Mark Schmitt on abuse of executive power

by Kieran Healy on January 3, 2006

Mark Schmitt “provides some historical context”: for the current wiretapping scandal, and reminds us of the main practical reasons why allowing the President to circumvent the law is a bad idea:

Roughly speaking, there have been four great showdowns over abuse of executive power in modern U.S. history. … These episodes have certain themes in common. Yes, one of them is that they were all hatched in the first term of Republican presidencies and revealed only after reelection, but that’s not the answer I’m looking for. … First, all of them produced a backlash. … The lesson seems clear: In a constititutional system, those who want executive power to be protected and respected, should be especially wary of presidents who take it too far. … Second, all of them involved creating a zone of extreme secrecy in which decisions, and even the processes leading to those decisions, were kept secret not just from Congress and the Courts, but _within the executive branch itself_. … Third, in these zones of extreme secrecy, in which nothing ever has to be justified to anyone outside of the closed circle, all sorts of insanity flourishes. Personal obsessions take hold and are pursued unchecked. Ideas that would be too embarassing to explain to anyone seem to make sense and are carried out. This was true in every example, from the nutball Castro assassination schemes hatched in the CIA to the idea of firebombing the Brookings Institution in the Nixon White House, to the bizarre excesses of Iran-Contra, such as delivering a cake shaped like a key and a Bible signed by Reagan to the Iranian clerics. … Given what we know about these previous episodes in which the executive branch created zones of extreme secrecy, I think it’s quite likely that we will soon learn that the NSA domestic surveillance program involved much more than just tracking people who received calls from known _al Qaeda_ suspects, something that I certainly wouldn’t object to. I don’t know what it will be — some have speculated that it involved monitoring journalists — but whatever it is, it was something that couldn’t be justified even within the administration.

This is a good counterpoint to the detailed legal readings provided by people like Orin Kerr: the fine-grain of the legal issues is very important, of course, but the political sociology of executive/judicial relations is a much broader topic than the proper reading of particular statutes. Mark reminds us that we have historical cases to remind us what tends to happen to the institutions of American government when its officials want to throw the cloak of secrecy over substantial parts of it — not just to keep things from the public but, as Mark says, to hide things from other parts of the executive.



Steve 01.03.06 at 10:28 am

“Given what we know about these previous episodes in which the executive branch created zones of extreme secrecy, I think it’s quite likely that we will soon learn that the NSA domestic surveillance program involved much more than just tracking people who received calls from known al Qaeda suspects, something that I certainly wouldn’t object to.”

Note that under the logic of this argument, the ‘rightness’ of the program depends entirely on how it was used: if it was in fact used only to track Al Qaeda suspects, its ok. And if his suspicions are borne out, and it was expanded to spy on political opponents, or journalists, etc, then the program was not ok. I think most people who agree with the president agree with this entirely-spying on Al Qaeda is ok, spying on the Democratic Party is not. But do those who disagree with the program accept these limits? Is spying on Al Qaeda ok?



abb1 01.03.06 at 11:02 am

You’re missing the point, Steve. If court order is not required, then anyone they say is Al Qaeda – is Al Qaeda, by definition. It could be the Democratic Party, it could be you.


Steve LaBonne 01.03.06 at 11:38 am

If it’s really al Qaeda, they would hardly have a problem getting a warrant from the normally rubber-stamp FISA court. If they don’t seek one, or are turned down and do it anyway, there is every reason to assume they’re up to no good.

Peripherally connected- just the other day I saw an item in one of the local alternative papers about leaked DOD documents showing that the Pentagon labeled a peaceful Friends Service Committe rally as a “potential threat”. Gotta watch out for those violent revolutionary Quakers! This is the kind of Hoover / Nixon crap that is always the actual bottom line when the government bleats about “national security”. And this crowd is even less to be trusted than Nixon’s. For the only possible sane take on this stuff, consult good old Ben Franklin on the folly of attempting to trade liberty for security.


Jack 01.03.06 at 11:42 am

Isn’t there quite a big overlap with Nixon’s crowd?


