Below is my column in Al Jazeera on the expansion of presidential powers in the United States. While there is growing recognition of the threat posed by the current powers exercised by the White House, it is important to keep the issue before the public if we are going to realign the tripartite system back to its original balance between the balances.
In the summer of 1787, a crowd gathered around Independence Hall to learn what type of government their representatives had formed for the new nation. When Benjamin Franklin walked out of the Constitutional Convention, Mrs Powel could wait no longer. Franklin was one of the best known of the “Framers” working on the new US Constitution. Powel ran up to Franklin and asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin turned to her and said what are perhaps the most chilling words uttered by any Framer. He said, “A republic, Madam, if you can keep it.”
Franklin’s words were more than a boast. They were a warning. The curious thing about a democratic system is that it contains the seeds of its own demise. Freedom is not something guaranteed by any parchment or promise. It is earned by each generation which must jealously protect it from threats, not only from outside, but from within a nation.
Some 226 years after those fateful words were uttered, the true import of Franklin’s warning has become all too real for Americans. The last 10 years has seen the rise of a security state of unprecedented size and the diminishment of privacy and core protections for citizens. Recently, a federal judge ruled that the massive NSA surveillance programme was unconstitutional. US District Court Judge Richard Leon not only said that the collection of “metadata” constitutes an unreasonable search or seizure, but that the Framers like Franklin would be “aghast” at the very thought of it.
The great irony is that the greatest loss of constitutional protections has occurred under a man who came to office promising to reform security laws and often refers to himself as a former constitutional law professor. An iconic figure for many liberals, President Barack Obama has divided the civil liberties community and expanded both the security state and his own unchecked powers. He has taken actions that would have made Richard Nixon blush – from warrantless surveillance to quashing dozens of privacy lawsuits, to claiming the right to kill any citizen, on his sole authority. He has also rolled back key international principles in expanding drone attacks and promising not to prosecute officials for torture.
Republican Senator Lindsay Graham scoffed at the notion that privacy is even relevant since only a terrorist would object to such powers.
War on privacy
With his healthcare programme mired in bureaucratic snafus and issues like gun control and immigration floundering in Congress, Obama is entering his final years in office with few clear successes. One of his most notable and ignoble successes has been in his war on privacy in the United States. Obama has not simply ordered massive surveillance of calls and emails of citizens, but he has campaigned to change people’s expectations of what privacy means. His administration advocates a surveillance-friendly form of privacy in a new fishbowl society where the government can track citizens in real time from their purchases and messages. Obama has attempted to convince citizens to trust the government and that they have nothing to fear because he will personally guarantee that these powers are not abused. At the same time, he has opposed any effort to get judicial review of these programs – beyond a laughable secret court with a history of rubber-stamping surveillance demands.
The result is a surveillance state of unprecedented size. Whistle blower Edward Snowden is now a hunted man under the protection of Russia. However, while Obama is demanding Snowden’s arrest, his Director of National Intelligence James Clapper has admitted to lying about the surveillance programmes before Congress. Yet, the Obama Administration has refused to investigate let alone prosecute him for perjury.
Snowden’s disclosures have revealed a massive surveillance system under Obama. The disclosures show that the US has intercepted communications of its closest allies like German Chancellor Andrea Merkel while intercepting calls around the world – 60 million calls in Spain alone. For US citizens, the government has created an almost total transparency in the collection of hundreds of millions of calls and emails. These calls are stored and security officials have instant access to information on the location, time and duration of communications. The Obama Administration has also put journalists under surveillance in an assault on the freedom of the press.
Other politicians have chimed in that only people with something to hide would be concerned over such surveillance. Thus, Republican Senator Lindsay Graham scoffed at the notion that privacy is even relevant since only a terrorist would object to such powers.
‘Online promiscuity’
Of course, the government must often read your mail and listen to calls to determine if you are a terrorist…or just a target. A recent report documented how the National Security Agency has been gathering records of online sexual activity to be used to harm the reputation of people considered radicals. Among the targets is at least one individual identified as a “US person”. The NSA is gathering dirt such as “viewing sexually explicit material online”, and “using sexually explicit persuasive language when communicating with inexperienced young girls”. Shawn Turner, director of public affairs for National Intelligence, responded to media requests with little more than a shrug, saying such activities “should not be surprising” since the “the US government uses all of the lawful tools at our disposal” against people deemed enemies of the state. Of course, it is available at their disposal because of increased and unchecked powers assumed by this President.
