedents gutting open-government laws that had previously required the White House, such as with Hillary Clinton’s health care task force, to perform such work in the public view.
It has also used political appointees to edit and censor government science reports that did not support the administration’s policy preferences on global warming.
During the run-up to the vote authorizing the Iraq War, some lawmakers chose not to receive briefings about American intelligence about alleged WMD or Al Qaeda connections in Iraq under rules that would prevent them from publicly debating the war if they did receive such information from the executive branch.
Lindley: What can average citizens do about alarming unilateral actions of the executive branch under Bush-Cheney?
Savage: As a journalist, my role is to describe what is happening, what has happened, and how things have changed. Thus, answering this question is largely for others. I do feel comfortable, however, saying that I think that executive power should be one of the issues on the table in the upcoming election. It stands to reason that aspiring presidential candidates from both parties should be asked detailed questions about their views on presidential power and what limits, if any, they think they would have to respect on their own authority – before election day, not after one of them has already moved into the White House.
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