Checks and balances checkup

Today, Lomonaco and York assess Bush’s relationship with Congress. Previously, they his remaining agenda. Tomorrow and Friday, they’ll address calls for impeachment and the president’s legacy.

Unilateralism made Bush less powerful
By Jeff Lomonaco

Byron,

Perhaps the hallmark of the Bush administration has been its ambition — which it has made explicit numerous times — to enhance the power of the executive branch. Whether and how President Bush has changed the balance of power between the White House and Congress remains something of an open question. But I think there can be no doubt that Bush’s effort to assert and exercise power unilaterally, especially in the national security area, has produced inferior policy and fails to appreciate how power is best exercised in our system of government.

The Bush administration’s approach to the balance of power with Congress was concisely expressed by David Addington, Vice President Dick Cheney’s chief of staff (and formerly his counsel). Addington is probably the philosophical (and bureaucratic) force behind the administration’s approach as much as anyone. According to Jack L. Goldsmith’s outstanding book “The Terror Presidency,” Addington once said, “We’re going to push and push and push until some larger force makes us stop.” On this view, any cooperation with Congress, among others, is a concession. What this fails to appreciate are the many ways that cooperation with and buy-in from Congress can in fact enhance presidential power while making it less dangerous. Nowhere is this more the case than in national security policymaking, where the issue has become particularly acute in the campaign against Al Qaeda.

Yesterday, you pointed out that the Democrats’ success in the 2006 election made Bush govern better. I agree. That’s what used to be called checks and balances — which unfortunately now depends much more on opposing parties controlling the political branches than on the respective branches’ protection of their institutional powers. And it points to part of what Bush’s approach to governing misses: the important improvement in policymaking that is provided by the knowledge that proposed policies will be submitted to meaningful congressional scrutiny.

To be sure, secrecy has a place in policymaking, especially in the national security arena. But secrecy also has its own pitfalls, and the Bush administration has exemplified them: the exercise of poor judgment by a small, closed group of like-minded policymakers who do not expose their ideas and proposals to critical appraisal, either before the fact or after. That is a perfect environment for ideological conformity and the attendant practical incompetence to flourish. The immediate shift in Iraq policy — firing former Defense Secretary Donald H. Rumsfeld and initiating a major policy overhaul — that Bush undertook even with the prospect of a Democratic Congress is an almost too-perfect exemplification of the dynamics at play here.

Furthermore, the Addington-Bush view of executive power fails to appreciate the fact that executive power constrained by Congress’ contribution, both through legislation and through oversight, can in fact be more effective power. Take, for instance, your description yesterday of the House’s recent resistance to the administration’s desired form of modernizing the Foreign Intelligence Surveillance Act. Beyond the fact that it is ludicrous to imagine that the Democrats in the House are resisting immunity for telecommunications companies at the whim of their pals the trial lawyers (do you really think they’ll pull their support from Democrats if they were to let telecom immunity pass?), the Democrats are seeking sensible regulation of the government’s surveillance powers that will assure the American public and counterterrorism officials that what they are doing is legal and legitimate. That is a much more effective way of avoiding the pendulum swings of intelligence actors between overreach and excessive timidity that come from a less-clear framework. The pitfalls of unilateral policymaking are also playing out in the unfolding, dismaying controversy over torture and the destruction of the recordings documenting the CIA’s use of torture as policy authorized secretly by the highest levels of the Bush administration.

These controversies over central components of the Bush administration’s approach to the campaign against Al Qaeda bring me to a somewhat distinct point I wanted to pick up from yesterday’s discussion. By no means do I mean to downplay the issue of preventing the next attack. On the contrary, while it is not, as Sen. John McCain is saying, “the transcendent challenge” of the 21st century, it is certainly the most urgent, if perhaps ultimately impossible, responsibility of the president. It defines what Goldsmith, the former head of the Office of Legal Counsel who rightly withdrew the original torture memos and sought to rein in the outlaw Terrorist Surveillance Program, calls the “Terror Presidency.” And the Terror Presidency will long outlast Bush.

