Presidency: Shouldn't Somebody Tell George W. to Stop Acting Like Nixon?
President Richard Nixon didn't like Congress asking him a lot of questions about how he was performing as the head of the Executive Branch. In fact, Congressional oversight annoyed the hell out of him. Accordingly, he was dead set against his aides testifying on Capitol Hill. Today, the world knows why. It's called abuse of power.
For that reason alone, it is remarkable that the Bush White House regularly employs Nixonian tactics - even, most recently, on an issue as important as homeland security. The Bush Administration sure looks to me like they found an old Nixon presidency playbook down in the basement of the White House, since they have borrowed more than one page. Why it's being done remains inexplicable.
George Bush's latest Nixonian type maneuver is refusing to send former Governor Tom Ridge, his homeland security adviser, to Capitol Hill to testify about the $38 billion appropriation request. This is money that will be spread through several departments and agencies of the Bush administration in fiscal 2003 budgets to protect Americans from terrorism.
It is entirely reasonable for Congress to ask Ridge to testify on this crucial subject, and quite Nixonian for the Administration to refuse to agree to the testimony.
RIDGE'S REFUSAL TO TESTIFY: A NIXONIAN TACTIC
In the House, a compromise (but not a bipartisan one, for it was only satisfactory to Republicans) was reached with an Appropriations Subcommittee. Governor Ridge agreed to go to Capitol Hill to"brief" the members behind closed doors. Understandably, Democratic members of the subcommittees are complaining, for they want him to testify under oath, and subject his testimony to cross-examination.
The Senate has been less accommodating. Indeed, Senate Appropriations Committee Chairman Robert C. Byrd (D-WVA) and top Republican Senator Ted Stevens (R-AL) recently wrote to Ridge objecting to his refusal to testify regarding the appropriations.
They asserted, quite correctly, that"not to testify in a formal committee hearing...would be a major departure from the Senate's traditions and long-standing practices regarding the expenditure of public monies." Senators Byrd and Stevens are not interested in a one-way briefing; they rightly seek testimony, taken under oath, that they can scrutinize and question. Only a megalomaniacal Executive Branch would refuse.
THE NIXONIAN DESIGN OF RIDGE'S HOMELAND SECURITY OFFICE
The striking parallels to the dubious dealings of the Nixon administration go beyond the refusal to testify itself.
No doubt most people have long forgotten Richard Nixon's plans to reorganize the Executive Branch after the 1972 election. He planned to exercise the powers of the presidency more aggressively than any president ever had, and a cornerstone of his plan was cutting off Congressional oversight, while imposing his will on the Executive Branch of the government.
President Bush has structured the White House homeland security operation as if modeled on Nixon's old (and discredited) governing plans. All the decision and policymaking is being undertaken at the level of the White House staff - where it is immune from Congressional oversight. As a result, the government is being run in secrecy more typical of a big corporation than an open, democratic society.
The White House Office of Homeland Security was created to give Americans both real safety and reassurance. Yet its structure, characterized by secrecy, is actually reason for concern. Most troubling is its similarity to the Nixon model, which was designed to hide abuses of power.
A CLOAK FOR ABUSES OF POWER: NIXON'S SECRET SYSTEM
Nixon's plans were designed to avoid the difficulty of reorganizing the departments and agencies of the Executive Branch, with their entrenched bureaucracies and Congressional appropriations and oversight committees. Rather than deal with the"hassle" (otherwise known as Constitutional checks and balances), he sought to impose his plans to allow the Presidency's operations to be orchestrated with a hidden hand - so that he could govern largely in secret, through a structure imposed on top of the existing, and far more open system.
Nixon would run the government by Executive Orders, management directive, and budgetary controls, while bringing all the domestic and foreign policy decision-making into the White House, and out of public view. He would appoint special, high level White House aides to tell his Cabinet officers what to do and how to do it, and if they didn't respond to the White House's commands, he would remove them, as well as their aides. As one political scientist described these plans, they looked as if they had been prepared by the Soviet Politburo.
WHY NOT SITUATE THE OFFICE OF HOMELAND SECURITY WITHIN AN EXISTING AGENCY?
From the day President Bush announced his selection of Governor Ridge to head a White House Office of Homeland Security, I was struck by the decision to implement homeland security from the White House. The obvious alternative was to have Congress reorganize existing departments and agencies to create a Department of Homeland Security. This is the concept Senator Joe Lieberman (D-CN) has been exploring.
It's clear that the Bush White House chose to go the Nixon do-it-yourself route. The Congress be damned, they decided to build their homeland security operation to resemble the National Security Council. Unsurprisingly, they are drawing on the same doubtful precedents we'd pulled out of old files for Nixon's plans, to supposedly justify the Office of Homeland Security's status and secrecy. In so doing, the Bush administration clearly decided to effectively exclude Congressional oversight.
I can only image the delight with which Nixon would have cheered on this approach. I can hear him:"That-a-boy, George. Don't let those [expletive deleted] on the Hill get in your way. You've got it right. If everything works out, you get the credit. If it doesn't, you blame it on Ridge. And never forget my adage, George. If the President does it, it's legal."
Nixon, of course, was forced to resign before he could implement his plans. Still, I've always been curious how it might have actually worked, not to mention whether the Congress would have let him get away with it.
Would the departments and agencies fall into line when a senior White House aide so directed them? Would the Cabinet officers follow orders from anyone other than the President himself? Could a senior White House aide resolve long time department rivalries, like those between the CIA and FBI, or Treasury and Justice law enforcement responsibilities? Could an aide get the Border Patrol, Immigration and Naturalization Service, and Customs operating all like they belong to the same government?
