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Janine R. WedelAuthor, "Shadow Elite"Posted: April 8, 2010 07:15 AM

Shadow Elite: Warrantless Wiretap Case &Obama: Abuse of Executive Power?

The next few "Shadow Elite"columns will focus on the troubling implications of a steady increase inexecutive power around the world. This week we'll trace the path over time of expanding executivepower in the U.S., and look at whether President Obama's defense strategy in the warrantlesswiretapping case was a case of overreach.

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Last week's ruling that the warrantless wiretapping from the post 9-11 era is illegal was not just astinging rebuke to the Bush administration. It also slammed the currentadministration for arguing,just as the previous one did, that the lawsuit brought by an Islamic charity should be dismissedbecause allowing it to go forward could reveal state secrets.

The judge harshly criticized the Obama Justice Department for invoking the so-called state-secretsprivilege, saying it would allow "unfettered executive-branch discretion", with "obvious potential forgovernmental abuse and overreaching".

The Obama defense strategy came to light last year, and for many, it was a disturbing deja vu of thebrass knuckles tactics of the Bush years. The Huffington Post's Dan Froomkin had this from LouisFisher, a constitutional law specialist at the Library of Congress.

If an administration is at liberty to invoke the state secrets privilege to prevent litigationfrom moving forward, thus eliminating independent judicial review, could not theadministration use the privilege to conceal violations of statutes, treaties, and theConstitution? What check would exist for illegal actions by the executive branch?

President Obama's willingness to assertively flex executive power in the wiretap case, and beyond, hascome as an unwelcome surprise to supporters who hoped that he might reverse what they saw as awholesale grab of unauthorized authority by the Bush White House. But the trend towards greaterexecutive power did not begin with George W. Bush, and it would be naive to assume that it wouldend with him.

As I showin my bookShadow Elite, a redesign of governing, aided by the rise of executive authority,is one of the key developments of the late 20th and early 21st centuries that has helped usher forth a

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new system of power and influence. It's a system in which a small number of ultra-nimble playersmoving seamlessly among roles in government, business, think tanks, and media pursue their ownagendas, at the expense of democracy, transparency, and accountability.

A vision of a streamlined state burst onto the public stage in the United States and the UnitedKingdom in the early 1980s, with Ronald Reagan and his ideological soul mate, Margaret Thatcher,leading the rhetorical charge. Reagan campaigned against "big government" and presided over an ageof deregulation, relaxing constraints on industry, while Thatcher pressed to privatize the economy by

selling government-owned enterprises. The redesign of governing had its origins in these policyreforms (especially those dealing with government itself), as well as in expanded executive power,which often was necessary to implement reform.

The "Reagan revolution" sanctified the practice of contracting out government services, ostensibly tocontrol costs while letting governing entities concentrate on their central mission. And the trend is soentrenched that it transcends party, with President Clinton and Vice President Gore declaring theywould "Reinvent Government". The result: a host of nongovernmental players were increasinglydoing the government's work, often overshadowing government bureaucracy, which began to look likeSwiss cheese: full of holes, a condition ideal for a new kind of power broker to plug those holes.

This new power broker could also take advantage of expanding executive power.

Enter George W. Bush and the defining event of his presidency: 9/11. Vice President Cheney wasconvinced that the power of the executive had eroded in the post-Vietnam era, (though thescholarship suggests that those powers have actually been intensifying throughout the 20th century).And 9/11 gave him and his allies fertile ground to reamass what they believe they lost. The warrantlesswiretapping declared illegal last week was one of the most controversial expansions of executivepower during the Bush Presidency, advocated obstensibly to fight the "war on terror". (The expansionwas by no means confined to the U.S.: executive power globally has grown as a result of the post-9/11adaptation of international security law.)

Another means of expanding executive power was the use of presidential "signing statements". Asigning statement is a pronouncement about a provision of a law passed by Congress and signed bythe president. While Presidents Carter, George H.W. Bush, and Clinton all signaled their objectionsfrom time to time through constitutional challenges contained in signing statements, George W. Bushincreased the number of such challenges more than tenfold compared with Clinton: more than 1,100.

Further, he employed them in an unprecedented way: to effectively curtail the power of the legislativebranch by threatening (via the challenge) to not enforce a law passed by Congress. In effect, Bushclaimed to accomplish what the Supreme Court has deemed unconstitutionala line item veto. Justas presidents have been afforded leeway during wartime in the interest of protecting the nation, Bushused 9/11 as justification to expand presidential powers, often keeping the legal justifications secret.

Such precedents leave an enduring legacy, which may be why in early 2007 a distinguished panel ofthe American Bar Association determined that the ways that signing statements were used by GeorgeW. Bush are "contrary to the rule of law and our constitutional system of separation of powers." Theuse of signing statements was also criticizedby candidate Obama, who said that he would showgreater restraint.

But as President, Mr. Obama has provoked bipartisan anger by issuing a handful of his ownstatements. Four senior House Democrats said in a letter to Obama that they were "chagrined to see{Obama} appear to express a[n] attitude.." similar to that of President Bush.

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And the out-going president of the ABA, H. Thomas Wells, said this last summer to theNew YorkTimes:

We didn't think it was an appropriate practice when President Bush was doing it, and ourpolicy is such that we don't think it is an appropriate practice when President Obama is doingit.

And in recent weeks, President Obama flexed executive muscle again, saying he would make 15 so-

called recess appointments, a day after Congress left for spring recess. TheNew York Times says themove puts Obama on par with his predecessor in terms of number of recess appointments at this timein his presidency, though a Washington Posteditorial notes that Obama's appointees have beenwaiting far longer for confirmation. (According to the Congressional Research Service, PresidentGeorge W. Bush made 171 recess appointments; President Clinton made 139.)

But it was the effort in the spring of 2009 by the Obama Justice Department to get the warrantlesswiretap case decided last week dismissed that left some of the President's own supporters feeling thatthe move smacked of a Bush-era executive power grab. Some of those supporters and civil libertariansare hoping the Administration will accept the Judge's decision and choose not to appeal.

In a broader way, Obama's willingness to test the limits of executive authority, mirroring the defensestrategy of the last White House in the warrantless wiretap case, underscores a fundamental truthabout power. Once it's deployed, it's like toothpaste out of a tube: it's not likely to find its way back inon its own volition. And with increasing executive power a worldwide trend, this trajectory looks evenmore ominous. That's why vigilance is needed on any new assertions of executive authority, evenunder a President who insists that he will deploy his power more judiciously than the last.

Linda Keenan edits theShadow Elite column.

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