P O'Neill 01.03.06 at 11:45 am

Another overlap which the Bushies wouldn’t like is with Francois Mitterand — running his own surveillance shop directly out of the Elysee Palace, justified as anti-terrorism but ended up spying on the journalists who might have reported on the mistress and daughter.


a 01.03.06 at 11:49 am

Jack, I think that is a good point. Both Rumsfeld and Cheney got their start under Nixon. I imagine Nixon’s downfall led them to conclude, not that Nixon erred, but that it just had to be done better and more secretly the next time.


someone7 01.03.06 at 12:27 pm


Actually, I believe that the line being drawn by Mark Schmitt is a lot less fine than that. My understanding is that, when he says “(…) tracking people who received calls from known al Qaeda suspects, something that I certainly wouldn’t object to” he isn’t just talking about spying on Al Quaeda but, rather, spying on US citizens who are (supposedly?) (probably?) (possibly?) communicating with Al-Quaeda members. And that end – intercepting communications between US citizens and (supposed?) (probable?) (possible?) terrorists – would justify the means – eavesdropping without a warrant, i.e., violation of a civic freedom. This position is, in my opinion, extremely risky, in democratic terms (I voluntarily leave the legal and moral particulars aside). Why? Three reasons:

1. It isn’t efficient.
2. It creates an incentive for abuse.
3. It erodes the system.

About the issue you raise (Is spying on Al Quaeda OK?), I’d say yes, certainly, within the constitutional and legal limits established in a democratic state. Another completely different thing is an Echelon-type international communications spy net. That isn’t acceptable. And tt’s not me saying so, it was the Council of Europe. When they asked the Bush Administration about it the answer was (obviously) “no comment”.


otto 01.03.06 at 1:14 pm

Not too much impressed with secrecy from other parts of the executive. Lots of things are held only in one part of the executive, and would be even if subject to warrants, following proper procedures etc.


Barry 01.03.06 at 1:16 pm

Should we start a pool on what comes out? I’d like to place money on spying on Democratic politicians.


Tom T. 01.03.06 at 8:10 pm

Schmitt’s point is a good one, but I think it would be stronger if he acknowledged that both parties are subject to such excesses while in power. Truman’s steel seizures case, while not secret, literally wrote the book on intragovernmental conflict. The Bay of Pigs and the various Kennedy conspiracies to kill Castro or at least make his hair fall out fit Schmitt’s point about secrecy allowing private obsessions to flourish. Johnson’s Gulf of Tonkin resolution has come to be viewed by many as the product of having misled Congress about relevant facts. And on a much different scale, the secrecy that surrounded the creation of Clinton’s health-care reform policy was arguably one of the reasons why those proposals failed. Excessive secrecy and executive over-reaching are always a problem, and ideally we should be vigilant on a nonpartisan basis.


bert 01.03.06 at 10:59 pm

“… quite a big overlap with Nixon’s crowd”

In 2001 Dick Cheney stepped down from the International Advisory Board of Oxford Analytica. From the press release:

“We are enormously grateful for the long-standing support of Dick Cheney who has been part of our International Advisory Board for many years. We wish him well as Vice-President of the United States” commented David Young, Chief Executive of Oxford Analytica.

David Young founded OA in 1974, shortly after arriving in England from the US. The previous year he “was spared jail through the grant of limited immunity on the motion of the Senate Select Committee on Presidential Campaign Activities (the Senate Watergate Investigation Committee)” [link]

He was facing jail because he was the original Plumber.
Wikipedia cut and paste:

The group was formed in an almost direct response to the release of The Pentagon Papers in the New York Times beginning June 13, 1971 … On July 1, David Young joined the White House and together with Egil Krogh penned a memorandum to Nixon advisors Haldeman and John Ehrlichman advocating the formation of a White House Special Investigations Unit. Haldeman and Ehrlichman agreed to the plan and obtained the approval of Nixon. Young was put in charge of the unit and reported to Krogh. The nickname Plumbers came to being when Young posted his name on his office door which read ‘David R. Young, Plumber’.

Firstly, lets be clear that I’m not suggesting Cheney has anything to apologize for in his association with Young after 1974. Young was no Howard Hunt, and if anything it’s encouraging to see that there are second acts in American lives, even if sometimes they have to happen in Europe.

What this does though is shed light on an unapologetic mindset. The script runs as follows: the men ruined by Watergate acted virtuously in the service of a strong executive; they were hounded out by an overmighty, politically motivated press; the regrettable result was the malaise of the Carter years; to restore American strength a capable executive needed to regain lost power from those hoarding it but unable to wield it. The source of Bush’s theories of executive authority lead back to Watergate, and to the sense of a wrong that needed to be righted. And it’s striking to see so many parallels with the Nixon years, from the superficial (a damaging New York Times story is countered by a furious denouncement of the sources and an aggressive leak investigation) to the central (Bush’s claims that the powers inherent in the Presidency mean, in effect, “when the president does it that means it is not illegal“).