Now it might seem that we should be able to get some sense as to how the Nixonian model of executive government would have worked - by observing it in practice, in Office of Homeland Security. Part of the answer is that the central tenet of Nixon's proposed architecture - secrecy - works brilliantly. As for the rest of the answer as to how the Office works, precisely because the secrecy is so successful, the answer is this: Neither the public nor the Congress have any idea.
Whether Bush can get away with this Nixonian ploy, it's too soon to tell. The U.S. Senate will answer that question. The bipartisan letter to Ridge from the appropriations committee suggests that the Senate won't give up on this point without a fight. Nor should it. This is an issue basic to their oversight function in general - and to homeland security in particular.
CONGRESSIONAL OVERSIGHT IS IMPERATIVE FOR HOMELAND SECURITY
Fortunately, there have so far been no subsequent terrorist acts in the United States comparable to what occurred on September 11th. Does this mean the Office of Homeland Security is working? It's unclear. If terrorist attacks have been foiled, it has been a well-kept secret. More likely, we've just been lucky.
All we really know about homeland security is that Tom Ridge, after several months on the job, has announced a color-coded warning system that few Americans understand, and even fewer believe will make a tinker's damn of difference to their safety.
We also know that there is a wide consensus of opinion in Washington, outside the Bush Administration, that the Office of Homeland Security is all hat, and no cattle - as they say in Texas. And finally, we know that Ridge has refused to testify about his work.
I'm sure I don't have to tell anyone, but Americans are being treated like fools. Fortunately, they are much more sophisticated today, and better informed, than they were during World War II, when FBI Director J. Edgar Hoover was able to bluff the public into believing the vigilance of the FBI was protecting them from Nazi and Japanese saboteurs. The historical records show Hoover was not effective at all, only occasionally fortunate.
Congressional oversight and the collective wisdom of Congress are essential in our dealing with terrorism. Presidents don't issue press releases about their mistakes. Nor do they report interagency squabbles that reduce executive effectiveness. They don't investigate how funds have been spent poorly or unwisely. And they're not inclined to explain even conspicuous problems in gathering national security intelligence. When did anyone hear of a President rooting out incompetent appointees (after all, they chose them in the first place)?
In contrast, Congress wants to do all these things, thereby keeping a President on his toes. Its oversight is crucial - for the Presidential and Executive Branch limitations I've suggested are only a few of the myriad problems that might hamper the efficacy of the Executive in its efforts to deal with terrorism, and that Congress can help to correct.
Justifiably, Americans are worried, but they are getting on with their lives. Shielding and hiding the man in charge of homeland security from answering the questions of Congress is entirely unjustified. This talk of"separation of powers" and"executive privilege" is unmitigated malarkey. It is a makeshift excuse to keep the Congress from policing the White House.
I doubt anyone in the Bush White House is more familiar with these devices of keeping Congress out of the White House than I am. And I can tell you - not withstanding any lofty claims to the contrary - that they are never justified with regard to any fundamental policy widely important to all Americans.
Homeland Security, of course, is the quintessential such policy. In this and other important areas, the public's right to know, and the need for checks and balances, always must trump a president's penchant for secrecy.
In the calls for Governor Ridge to testify, no one is seeking to invade the"deliberative process" - through which the President is entitled to unfettered advice and confidential advice from his aides. Rather, the Congress and public want to know where the President is going to spend $38 billion dollars for homeland security and why. Congress has a right to answers. President Bush is not entitled to a cashier's check from the Treasury, until he satisfies those on Capitol Hill that the purse strings have been constitutionally loosened.
PRECEDENT FOR WHITE HOUSE AIDES TESTIFYING
The Washington Times, which has good sources of information at the Bush White House, quotes a Bush aide as saying,"Condi Rice [national security adviser] doesn't testify. Andy Card [chief of staff] doesn't testify," so neither should Tom Ridge. It is true, presidential advisers at that level, Assistants to the President, typically don't appear before Congress.
However, there are many exceptions to the rule. For example, President Nixon had to yield in 1972 and permit Assistant to the President Peter Flanigan to testify about his role in the Department of Justice settlement of an antitrust case against ITT. And, of course, President Reagan let his national security adviser, John Poindexter, testify before Congress (for which he was later indicted and convicted).
But, beyond these examples, there is one particularly strong precedent to send Tom Ridge to testify. All recent Presidents have permitted their Assistants to the President for Science and Technology to testify before Congress, including President Bush.
There's absolutely no reason to distinguish Bush's science adviser, Neal Lane, from his homeland security adviser, Tom Ridge. Both are high-ranking Assistants to the President, with broad advisory responsibilities. In fact, given the circumstances, the reasons for Tom Ridge to testify are even more compelling than those for Neal Lane to do the same.
Frankly, we must all hope that Senator Byrd prevails in demanding that Governor Ridge appear, and testify under oath. The idea of merely"briefing" the Senate Appropriations Committee (or the House for that matter) is a bad joke. If Ridge needs to address classified or otherwise confidential national security matters, that can be accommodated in a closed executive session, for these committees regularly receive highly classified information. Otherwise, the hearings should be open, so we can all learn how the President wants to spend $38 billion during the next fiscal year on homeland security.
To be perfectly clear (as our most disgraced President used to say to make his point) - homeland security is no place for Nixon-style executive leadership. Only mushrooms and trouble thrive in the dark.
This piece was first published by findlaw.com and is reprinted with permission.