We know too from Goldsmith’s book that the administration actually spends far more time fixated on preventing the next attack than we might gather from its public pronouncements. And that is going to remain the case for succeeding administrations as well. The fact that there has not been another major attack in the U.S. since Sept. 11, 2001, should not be taken to mean that that attack was a one-off event and that the threat is not real. Nor, unfortunately, can it be taken to mean that the counterterrorism policies the Bush administration has pursued up until now — or will until Jan. 20, 2009 — have succeeded in stopping the next attack. What we know (from published National Intelligence Estimates, for instance) about Al Qaeda’s intentions and relative strength, and what we know about how long its attack plans may germinate, will leave me deeply uneasy for quite some time.

Best,

Jeff

Jeff Lomonaco is an assistant professor of political science at the University of Minnesota and co-editor, with Murray Waas, of “The United States v. I. Lewis Libby.” He current work focuses on the tension between national security and civil liberties in the post- 9/11 period.

Bush would’ve gotten what he wanted from Congress
By Byron York

Jeff,

I think we agree about many of the benefits of divided government. I also think that the Bush administration could have done a lot — a whole lot — more consulting with Congress and would have come out the better for it. For example, had the administration, in late 2001 or early 2002, gone to Congress with its warrantless surveillance plan, Congress would have given it anything it wanted. Some liberals would have blasted Democrats for going along, but Bush would have had the majority of lawmakers behind him.

I also think more consultation would have yielded a better result on the interrogation of terrorist detainees. As far as I can tell, the U.S. waterboarded three Al Qaeda operatives, all within a year of Sept. 11, 2001, when officials were frantically trying to prevent the next big attack that we all thought was coming. My feeling is that the administration should have made clear to Congress that it is U.S. policy not to torture prisoners and that that will always be U.S. policy. But in these three instances, the administration might have said, we have decided to violate that policy, and here’s why. Again, I think Congress would have gone along and Bush would have been in a stronger position.

As for the Bush administration’s seeking to enhance the power of the executive branch: I agree with you that Cheney had a lot to do with it, but I think it’s important to remember from where the vice president was coming. In Cheney’s political youth, Congress had imposed what he and many others viewed as improper or even unconstitutional limits on executive power. Cheney often mentioned the War Powers Act and FISA. He wanted to correct that still-lingering imbalance, and I think he was right to do it. Now, he has bumped into a newly assertive opposition party that controls the legislative branch. So he’ll back off some, or be pushed back. That’s OK.

Now, on this modernizing FISA business: Senate Democrats have come to an agreement with the White House on the proposal. Republicans are on board. And enough Democrats in the House agree that, were it to come to a vote, it would pass. As I understand it, it is only the House Democratic leadership that is standing in the FISA bill’s way, and the main reason is telecom immunity. You write, “Democrats are seeking sensible regulation of the government’s surveillance powers that will assure the American public and counterterrorism officials that what they are doing is legal and legitimate.” Now, how is that goal forwarded by House Democrats’ insistence that telephone companies be vulnerable to multizillion dollar lawsuits for cooperating with the U.S. government’s request for help in monitoring international communications of people with suspected ties to Al Qaeda? No, I don’t think that House Democrats are worried that trial lawyers will withdraw their support if the Senate version of this bill were to become law. But why are they doing this? As far as I can tell, it’s all about lawsuits. (By the way, I think this situation is a little like the one a few years ago when Democrats in Congress tried to block the creation of the Department of Homeland Security over job-protection rules. Was that all about union support? Whatever the case, I think that one cost them an election.)

Finally, I agree that we should all be nervous about another Al Qaeda attack. Perhaps Al Qaeda’s thinking is, “So what if we wait seven or eight years before another big attack?” It is clearly quite patient. So can I say for sure that the Bush administration’s anti-terror policies have been at least partially responsible for the fact that there has so far not been another major attack? No, not for sure. But my guess is they have.

Byron York is the White House correspondent for National Review.