Inside Story – The diplomatic cost of US surveillance
This “watch list” apparently includes people with unpopular views. The published documents refer to one target as attracting the NSA’s ire by arguing that, “Non-Muslims are a threat to Islam,” and then identified his vulnerability as “online promiscuity”. Another academic dared to write in support of the concept of “offensive jihad” and so the NSA targeted him for his “online promiscuity” and noted he “publishes articles without checking facts”.
Bush Administration officials are already applauding Obama for his administration’s gathering of dirt on targeted individuals. Indeed, supporters are now citing the president’s “kill list” as a rationale for this new controversial system under a lesser evil rationale. Stewart Baker, former general counsel for the NSA in the George W Bush administration, insisted that, “on the whole, it’s fairer and maybe more humane” than vaporizing them.
In a prior conference, Obama repeated the siren call of authoritarians throughout history: While these powers are great, our motives are benign. So there you have it. The government is promising to better protect you if you just surrender this last measure of privacy. Perhaps we deserve little better. After all, it was Benjamin Franklin who warned: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and has testified before Congress on the dangerous expansion of presidential powers.
Drone strikes by US may violate international law, says UN:
(Guardian, 10/18/2013).
I’m in agreement with Darren and laser…..
What has been thrown away in the name of security will take more than an undoing of the McCarthy years….. When will someone in power take on those with power….
Arthur Randolph Erb 1, January 5, 2014 at 8:53 am
You said:
One can make an argument for anything, including an argument that “torture is good”, but making the argument is not the end of the matter. In every case someone makes the wrong argument and loses the case thereby.
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You said:
Doing wrong by disobeying the constitution (e.g. 4th & 5th Amendment) is supreme wrong not supreme right. Like internment of Americans without cause during WWII. Calling it legal is psychological denial, not an argument.
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You said:
You forgot the 5th Amendment and that courts with juries are the deciders of who did what when, not the Executive or Congress. If that does not trouble you, there are job openings at the military NSA that should last longer than Automobile Factory jobs, what with people not being concerned about the rule of constitutional law and stuff.
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You said:
Tacit approval by dictatorial governments of illegal acts is not something a sane government should brag or crow about.
Dredd, the FACT is that suspending the writ of habeas corpus is a part of the US Constitution in case of invasion or civil insurrection. The FACT is that the SCOTUS has repeatedly ruled that the government has that power as a legitimate power under the Constitution and that the internment of people during WWII was perfectly LEGAL if unwise and unjustified in some cases. So that issue has been long decided. The other legal question about interning persons has likewise been settled law ever since 1798 which you will note is the year in which the writers of the Constitution had power. During WWII, German saboteurs landed in the US. They were caught, two of them were in FACT US citizens and FDR established a military tribunal for them. They were found guilty and one US citizen was executed with the blessing of the SCOTUS.
I did not say torture is good or lawful, so save your strawman arguments for the more ignorant readers. I also did not say the NSA spying is legal either. So save your W Bush logic of your are with us or against us illogic for others. You also have no sense of reality since a person has to be caught before any trial can be held. To say that a combatant must be given a trial in our courts before any punishment or killing them can occur is absurd. In such a view, the police cannot use deadly force against ANY person under any circumstances. There is NO court or government or law on earth that has such a view. In fact, your objections are bogus in the extreme. If you are indeed serious about this view, THEN it requires the US to take an extraterritorial view of US law and that the US has the RIGHT to invade any foreign country, to catch or kill a wanted US citizen. Is that any more reasonable than using the US drones to kill them? Which do you think is less invasive?
I recall also that during WWII, Ezra Pound was an active fascist who made broadcasts during WWII for Hitler and Mussolini. He was arrested, and imprisoned after the war for his activities. Would it have been illegal for FDR to have the 15th Air Force drop some bombs on Pounds villa? I doubt it. It would have saved us some trouble and time as long as it did not distract from more important targets. The Brits arrested and executed the Brit known as Lord HawHaw who made propaganda broadcasts for Hitler. Think that was unfair or that the Brits should not have bombed him if they knew where he was? I assume that if the Brits had bombed Hitlers dinner parties that too would arouse your ire since it would kill a number of women and children.
Most rational people would not have any problem with such actions which is why there is so little outcry about the drone strikes. I also recall that the people who are being bombed are the ones who murder thousands of innocents, so I am not too troubled if their innocents get the same consideration. The majority of people in Pakistan, Africa, India, Yemen and other people live in the fear of being murdered as they go about their daily lives, yet the people in the ungoverned areas who are being hit by drone strikes should be exempt from similar fears? I don’t think so. My objection to drone strikes is that they miss their intended targets in many cases. Of course, the US military does not like that fact either since it is a waste of perfectly good bombs on the wrong targets.
