Congress Takes First Step to Impose Limits on Obama's Executive Power

Earlier this week, I wrote about the State Secrets Protection Act of 2008,
which was co-sponsored by numerous key Senators [including Joe Biden
and Hillary Clinton, as well as the Senate Judiciary Committee's Chair
(Pat Leahy) and ranking member (Arlen Specter)], and which was approved
by the Judiciary Committee last year with all Democrats voting in favor.

Earlier this week, I wrote about the State Secrets Protection Act of 2008,
which was co-sponsored by numerous key Senators [including Joe Biden
and Hillary Clinton, as well as the Senate Judiciary Committee's Chair
(Pat Leahy) and ranking member (Arlen Specter)], and which was approved
by the Judiciary Committee last year with all Democrats voting in favor. That bill,
in essence, sought to ban the exact abuse of the State Secrets
privilege which the Bush administration repeatedly invoked and which,
now, the Obama administration has embraced: namely, as a weapon to
conceal and immunize government lawbreaking (by compelling the
dismissal of entire lawsuits in advance) rather than a limited,
document-by-document evidentiary privilege.

Yesterday -- as an
obvious response to the Obama DOJ's support for the Bush view of the
privilege -- Leahy and Specter, along with Russ Feingold, Claire
McCaskill, Sheldon Whitehouse and Ted Kennedy, re-introduced that bill
in the Senate. When doing so, Leahy made clear that the bill was more needed than ever in light of the actions of the Obama administration:

During the Bush administration, the state secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits
. It was used to
stymie litigation at its very inception in cases alleging egregious
Government misconduct, such as extraordinary rendition and warrantless
eavesdropping on the communications of Americans . . . .

We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation.

Sen. Feingold explicitly criticized the Obama administration
earlier this week for its endorsement of exactly these abusive
theories. Several hours before the Senate bill was introduced, several
key House Democrats introduced a similar bill in the House. The ACLU promptly endorsed the bill.

President who seeks to aggrandize his own power through wildly
expansive claims of executive authority ought to be vigorously
criticized. But the ultimate responsibility to put a stop to that lies
with the Congress (and the courts). More than anything else, it was
the failure of the Congress to rein in the abuses of the Bush
presidency (when they weren't actively endorsing those abuses) that was
the ultimate enabling force of the extremism and destruction of the
last eight years.

What we need far more than a benevolent and
magnanimous President is a re-assertion of Congressional authority as a
check on executive power. Even if Obama decided unilaterally to
refrain from exercising some of the powers which the Bush
administration seized, that would be a woefully insufficient check
against future abuse, since it would mean that these liberties would be
preserved only when a benevolent ruler occupies the White House (and,
then, only when the benevolent occupant decides not to use the power).
Acts of Congress -- along with meaningful, enforced oversight of
the President -- are indispensable for preventing these abuses. And
that's true whether or not one believes that the current occupant of
the Oval Office is a good, kind and trustworthy ruler.

My time is limited this morning, but Chris in DC -- a Washington lawyer and regular commenter here -- elaborates on his own blog as to why it is a re-assertion of Congressional authority (not kind and good acts from Obama) that is the paramount priority:

is often overlooked in all these discussions about the specific abuses
of the Bush administration, amid all the resentment toward a particular
president and his Republican party, is how much severe damage these
excesses are doing to the very structure of our constitutional system.
That corrosion of all sources of institutional (and popular) power
other than the federal executive branch is, to me, far more egregious,
more significant, and more difficult to reverse than the control and
individual acts of a certain president or party in power at any given

As Marcy Wheeler notes,
the co-sponsors of this bill are among the most influential in
the Senate. The bill is endowed with the two most precious Beltway
commodities -- bipartisanship (with Specter on board) and the blessing
of a saintly "centrist" (McCaskill). It's a bill that is co-sponsored
by the two leading Senators on the Senate Judiciary Committee as well
as the Chairman of the House Judiciary Committee (Conyers). If they
are serious about imposing meaningful limits on the Obama DOJ's attempt
to shield the executive branch from judicial scrutiny, they will be
able to move this bill quickly. I hope to have more shortly on ways to
push that process along, but more vital even than limits on this
privilege is having a Congress that once again acts as a meaningful
check on executive transgressions. Restoration of that system is of
far more enduring value than Obama's issuance of magnanimous and
irrevocable-on-a-whim decrees.

* * * * *

In yesterday's post focusing on Marc Ambinder's "reporting" yesterday (Armando describes more accurately
what it really is in the struck-through language), I made reference to
Andrew Sullivan's immediate condemnation of the Obama DOJ's embrace of
the Bush position on State Secrets and contrasted that to his defense
of the Obama DOJ yesterday, noting that he appeared to have changed his
views on this matter rather substantially in a short period of time.
Last night, Andrew wrote that I misstated his position (emphasis in original):

my part, I have not changed my mind and never, pace Glenn, stated that
the Obama administration was complicit in torture. I said it should be
very careful to avoid that.

certainly didn't mean to misinterpret what he wrote, and don't think I
did. Just compare what Andrew actually wrote to what I said he
wrote (emphasis added):

Me yesterday: Andrew was "arguing just two days ago that Obama was becoming retroactively complicit in Bush's torture program as a result of shielding it from scrutiny."

Andrew on Sunday:
"This is a depressing sign that the Obama administration will protect
the Bush-Cheney torture regime from the light of day. And with each
decision to cover for their predecessors, the Obamaites become retroactively complicit in them."

I tried
to track his exact language in describing what he said, so it's
difficult (at least for me) to see how I mischaracterized what he
wrote. In any event, I agree with Andrew's general argument from
Sunday that a form of complicity can arise if the Obama administration
is too vigorous and dedicated to keeping Bush crimes concealed and
protecting them from any scrutiny and accountability (and that
complicity analysis should always begin with, and be grounded in, the
United States' obligations under Articles 2, 4, 7 and 15 of the Convention Against Torture,
to which Ronald Reagan bound the U.S. by signing it in 1988). It's far
too early to declare that this has happened, but embracing
the long-excoriated Bush view of the State Secrets privilege (and
vesting power in people to implement views like this) are clearly ominous steps in that direction.

© 2023 Salon