Inherent Problem: Unchecked Presidential Power in the Age of Endless War

Joseph N. Welch (left) being questioned by Senator Joseph McCarthy (right), June 9, 1954.
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Karen Greenberg’s new book, Rogue Justice: The Making of the Security State, offers a stinging rebuke of the runaway presidential power that has undermined justice and due process in the war on terror era. Whether by endless wars, torture, or mass surveillance, “the people with the power,” she writes, have “consistently favored the power of the government over the limitations imposed by the Constitution.”

It’s practically de rigueur to rage against executive action these days, but the invocation of the so-called inherent powers by the White House predates the existence of the presidential mansion. In 1793, George Washington declared the US neutral in the wars of the French Revolution. Congress would later approve of this action but it is still considered among the first over-reaches of presidential power.

Back in this century, both post-9/11 presidents would argue they hold the authority to set aside laws that infringe on executive power, as defined by the president, to respond to special circumstances. But because those circumstances are often ambiguous (“terrorism”) and don’t specify an end date, these presidential actions exist and persist outside the rule of law (even in instances when courts have found parts of these actions unconstitutional). This is not how our government is supposed to work.

Justifying Military Force, Torture, and Surveillance

Claims of inherent power by the Bush administration were used to justify decisions involving the use of military force, as well as setting aside laws prohibiting torture and warrantless surveillance. “The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it was another reach for presidential hegemony,” wrote a vexed Anthony Lewis in 2004. (Rubbing salt into our collective wound, the legal justifications for the secret NSA program were, themselves, classified.)

As a candidate, Obama promised to restore legislative and judicial oversight to counterterrorism operations.   As president, however, he has normalized extrajudicial killing from the Oval Office, created a “kill-list,” and used drones to wage a series of shadow wars in Afghanistan, Pakistan, Yemen, and Somalia. Closer to home, government snooping in the daily lives of everyday Americans under his watch has become more widespread.

Consequently, Greenberg writes, this habitual abuse of power has corroded “the rights to freedom of speech and religion, to freedom from capricious searches and seizures, to due process and fair treatment…” In other words, the privileges guaranteed by the first, fourth, fifth, sixth, and seventh amendments to the constitution. And many Americans don’t realize how entrenched this usurpation of power has become.

The No Fly List

After the senseless attack in San Bernardino, California in late 2015, President Obama called for expanding the use of the No Fly List to prohibit listed persons from buying guns. Many in his party cheered the idea. Others, especially Republicans, criticized the move saying it would violate a person’s Second Amendment rights. Sadly, both sides missed the biggest problem: the list itself.

As a holdover from the Bush administration’s overreach in its counterterrorism efforts, the No Fly List nullifies basic due process rights ostensibly in the name of national security. Persons listed in the database are not provided notice or an explanation for why they are included, and no formal process exists for being removed. These names are then shared with the Transportation Security Agency (TSA) and state and local law enforcement officials without any further explanation.

The list is administered by the FBI’s Terrorist Screening Center, a department that operates largely out of public purview. On rare occasions when challenged in court, its officials routinely say their methodology for choosing whom to include is sound and fight the disclosure of their standards for inclusion.

While the list existed prior to 9/11 (16 names were included at the time), it swelled to over 40,000 at its peak in 2013, according to media reports. Predictably, mistakes were made. “Grandmothers, infants, honorably discharged veterans and the disabled have found themselves barred from boarding. A few notorious cases made headlines, such as when Sen. Edward Kennedy was stopped several times — because, it turned out, there was a “T. Kennedy” on some agency’s terrorist watchlist,” reported Pro Publica.

It also happened to Rahinah Ibrahim. This mother of four with a PhD from Stanford University endured an eight year legal battle to challenge her placement on the list only to eventually uncover that an FBI agent had mistakenly listed her. Oops. A judge in that case said the grievous error was akin to “a surgeon amputating the wrong digit”. Despite her courtroom victory, she is still barred from legally entering the US.

Supporting Terrorism, or Humanitarian Aid?

Or consider Executive Order 13224 which essentially prohibits charitable action in global hot spots. Acting in response to “grave acts of terrorism and threats of terrorism,” President Bush unilaterally granted the Treasury Department the ability to designate and freeze the assets of all persons or organizations determined “to assist in, sponsor, or provide financial, material, or technological support for … such acts of (foreign) terrorism.” Just as with the No Fly List, the government need not present any evidence at trial or provide notice before suspending a person’s rights or seizing their property.

No one would argue against denying support for terrorist groups. However, this measure, intentionally or otherwise, puts charities working to meet the needs of vulnerable populations living or trapped in territory controlled by a terrorist group in a nearly impossible situation. If any aid is captured or stolen by the listed terrorists, including food, water and tents meant for civilians, the charity can be prosecuted for supporting terrorism (and face lengthy prison sentences). The impact of this action on charitable action has been devastating.

In Somalia, where the armed al-Shabaab group controls large sections of the country, humanitarian aid shrunk by 88 percent between 2008 to 2010 despite persistent drought conditions and a worsening famine. Aid groups cited the threat of “criminal prosecution” as explanation.

Because listed terrorist groups are among the warring parties in Syria, delivering humanitarian aid has been made increasingly difficult for charities who don’t want to unintentionally run afoul of Treasury’s regime. This has left a void in parts of the country, which is being exploited and filled by militant groups, a Thomson Reuters Foundation investigation found.

And this framework infringes on the religious obligations of those who want to donate to charities providing services in these places. A 2009 report by the ACLU found these rules “undermine legitimate humanitarian efforts, and can be used to prosecute innocent donors who intend to support only lawful activity through religious practice, humanitarian aid, speech, or association.”

Calls to expand these unchecked powers or to continue to invoke them without first conducting proper oversight is misguided. Unfortunately, there are those who still want the government to use these powers to undermine basic rights at any cost.

Testifying at a congressional hearing last month, the Foundation for Defense of Democracies’ Jonathan Schanzer called on Congress to move Treasury into resuming its campaign against charities (Oh, the irony; asking congress to expand executive power). Frustrated that the Obama administration stopped blacklising charities under Executive Order 13224 in February 2009, Schanzer declared, “This subcommittee has the power to ask why, who should be leading this effort, and whether more resources should be devoted to the problem.”

But is there a problem in need of fixing? “ISIS doesn’t have to create a US NGO, they run a war economy,” Juan Zarate, a national security adviser for counterterrorism under George W. Bush, said. “Al-Shabaab, they are taxing people, they are engaged in other kinds of illicit trade.”

More perfidious, reports suggest Schanzer’s motivation might be less about fighting terrorism and more about targeting individuals with connections to the Boycotts, Divestment, and Sanctions (BDS) movement. Think about that: asking the government to use extrajudicial powers to silence your political opponents’ free speech rights.

Where are the checks and balances?

Neither Congress nor the public has had adequate opportunity to put forward challenges to many of these measures. And while courts have ruled parts of the warrantless wiretapping program, No Fly List, and terror designation process unconstitutional, it can take years for legal challenges to move through the judicial system and their impacts are often limited in scope to the specific cases.

Lamentably, it is unlikely the next administration will move beyond the status quo. But there is reason for incremental optimism: future presidents—and even the current one—can curtail “the distortions of law and excesses of power” by setting a security framework that is consistent with the legal and moral tradition of the United States.

Mechanisms not subject to the rule of law should be off limits because they are inscrutable and rely on the executive saying “trust me.”   But as John Adams said, ours is a nation “of laws, not of men.”