So, when Mark Schmitt writes about people firebombing the Brookings Institution, he is not talking about a distant past utterly unconnected with the present. And people preparing to defend the current administration should pause, revisit recent history, and ask themselves which side of it they want to find themselves on in the future.


Thomas 01.03.06 at 11:17 pm

Tom, I think Schmitt avoids your objection by referring to “showdowns”, not abuses. In that way he can avoid talking about FDR, Truman, Kennedy, Johnson and Clinton. Though with each there were what he must think of as abuses, only with Clinton was there a showdown with another branch, and though that showdown was justifiable on the grounds he cites, it is surely true that it was only motivated in part by them.

The historical context is relevant. One need only recall that the Church Committee didn’t focus just on the Nixon administration (which makes Schmitt’s reference to the “first term of Republican administrations” a bit out of place). And surely it is possible to draw different lessons from the history. Posner, for example, would point out that we survived the “abuses” of all modern presidents, and that, as the threats facing the country receded, the “abuses” did as well. Why, then, should we be concerned about policies and practices which are consistent with the actions taken by most recent presidents (FDR, etc. through Nixon)? It certainly seems as if these practices don’t automatically lead to totalitarianism–they certainly didn’t in the recent past. (Even Schmitt’s fantastical suggestion that the Bush administration monitored journalists isn’t unprecedented–the Church Committee revealed that the Kennedy WH had done the same.)


abb1 01.04.06 at 2:14 am

It certainly seems as if these practices don’t automatically lead to totalitarianism—they certainly didn’t in the recent past.

They do lead (and did in the recent past) to some kind of -ism, that’s for sure.

But if it’s not totalitarian-ism, then everything is fine, right?


rea 01.04.06 at 6:46 am

“Why, then, should we be concerned about policies and practices which are consistent with the actions taken by most recent presidents (FDR, etc. through Nixon)? It certainly seems as if these practices don’t automatically lead to totalitarianism”

I’ve hit your house 3 times with this wrecking ball, and it’s still standing–it’s even more-or-less habitable still. Surely, therefore, you can have no rational objection to my continuing to hit your house with my wrecking ball . . .


Uncle Kvetch 01.04.06 at 10:54 am

Rea, I think Thomas is making the point that if a Democratic president did it in the past, we’re not allowed to complain about Bush doing it now.

Am I getting warm, Thomas?


Mark Schmitt 01.04.06 at 11:27 am

On two good points raised in these comments:

First, I edited the post within minutes of posting to clarify that when I say I “don’t object” to surveillance of al-Qaeda contacts with U.S.-based individuals, I mean with a warrant. Warrantless searches mean that there is no check on whether the contact is in fact with an al-Qaeda person.

Second, I don’t mean to exclude Democrats from these confrontations or abuses, and the steel seizure case is of course the source of the most important Supreme Court decision on executive power (Youngstown Steel). I also overlooked issues such as the Nixon-era confrontation over budget impoundment, although that’s important to Cheney. These four episodes were of a different type — they were highly secret, they involved invocations of extreme executive power, and they involved perceived threats to national security. I’m not sure the best words to distinguish them, but they are somewhat different from the very public claim by Truman to power in a domestic matter.


Thomas 01.04.06 at 1:36 pm

UK, not at all. I think, as Mark recognizes, one shouldn’t pretend to draw historical lessons on partisan lines. But the point I was making is much different, and is simply that acontextual complaints about particular practices aren’t much help. There are always trade-offs–contrary to Franklin’s unhelpful little saying–between liberty and security, and the question is how much liberty to trade for how much security. One concern often raised is that moving the liberty line even a little bit puts us on a slippery slope, or inevitably leads to further abuses, or other variations. But, as Mark recognizes, recent history shows that isn’t necessarily the case–we’ve proven quite capable of adjusting the boundary as needed, as circumstances changed. Now, facing a very real threat, why shouldn’t the line move from what it was in, say, 1998, to something more like it was in 1942, or 1948, or 1955, or 1962, or 1968, or 1972?


Uncle Kvetch 01.04.06 at 6:34 pm

Fair enough, Thomas. The problem is that this administration, to a degree I believe is unprecedented, is essentially arguing that it can “draw the line” anywhere it damn well pleases–at 1948 or 1968, or somewhere with no real precedent in American history. And “we” don’t have the least bit of say in this–they do. And given their passion for secrecy, “we” really have no way of even knowing where the line is being drawn; we’re meant to take it on faith that they have our best interests at heart. Call it want you want; it sure as hell ain’t “democracy.”