It would be a good question to ask how come Al Jazeera looks out for the American people better than any large USA based reporting service, in total contrast to radical Muslims & our radical US government. Same with RT whose adjenda seems to be to expose the truth, rather than give a Russian viewpoint. Could it be that our government has it in for rational Muslim ideals & a more rational Russia (we’ve seen that with Snowden’s protection) & the best way to do that is to expose the truth to Americans in the hope they can curb their government? Either that or simply finding a safe voice for rational America for its own sake.
A very good subject to bring up & you cover the first several paragraphs very well, particularly on the incredibly antifreedom stance of Obama from the NDA Act to legalizing Drone Strikes in the USA. After that it gets a little lost for my tastes; the important things have already been stated. No problem with Al Jazeera if it reports better than our own media; so far that is the case; RT also, even tho it stands for Russian Television.
If you criticize a president, you must compare him to past examples. The job remains the same. It is those that occupy the office that come and go. After a few years and continuing, it becomes apparent to those who take the time what the particular president did, why, and how well.
bush bungled two wars. The Afghanistan war will continue to cost untold innocent lives well after the US and its allies have left. The job was not done properly due entirely to the commander in chief and his decision to depend on ‘shock and awe’, his prediction that every Afghanistani had an American flag under their bed and was waiting for the day the GIs would come marching into town. The Iraqi war was not only unnecessary and also bungled from the beginning. There was no need to invade to effect a regime change. Selective and surgical bombing, a closed airspace over the entire country, and indications that a moderate replacement would be supported would have been all that was necessary to topple Saddam. After all, that is how he got into power. However, for eight months after the regime was eliminated, the US military stood by and allowed chaos to take its place. The Iraqis took control through any means.
Carter put America on track to recognizing its weaknesses. He mandated emission and milage controls, had Detroit not been let off the hook by Reagan, would have kept the US auto industry competitive technologically. He didn’t pay enough attention to the economy in the short term. Reagan lowered taxes and increased spending, created an enemy to pull the country together, and later regretted it as the country slipped into a seven year recession. He was a flash in the pan of Dr. Feel Good. The Iran Contra affair makes Benghazi seem like nothing.
Obama is not, by any means, perfect. He has missed the point on several issues or maybe these moves are just the first of many that have to be made in the face of the opposition before the desired results show up and we can all go aha.
I could go on but the point is, compare the deeds of each president. I realize that we only get one at a time, but America is shaped by them all.
P.S.
>Some 226 years after those fateful words were uttered, the true import of Franklin’s warning has become all too real for Americans.
No, that’s inaccurate. We’ve only had universal suffrage in a substantive sense since the Civil Rights era.
Since Louis Powell launched the conservative backlash against decades of progressive reform, the best we can say is that Franklin’s warning has only been relevant since 1970 or so.
>In the summer of 1787, a crowd gathered around Independence Hall to learn what type of government their representatives had formed for the new nation.
That’s kind of a myth, and an insidious one at that. You’re useless as a liberal or progressive until you come to terms with this.
We had a government, called the Articles of Confederation. The Framers met in Philadelphia with “the sole and express purpose” of amending the Articles of Confederation. They returned instead with a whole new government, and bypassed the existing amendment procedures to enact their new government. Sounds a little like a coup, no?
The Constitution was not popular. Turnout was very low, and largely restricted to urban areas. Also, enfranchisement was low: women couldn’t vote, blacks couldn’t vote, wage laborers didn’t earn enough money to vote, and subsistence farmers didn’t own enough land.
All told, maybe about 15% of the total population could vote. The vote to ratify was extremely close in may areas. Several states refused to ratify, and did so only for fear of being excluded from the new Constitution’s economic security.
When you look at things by the numbers, “WE, the People” represented the will of maybe 7% of the population.
Justice Marshall in his biography of Washington wrote:
In arguing for a new Constitution to replace the Articles of Confederation, Founding Father Elbridge Gerry complained to the Constitutional Convention on May 31, 1787: “The evils we experience flow from the excess of democracy.” Founding Father Edmund Randolf also complained about the “turbulence and follies of democracy.” In Convention, Founding Father John Dickinson argued against expanding political enfranchisement: “The danger to free governments has not been from freeholders, but those who are not freeholders.” Dickinson went so far as to claim that a constitutional monarchy was “one of the best Governments in the world.”
