Blog — Vice President Cheney

August 20, 2013

Have We Come Full Circle? Or Unitary Executive Redux

By Anne Weismann

NSA buildingIn 2004, journalists began reporting on a theory of government advanced by then-Vice President Dick Cheney and his then-top lawyer, David Addington – the “unitary executive.”  Jack Goldsmith, in his book The Terror Presidency, credits Washington Post reporter Dana Milbank with first introducing the term into common parlance in his article, In Cheney’s Shadow, Counsel Pushes the Conservative Cause. At its core, Cheney’s unitary executive theory advocated for virtually unlimited presidential power, unchecked by congressional or judicial oversight.

Many thought President Barack Obama’s election relegated the unitary executive theory to the garbage heap, or at least the dusty annals of history.  Recent revelations suggest it is alive and kicking.  In the name of protecting our nation from terrorism, our government has brushed aside the niceties of the law and the clear limitations of the Patriot Act, denied congressional overseers full access to documentation of its surveillance programs, including assessments of their lawfulness, and withheld from the Foreign Intelligence Surveillance (or FISA) court information that would cast doubt on the legality of its information gathering actions.

Consider the latest revelation made by Barton Gellman of the Washington Post last week that according to an internal NSA audit, the agency broke privacy rules or exceeded its legal authority thousands of times each year in the manner in which it conducted surveillance of both Americans and foreign intelligence targets.  The documents were part of the Snowden cache and their contents would not otherwise have been revealed, given the instructions they contained for removing details and substituting generic language when reporting on the audit results to the Department of Justice and the Office of the Director of National Intelligence.

Not only did the NSA stymie executive branch oversight, but it was equally careful and limited in what it told the FISA court, according to another Washington Post report.  FISA Chief Judge Reggie B. Walton, who until now has been quite tight-lipped on the activities of his very secret court, went so far as to issue a written statement explaining the court “is forced to rely upon the accuracy of the information that is provided to the Court.”  In other words, don’t blame the judiciary, which can’t catch illegalities and “noncompliance” if the government fails to provide the true facts.

What made these serial reports all the more startling was their timing, just six days after President Obama’s White House news conference in which he acknowledged that the American people need to have confidence in our government’s surveillance programs, and outlined a four-step program to meet that objective.  Step one was an as-yet undefined way to put in place “greater oversight, greater transparency and constraints on the use of this authority.”  But this supposed commitment to greater transparency rings especially hollow made in the wake of the Snowden revelations; had Mr. Snowden not forced the president’s hand undoubtedly we would still be in the dark, with no promise of future transparency.

Step two, according to President Obama, is working with Congress to improve public confidence in the FISA court’s oversight.  But public confidence is the least of the issue if the chief judge of that court is acknowledging publicly its oversight is limited by an executive branch that fails to impart truthful and complete information.

Step three in President Obama’s four-step program is bringing more transparency to these programs by making public the Office of Legal Counsel opinion providing the legal rationale for the government’s program and creating a website detailing the mission, authorities, and oversight of the NSA.  With the release of the administration’s White Paper explaining its bulk collection of telephone metadata it is unlikely the promised OLC opinion will offer more details, and the promised website is just window dressing, but no substitute for real transparency.

The president’s fourth step is to bring in a group of “outside experts” to review our surveillance capabilities and suggest ways to avoid future abuses.  The efficacy of such a move is unclear; the devil is in the details.  In any case, do we really believe the intelligence agencies who rarely listen to each other will actually listen to outsiders?

Perhaps most striking is what the president did not say.  He did not acknowledge any actual abuses by the government in its surveillance programs, focusing instead on making Americans feel better about these programs.  Which brings us back to the unitary executive.  President George W. Bush’s administration made no bones about its belief that, especially in wartime – with the war on terror counting as wartime – the president has virtually unchecked powers.  President Obama has adopted a much softer tone, speaking of the need to “secure our nation” with “open debate and democratic process.”  But a review of the administration’s actual actions and policies indicate a continued belief in a unitary executive, unaccountable to Congress or the courts. 

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