Thomas 01.04.06 at 7:47 pm

UK, on that I have to disagree. I posted elsewhere a bit from the Church Committee’s reports, which I’ll repost here:

In 1940, President Roosevelt authorized FBI wiretapping against “persons suspected of subversive activities against the United States, including suspected spies,” requiring the specific approval of the Attorney General for each tap and directing that they be limited “insofar as possible to aliens. ” 68
This order was issued in the face of the Federal Communications Act of 1934, which had prohibited wiretapping. 69 However, the Attorney General interpreted the Act of 1934 so as to permit government wiretapping. Since the Act made it unlawful to “intercept and divulge” communications, Attorney General Jackson contended that it did not apply if there was no divulgence, outside the Government. [Emphasis added] 70 Attorney General Jackson’s questionable Interpretation was accepted by succeeding Attorneys General (until 1968) but never by the courts. 71
Jackson informed the Congress of his interpretation. Congress considered enacting an exception to the 1934 Act, and held hearings in which Director Hoover said wiretapping was “of considerable importance” because of the “gravity” to “national safety” of such offenses as espionage and sabotage. 72 Apparently relying upon Jackson’s statutory interpretation, Congress then dropped the matter, leaving the authorization of wiretaps to Executive discretion, without either statutory standards or the requirement of a judicial warrant. 73


I think an examination of historical practices makes it pretty clear that presidents have, in recent times at least, been very willing to draw the line where they please. Further, from what we know now about the NSA program, it isn’t nearly as concerning as, say, the activities of FDR or Truman or JFK or Nixon. And “we” certainly retain our say in this: George Bush serves until January 2009, unless Congress decides to remove him earlier pursuant to its impeachment power. “We” will choose his replacement, and “we” choose the Congress. (And note that Congress was informed of this matter.)


Uncle Kvetch 01.05.06 at 10:33 am

Further, from what we know now about the NSA program, it isn’t nearly as concerning as, say, the activities of FDR or Truman or JFK or Nixon.

Sorry to go all Rumsfeldian here, but: How do you know that what we know is all there is to know? You seem awfully sure that you know the facts here, but the entire point is that the administration doesn’t think you have a right to know the facts.

And “we” certainly retain our say in this: George Bush serves until January 2009, unless Congress decides to remove him earlier pursuant to its impeachment power.

And “we” wouldn’t be having this discussion at all if it weren’t for the fact that the New York Times decided to break the story–an act that many of Bush’s supporters are calling treasonous. So if they had their way, we would be completely in the dark about all of this…kinda hard to hold an administration accountable for things you don’t know it’s doing, isn’t it?

We could go round and round here, Thomas, but I think we should probably agree to disagree and move on. The bottom line is this: I wouldn’t trust a single member of this administration with my laundry, let alone with running the country. I believe their record speaks for itself: they have proven themselves to be both staggeringly incompetent and flagrantly duplicitous. I think I have the facts on my side, but if you believe that the administration deserves our trust, I really don’t know how we can get any further in this discussion.


Thomas 01.05.06 at 11:47 am

UK, that we don’t know much is a fair point in response, but I would say that we didn’t know much, at the time, of what the presidents I mentioned were doing, and what we now know they did in this area is almost unimaginable–from the black bag jobs of Hoover’s FBI to JFK’s wiretaps on reporters, or the use of FBI surveillance information for political purposes by Truman, Eisenhower and Kennedy. It’d take a lot to exceed the practices of the mid-20th century.


Uncle Kvetch 01.05.06 at 2:12 pm

Thomas, we are a very, very young country in the grand scheme of things, and as a result I think your faith in the resilience of our institutions to survive these kinds of pressures is somewhat misplaced. “We may or may not have survived something as bad or possibly even worse than what we may or may not be experiencing right now–and we got through it just fine!” just doesn’t convince me.

And if you’re asking me to give Bush a pass on this because Truman, Eisenhower & Kennedy may or may not have done even worse, I’m not going to follow you down that road. Again, to a certain extent this all hinges on our own personal views of the people involved. Yes, Truman, Eisenhower and Kennedy may very well have overstepped the bounds. There’s a crucial distinction, though: I don’t believe for one second that any of them had the aspirations to unchecked executive power that Bush & Cheney do. To that extent, they’re really not relevant precedents. A far more relevant one would be Richard Nixon, who essentially believed that if the President does it, it can’t be illegal. All signs right now point to Bush believing the exact same thing.

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