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This Is Pure Authoritarian Audacity

The administration* tries something and, if there's no resistance, tries something more. This time, it's shrouding the Pentagon in secrecy as we saber-rattle at Iran

What is being attempted here is the de facto redefinition of the powers of the Legislative Branch by members of the Executive. (Photo: CHIP SOMODEVILLA/Getty Images)

What is being attempted here is the de facto redefinition of the powers of the Legislative Branch by members of the Executive. (Photo: CHIP SOMODEVILLA/Getty Images)

Right now, every couple of hours, the United States starts lurching toward some sort of military confrontation with Iran, and then it lurches back. It's what The Guns of August would have read like if it had been written by Tom Robbins. It makes the high diplomacy portrayed in Duck Soup look like the Congress of Vienna. The fact that the people calling this particular square dance are John Bolton and Mike Pompeo fills me with confidence in neither my government's competence in this regard nor in its honesty. 

And now, from the Washington Post, comes just the kind of story you want to hear when the United States is flirting with war in Persia.

Acting defense secretary Patrick Shanahan has mandated new restrictions on the way the Pentagon shares information with Congress about military operations around the world, a move that is straining ties with key Republican and Democratic lawmakers. In a May 8 internal memo, which was obtained by The Washington Post, Shanahan lays out the criteria for when Pentagon officials may provide congressional offices or committees information they request about operational plans and orders...

...The memo was shared widely inside the Pentagon but was sent to key lawmakers only after inquiries by The Post. It outlines a half-dozen guidelines, including requirements that military officials and political appointees evaluate whether the request “contains sufficient information to demonstrate a relationship to the legislative function.” The memo urges Defense Department officials to provide a summary briefing rather than a requested plan or order itself.

The memo appears to have been inspired by concerns that lawmakers, who have security clearances, will not safeguard military plans. It calls on officials to assess “whether the degree of protection from unauthorized disclosure that Congress will afford to the plan is equivalent to that afforded” by the Pentagon.

Clearly, somebody in the White House counsel's office—or, perhaps, in the office of the Attorney General, and the person is perhaps standing right at this moment in the AG's socks and underwear—has fallen in mad monkey love with this "relationship to legislative function" dodge, which two federal judges already have laughed out of court in matters concerning the president*'s finances. Now it's being trotted out any time the administration* wants to do something of which the House of Representatives disapproves.

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What is being attempted here is the de facto redefinition of the powers of the Legislative Branch by members of the Executive, who maintain the preposterous position that they themselves can define the limits of congressional inquiries into their own action. This not only turns the Constitution on its head, it rewrites the first two articles thereof in a way that would've sent James Madison diving head-first into a cask of fine Madeira.

This is pure, authoritarian audacity. You try something and, if it works, and there is no effective resistance, you try the next thing you want and see if there's effective resistance against that. And, in this case, the Constitution is unambiguous: the war powers of the government reside with the Congress. Granted, Congress has ceded this power too readily to the Executive over the past 80 years or so, much to the discomfort of many congresscritters and a whole bunch of people in Southeast Asia. But there is absolutely no question that Congress is entitled to ask from the Department of Defense any information that it wants to have. If these new DoD regulations prevail, the president* could station 150,000 troops at the border with orders to shoot to kill, and the DoD would be empowered to deny Congress any information about it.

If these regulations are put into effect, they will almost certainly be shredded in court as soon as a case against them is brought. But, more than that, this is an issue that requires the opposition of the uniformed military, or at least those retired brass hats who are on television all the time. Once upon a time, the executive branch tried to run a war while keeping uncomfortable truths from the Congress and the American people. They hired a young researcher named Daniel Ellsberg to put together a true history of this war so that its architects would have a record of their failure, but that nobody else would. 

Then, one day, that report hit The New York Times, and then it hit the Washington Post. And a previous criminal presidency went to the Supreme Court to stop the publication of that report. It lost. And, siding with the media, Justice Hugo Black wrote:

In other words, we are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. 

Laws, not men, and especially not these men.

Charles P. Pierce

Charles P. Pierce

Charles P. Pierce is a writer-at-large for Esquire and his work has appeared in the New York Times Magazine, the LA Times Magazine, the Nation, the Atlantic, Sports Illustrated and The Chicago Tribune, among others.

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