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Obama and the Imperial Presidency
The Bush administration has worked hard to increase presidential power. Will Barack Obama give it up?
Barack Obama enters the White House with more constitutional and legal power than any president in US history. One of his biggest problems will be figuring out what to do with it.
For seven years, the Bush administration has tried to increase presidential power through secrecy and unilateral action, claiming constitutional authority to disregard statutory restrictions and congressional oversight. Many of its gambits backfired. But despite its clumsiness, the Bush administration did not materially weaken the American presidency. Far from it. Obama will begin with broad new powers over domestic and international surveillance and congressional approval for military tribunals and existing interrogation and detention practices. He will oversee a new bureaucracy devoted to homeland security and greatly expanded intelligence services. He will command military forces and state-of-the-art weaponry strategically placed around the globe. And thanks to the recent bail-out bill, Obama's new Treasury secretary will enjoy enormous discretion to nationalise the banking industry and reshape the financial sector.
To top it off, Obama will begin his first term with overwhelming public support - if not outright adulation - and a Congress controlled by members of his own party. No matter how much the current president damaged the prestige of his office, his successor will be all the more powerful and influential simply by not being Bush.
Many of the problems Obama will face stem from the presidency-on-steroids he inherits. First up is what to do with the Guantánamo detainees. If Obama closes the infamous base, he will either have to release the detainees or bring them to the US for trial. If he chooses the latter approach, he will have to decide whether to use the ordinary criminal process or devise a new set of national security courts to replace the defective military tribunals Congress approved in 2006. Either solution will pose enormous technical and logistical problems, and separate national security courts create significant risks to civil liberties.
Next, Obama will have to decide whether to rescind a series of secret opinions and orders authorising the Bush administration's detention, surveillance and interrogation practices. Secret laws were a hallmark of the Bush years. For all the criticism of Bush administration policies leaked to the public, there may be many others even more morally and legally troublesome. Obama will face difficult decisions about which decisions to rescind and which to retain.
Giving up power is harder than it sounds. Obama's attorney general will have to craft new limits and new methods of accountability. This, in turn, may invite intense scrutiny of what happened in the immediate past. Both Congress and the public may demand to know about secret orders and opinions authorising torture, domestic spying or other forms of illegal activity. Obama and his advisers will have to decide whether political prudence and national security require them to conceal the previous administration's dirty little secrets.
Indeed, the more we find out about the excesses of the Bush years, the louder will be the demands for investigating and prosecuting Bush administration officials for violating national and international law. Whether or not such prosecutions are deserved, they threaten to derail the next president's positive agenda. Political opponents will scream that the new administration is criminalising ordinary politics and punishing patriots. Bipartisanship will quickly become difficult if not impossible. This may tempt Obama to sweep past wrongdoing under the rug, hoping that he can reform the executive branch entirely in secret. But secret reforms raise many of the same problems of accountability as the secret laws they replace.
Finally, Obama has been handed new tools for an ever-expanding national surveillance state, which employs information collection, collation and analysis as key methods of governance. Most members of Congress have no idea of the new powers they gave the president in the byzantine Foreign Intelligence Surveillance Act Amendments Act of 2008. Many parts of the new law are either sketchy or opaque. Most of the details will have to be worked out by - you guessed it - the executive branch.
The Bush years demonstrated that congressional oversight of intelligence gathering was rarely effective, and with judicial review significantly constricted in the new surveillance act, the civil liberties of Americans will depend heavily on how the Obama administration implements the vast new powers it has been given. It can create a series of checks and balances within the executive branch to limit overreaching and prevent abuse. Or it can shape these new institutions much as the Bush administration wanted: to maximise discretion and avoid accountability. It is largely up to the new administration how to proceed.
Armed with abundant public support, a friendly Congress and vast new grants of authority, the next president holds the fate of the country in his hands. How he tempers his power may be as important as how he wields it.
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30 Comments so far
Show AllLord Acton: "Power tends to corrupt and absolute power corrupts absolutely."
Someone should write that on two small pieces of paper and slip them secretly into the pockets of the blue suits Bush and Cheney will wear as their bodies lie in state after they've shuffled off out of this dimension. When they arrive in the Underworld, horrified, and demand to know what the bleep is going on, they will be told to reach into their pockets.
A very wise 16 year old said to me "Corruptible people are attracted to power."
That is true. Few politicians on capital hill are worth the salary we pay them.
I think congress and public service in general should be volunteer-only. No salary, just free housing, free wheels, free jet fare, and a nice per dium. Then, no accepting money from any company or we throw you out of congress immediately and prosecute you for fraudulent representation of the people! 100% transparency baby!
Give the power back to the people! Or hell, let's take it back!
.Sadly, those who think themselves uncorruptable are also susceptable to the allure of power and money. That is a principle reason why we the people need to remove the temptation by reforming the system.
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We see things, not as they are, but as we are.