Founding Father Alexander Hamilton, in Convention on June 18, 1787, expressed his belief that “nothing but a permanent body can check the imprudence of democracy … you cannot have a sound executive upon a democratic plan.” In The Federalist #10, James Madison wrote: “democracies have ever been spectacles of turbulence and contention, have ever been found incompatible with personal security and the rights of property.”
The Framers were not in the least motivated by a desire for democracy. They feared the idea. The Constitution was their plan to prevent the emergence of Democracy, and they were quote good at their planning. It took 200 years for universal suffrage to become a reality.
While I agree with most of what Prof Turley has to say on things, he goes overboard on remembering Nixon and his powers or claims of it. As one poster noted, Nixon stated that if the President orders it, it is legal. Now THAT is FAR worse than anything Obama has done or claimed. In FACT, Nixon did order the killing of US citizens abroad because they discovered things Nixon wanted kept secret. Those citizens were not engaged in violent armed activities, nor had over 3000 people died as a result of their activities. I think that is a large difference between the conditions to say the least. Nixon used his dictatorial powers to screw his political enemies for no other reason that they were a threat to him politically, not because of an armed assault on the entire people of the USA.
He also has to ignore the successes that Obama has had in his term of office. This President is the best one of my lifetime in terms of personal impact on my life. The only President who had a more immediate and not so benign impact was LBJ and Vietnam. Thanks to Obama I got my job back with the cash for clunkers, and the government save of the auto industry. My wife finally got health care insurance thanks to Obama care which is something which would have been impossible before. Not bad for a guy who you have to denounce on other grounds
One can make a case for the US in fact being at war, and meeting the conditions for suspending the writ of habeus corpus Perhaps Prof Turley might be mollified if Congress makes a declaration of war against Al Qeada, but I doubt it. It would make such actions perfectly legal in that case, just as the internment of Japanese Americans, and German Americans was legal in WWII..
I am not at all troubled by the US killing American citizens who are supporting or aiding materially the terrorists who are using armed actions against us. This policy is only applied in areas where there is no government agency the US can use to apprehend such persons. He is NOT using drones to kill Americans in Western Europe, nor any other place where governments CAN bring these people to court. As I have pointed out, the US drones strikes are done with the tacit APPROVAL of the concerned governments. These governments have more than adequate means to militarily stop such attacks since all it takes is a C-182 and a large caliber rifle to shoot them down. As for the “rights” of these Americans, they are fully aware of the fact that they are in a combatant area, and that they are subject to military attacks as a result. One has to remember that the UK and the US executed US and UK citizens during WWII who adhered to the enemies of us and who did nothing more than speak or write in support of these fascists. The fact is that if you choose to stand next to Hitler, or live next to a war industry, you have no expectation of a claim of being a civilian and that you should not be a target along with these legitimate targets. Let’s use some common sense in this.
The claims against the NSA are another matter and need to be addressed by legislation and penalties.
There is some dust-up over the military NSA spying on congress:
(Guardian).
Darren Smith 1, January 5, 2014 at 6:31 am
This article in al-Jazeera summed up just about everything 2013 had to offer from the executive branch of our government.
Many now believe the biggest threat to our liberty is not from foreign powers or terrorists, it is the elected leaders of our federal government, either by their actions or their inactions.
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Bingo.
“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” – James Madison
We had gifted forefathers and foremothers.
JT quoted Franklin “if you can keep it” in the context of domestic enemies.
Domestic enemies of the U.S. Constitution.
One of our problems is that we fail to recognize that enmity against fairness and freedom as dementia, i.e., a cognitive disease.
A further extension of that problem is that we never developed a group-oriented discipline, beyond individual psychology, to deal with that dementia.
I mean that in the sense of the group psychoanalysis that Freud advocated:
(Social Dementia Causes Heated Misunderestimations – 3, quoting Freud).
Why is Congress so quiet?
More particularly, why are the Republicans (who have taken any and all opportunities to fiercely attack Obama) so quiet?
Cantor, Boehner, McConnell, Cruz, McCain. They’re not exactly shrinking violets. Why are they so quiet?
And where is Rush, Fox, and the TeaParty on this?
Snowdon is “hunted”? They’d like him back, but I haven’t seen any evidence that there are agents in Russia trying to track him down. But on the other hand, maybe there is secret delight that he is struck in a freedom loving country like Russia. At any rate, it would seem to be a political nightmare to bring him back here extra-legally. No, much better he stays under the “guardianship” of Putin.
Might one suggest that there is more than one branch of the government involved in this mess?