Anais Nin
"we the people need to remove the temptation by reforming the system"
Absolutely! But how? If we work within the existing framework how can we be effective? If we do not, we can be shut down and corralled as treasonous or even as terrorists, attempting to disrupt or even overthrow the government.
Amendment X is the only constitutionally lawful opening we have to organize and apply power apart from the three branches. Yet nobody seems to want to talk about it. But show me another way? Amendment X is in black and white, and essentially guarantees us, the people, the right to lawfully challenge the balance of power and to pursue reforms. And why not?
I'm doubtful, even if we could, that bringing a third party to power would be effective within the current system. So what else is there?
Sioux Rose
Even if Obama modulates the laws Bush essentially illegally confiscated, only to find lawyers to write half-witted legal briefs to "justify" such behaviors, they still remain as precedents that FUTURE presidencies may seek to deploy UNLESS they are rendered illegal under no uncertain terms. The Bush presidential legacy is the moral equivalent of cleaning up Iraq after depleted uranium has become part of its immediate atmosphere. What a task!
It might be easier to roll back executive orders and those silly signing statements than to clean up Iraq. I think I like Chomsky's suggestion of reparations for Iraq.
Yes, some of the damage can never be fixed.
This article alleges that the Dubya Regime started increasing presidential power after 9/11.
History shows that it started with Dick Cheney's clandestine energy policy development as soon as the Regime took power.
Although 9/11 provided convenient rationalization for increasing presidential power, the process had plenty of momentum prior to that date.
Agreed. The Bush criminals, err... I mean cabinet... knew exactly what they were going to do long before stepping into the Oval Office. They already had the basis of the Patriot Act sketched out and had plans pre-drawn to invade Iraq a year or so before the inauguration. Wouldn't surprise me at all to find out they're all closet Mossad agents.
First, use the power he inherited to rescind every law, secret opinion and order Bush made, then institute direct democracy.
I have high hopes for Obama, but it will take time. Let's agree not to be too impatient.
After eight years George is leaving the US falling apart. I just saw him on TV grinning and admitting he had made some mistakes in his STYLE of leadership.
He obviously didn't have a care in the world about the mess he made.
This guy is either blissfully unaware of reality or a total psychopath.
How about blissfully psychopathic?
How fitting! LOL
nah, just "W" the Republican paying off the neocons, for 8 years and letting Cheney have his way. To say he has a psychiatric excuse, lets him off the hook.
More like psychopathically blissful?
Think about it. How can the sneering simpleton be so blissful in the midst of such a debacle? (This started off as a joke--your comment was funny--but quickly I can't help but drift into real seriousness...)
Think of Eisenhower who cried and prayed before D-day (I think it was) because he knew many of the men participating would not survive. That mothers and fathers, wives and girlfriends, sons and daughters, etc., etc., would never see their loved one again. As a normal, decent, human being, he found that reality overwhelming.
Now contrast that with Bushy-boy who was all jokes and in a perfectly perky, playful, buoyant mood as they were applying his make-up before he went on live TV to announce... a war...in which, necessarily, thousands (at the very least) would suffer horrendously and die. He was convinced this war would be good for his popularity, so he's in a jolly good mood.
But as awful as are these people, they're not 'psychopaths', as much as we like to insult them with that nasty word. No, they're not sick; just insensitive, greedy a**holes. Members of the dominant class (rich people, in a nutshell) have always been able to treat their slaves/serfs/workers with extreme callousness, and for the sake of their material benefit have never had any problem starting wars that ravage whole populations. Like slave owners and racists using even the bible to rationalize their actions, insensitive rich people justify the horrors they perpetuate by shielding themselves from the gory details and hiding behind some abstract rationalization--it's the way of nature, the strong eat the weak, etc.
Bush is scum in an extremely long line of scum, greedy people willing and able to do anything to advance their cause, and who often descend into sadistic behavior as a result of the emotional cesspool they create for themselves and inhabit on a daily basis.
I skip over the profanity. I do agree they are not sick. There are no heroes. Eisenhower had an affair with his driver. "W" had an opportunity to go to Vietnam,but chose to ...? Where was he?
Would you give it up if you had it?....... I thought not.
Now we know why the Democrats refused to place any checks on Bush's power seizure. They made sure that the powers were still in place for their own use.
My congressperson absolutely refuses to discuss the issues of the Patriot Act, illegal wiretapping, Military Commissions Act, SPSD 51, and so on and so forth at Pelosi's bidding.
They refused to impeach over the legality of these moves so their boy would not be impeached if he used them.
Maybe the GOP rep from Georgia, worried about a power grab by Obama, knows something we don't.
But I could be wrong !
Wow! No wonder all the suits are looting and scooting to beat the inauguration.
Let's stop them at the border and take back our money.
FIRST, he should turn those "secret laws" against the ones that wrote them, THEN recind them, after they are all swinging on the end of a rope.
"The only means of strengthening one's intellect is to make up one's mind about nothing, to let the mind be a thoroughfare for all thoughts." - John Keats
"Ignorance of the "Secret Laws" is no excuse!"
"The only means of strengthening one's intellect is to make up one's mind about nothing, to let the mind be a thoroughfare for all thoughts." - John Keats
Um, wasn't the imperial presidency allowed by Congress to exist under President Bush these past 8 years? Congress still has the power to limit the president's powers if they get their butts off the couch and do their job that we the taxpayers pay them to do !
Um, wasn't the imperial presidency allowed by Congress to exist under President Bush these past 8 years? Congress still has the power to limit the president's powers if they get their butts off the couch and do their job that we the taxpayers pay them to do !
I believe Amendment X provides the opportunity for a citizens convention to be formed, for the express purpose of identifying and defining specific limits to the reach of power of the federal government, or conversely for enumerating and asserting rights and broad powers reserved to the people. This simple unassuming amendment intends that the federal government may not expand its powers except by the taking of them from the people and/or states. As such, by properly organizing and ratifying citizen causes under Amendment X we the people could feasibly bring our own legal investigations and challenges to these matters. The founders did not intend that all legal rights and powers were allocated within the domain of the federal government and its 3 branches, quite the opposite actually. And there is nothing to say that a formal organization of this nature could not make the same type of assumptions to power as have Bush and Cheney.
A judge I knew once told me that anything is legal until it is challenged. Our Congress has done little to challenge Bush's power grabs, but that doesn't mean they aren't challengeable. I cannot see why an organization formed under Amendment X for this purpose could not lawfully mount such a challenge. And wouldn't it be interesting to see the government (which branch exactly?) challenge the right of this nation's citizenship to convene under Amendment X for such a constitutionally protected purpose? That would be something indeed, wouldn't it?
Amendment X is the public's explicit constitutional right to challenge the balance of power.
Call me a dreamer...
Rescind
Investigate
Prosecute
Convict
Pardon
Move ON!!!
All of these comments are obviously true sentiments of people who care about their country and its future.
From my own observations, whether Mr. Obama makes any changes or not is irrelevant---if the USA does not make the needed changes----and soon---the world will step in and make them----without the approval of the USA.
America and most "Americans" have become a dangerous rogue nation, unworthy of respect or future considerations of existing in the present manifestation.
Whether one has studied history in any detail is irrelavant ---human nature would inform the "searcher of wisdom" that Humanity has little or no tolerance for the likes of what the USA represents to the world. History will show that the world will act upon its fears----and the USA scares the hell out of most of the world----and for reason.
The "Natural Law" expressed in the form of "self preservation being the most powerful force known" will make the world move to erase the potential danger the USA presents to the world.
On the other hand---humanity universally admires and often loves a "reformed offender"----so there may be some hope for the USA------------if it "reforms"----and soon.
There just may not be much time left.
Native Son: Know who is a fan of "natural law"? Clarence Thomas. I watched the confirmation hearings on tv, long long ago.
I'm wondering what you mean. Native Son used 'Natural Law' (not quite sure why the capitals...I know it's not that important, but...) as being simply self-preservation.
Clarence Thomas was an extremely reactionary conservative who vehemently rejected affirmative action. (Is that what you are referring to?)
He was appointed to the SC by papa Bush in a nasty move because the Black member of the Court had usually been a liberal, and here Bush appointed a profoundly reactionary, undistinguished Black judge with a very thin resume. He was only there because of his hard right-wing positions, and he seemed perfectly UNPREPARED for the SC.
His personal philosophy, he bragged, was to pick yourself up by the bootstraps and work really hard to succeed, and none of this affirmative action. (The hearings degenerated into a he-said/she-said 'trial' for Thomas after Anita Hill's riveting testimony that he had harassed her sexually.)
As dicey as some affirmative programs might be, the main idea seems pretty sound: a group has suffered from discrimination and has suffered economically and socially as a result. Society therefore gives members of this group an extra hand at achieving normal social goals (educational, vocational, etc.) to help raise the group to the level of the dominant majority.
Thomas's rejection of that is what you mean by him being a 'fan of "natural law"'...?
getreal:I was remembering the confirmation hearings, that Clarence Thomas cited "Natural Law" as legal basis for much of his thinking. I personally am for affirmative action and reparations, with African-Americans defining what reparations should be.
Without getting much into the spectacle of bashing Anita Hill at the Confirmation Hearings (I do think she had credibility and there were other women who did not get called to testify.) I think Clarence Thomas, after benefit of affirmative action, decided it was a bad thing for other people. I think "picking ones own self up by the bootstraps" is Republican talking points for "I got mine, you go get yours.". I also think Tim Wise has done fine work on how whites have benefited from racism, even if not individually a racist. I am sorry I wasn't clearer.