Don’t the courts also play a part?. There’s Leon, of course. But IIRC, more recently another Fed. Judge had an opinion that contradicted Leon. (I’m not a lawyer – so apologies if I am wrong) And haven’t there been numerous courts that have upheld all the laws that have allowed unchecked growth of the NSA?
And doesn’t Congress keep authorizing the Patriot Act?
BusterTroll,
Right on! When a president is viewed as being weak, not much gets done. Just look at Jimmy Carter. He got a peace treaty struck between Israel, the merchant of war, and Egypt, clearly now also a merchant of domestic discord. Yet because his “got bin Laden” day failed to free our Iranian Hostages crises, he is viewed as a failure.
Some one out there, anyone out there, explain to me why having my phone call numbers, dates and times recorded for possible future reference to tie me into conspiracies somehow invades my privacy? Only if I have something else to hide would I claim that it does.
Justice Holmes 1, January 5, 2014 at 5:46 am
Al Jazeera? Will you soon be writing a column there on the hazards of theocratic monarchies? Just asking. I don’t get the the current rush to join the Al Jazeera crowd but to each his/her own.
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“The virus is not the capsid. Clothes don’t make the man. Don’t judge a book by its cover. The message is not the messenger.” – Anonymous, et al.
Don’t conflate the message with the messenger.
Thumbs up to Fox News but not to Al Jazeera is journalistically unbalanced (but common).
On to the merits …
JT has spoken truth to power.
The wholesale destruction of constitutional principles that have traditionally existed in our supreme law for ages, and replacing them with bizarre authoritarian, despotic, totalitarian garbage from the dark ages past, is the greatest threat to our nation in who knows how long.
JT is spot on in this post and in his column in Al Jazeera.
We need to lose the parent-government meme (That is Not My Daddy).
Buster, interesting that Rand Paul is filing suit that will have work its way through the courts. Well ok. But the guy is a senator. Last I heard they can actually write bills. Wouldn’t it make sense that he try to write a bill that greatly restricts the NSA?
And I’m sure it’s only a very minor point that he is using this suit as a marketing tool to solict from the public names and addresses. I’m sure this information will be of little use to him should he make a run for the presidency.
Professor, one note. Clapper was not under oath (Feinstein generally refuses to place Admin officials under oath at SSCI) when he gave the duplicitous answer to Sen. Wyden. So the correct crime for Clapper is False Statements under 18 USC §1001 not perjury.
This article in al-Jazeera summed up just about everything 2013 had to offer from the executive branch of our government.
Many now believe the biggest threat to our liberty is not from foreign powers or terrorists, it is the elected leaders of our federal government, either by their actions or their inactions.
Keeping our country knowledgeable and safe from enemies Domestic has been the most arduous of tasks; because you must work with the system damnation bent of becoming the enemy – in order to maintain checks-n-balances.
I have been reading the biography of Lyndon Baines Johnson written by Doris Kearns Goodwin back in the 1970s. It is a very good book. Many of us dissed LBJ because of the war. We overlooked his achievement with the Civil Rights Act of 1964 or the Voting Rights Act of 1965. When he was in the Senate and indeed ran the Senate, he said that it was foolish for the members to think that they could pass an agenda. He said that it took a strong leader in the White House to put forth an agenda and pass it.
With the NSA problem we have a similar problem as the Vietnam War era. We have a weak Congress and a President who fears this generation of McCarhtyites who will call him Soft on Terrorists. Had Obama been in office in 1965 like LBJ he would be getting the Soft On Communist criticism from the RepubliCons. But as I watch the trash float by on this stream in front of me, I, as a troll, must say that our current problem is not to be cured until we get a better Congress.
Today or the next day we await a copy of the Complaint that Rand Paul is supposed to file in Court against the NSA. I will scrutinize it. It needs to recite all aspects of the rights of privacy as referenced or which can be elucidated from the Constitution. He needs to cite international law and conventions. The Roberts Court is not going to overturn NSA crimes and misdemeanors. We need a revolution. May Day is coming up. Does anyone have the conviction and energy to March on Washington?
Al Jazeera? Will you soon be writing a column there on the hazards of theocratic monarchies? Just asking. I don’t get the the current rush to join the Al Jazeera crowd but to each his/her own.
The expansion of executive powers and the refusal of Dems to object to it is and the GOP’s embrace of it are major elements element in the decline of freedom in this country. When Richard Nixon said: When the president does it, its legal., many of us cringed, screamed and shook our heads at the arrogance. Unfortunately, those words now seem to be a accepted view of many in government expanded to include government agencies like the NSA. Whenever one man or one group views themselves as above the law, humans suffer.