On Presidential Powers to Destabilize Entire Regions

In his latest installment on Trump and the powers of the American presidency, Ben Wittes manages to avoid calling his adversaries delusional while making delusional arguments himself, which makes for a much more intriguing post. In this one, he shifts his focus to the topics his adversaries had originally focused on, which Wittes calls “U.S. arms and war powers” but which for the moment I’ll call “national security.”

Wittes argues that the degree of authority granted the President in matters of war is scary, but less scary than not having such a powerful President.

It was a few years ago, on a panel at American University’s Washington College of Law, that I heard Brad Berenson—who served in the White House Counsel’s office under President Bush—make an arresting statement about the American Presidency.

The Presidency, Berenson argued, is an office of terrifying power. There is no legal question—at least as a matter of domestic constitutional law—that the president has the authority to order a preemptive nuclear strike on Tehran. Indeed, there is really only one thing, Berenson said, that is scarier than a president who has such power in his sole command: a president who does not have that power.

[snip]

“Energy in the Executive,” wrote Hamilton, “is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. . . .” The reason? “A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” Translation: If you want government to do things, you have to have an executive capable of it.

Wittes admits that presidency doesn’t have to be this way — indeed, that Israel, which he describes as “another democratic country that has ongoing security issues and fights wars semi-regularly” doesn’t have it. Me, I’d call Israel a partially democratic country that faces far greater security issues, but which has nevertheless thrived for 70 years without it. Which is another way of saying, right in the middle of his post arguing for the necessity of a unitary presidency, Wittes provides a counterargument that suggests that, at least in some circumstances (Israel has had a lot of help, after all), it’s not actually necessary.

Nevertheless, Wittes likes what we’ve got because it gives us decisiveness and accountability.

The American system has a lot to recommend it. It generates not merely decisiveness of action, but also political accountability for that action—what Hamilton called “a due dependence on the people” and “a due responsibility.” Divide up the executive authority and nobody really knows who gets credit for success and who gets blame for failure. Nobody is responsible for anything in Israel, for example. Give all the responsibility to one president, and that is not really a problem. Nobody doubts who is responsible for Obamacare, for example, or for the Iraq war.

It’s definitely true we know who to hold responsible for Obamacare. Getting into the Iraq War, too — though there’s far less certainty among the public about who is responsible for the failure to negotiate a SOFA, which led to the withdrawal timeline, and (arguably) to the resurgence of what would become ISIS. Both Obama and Bush get blamed.

But it’s an interesting argument particularly in light of Wittes’ prior dismissal of Conor Friedersdorf and Jennifer Granick’s concerns about drones and surveillance, because on those issues and many more, the Executive is shielded from much political and all legal accountability. Presidents have authorized a vast range of covert action over the years that have led to a great deal of blowback that they by definition cannot be held accountable for. Hell, as recently as 2013, the Executive was stone-walling SSCI member Ron Wyden about what countries we were conducting lethal counterterrorism operations in, and it took years of requests, starting before the Anwar al-Awlaki killing and continuing for some time after it, before Wyden was permitted to see the authorization for that.

No one may doubt who is responsible for Obamacare, but even select oversight committees, and especially voters, simply don’t know all the things they might want to hold a president accountable for.

And on the issues that (I think) Wittes would lump under “national security,” such secrecy, such unilateral power, actually may lead to rash and often stupid decisions. Setting aside what you think about the need for the President to have authority to order preemptive nuclear strikes (the “Bomb Power” that Garry Wills argues created the necessity for such secrecy), with such authority also comes the ability to create significant harms to the US by a thousand cuts of stupid covert action. We helped to create modern Sunni terrorism via such secret authority, after all.

Add in the fact that the Intelligence Community now claims cyberattacks are the biggest threat to the US. That’s an area where there has been a distinct lack of accountability, even after catastrophic failures.

But one thing never happens in either of those worlds: accountability.

On the national security side, I have long noted that people like then Homeland Security Czar John Brennan or Director of National Security Keith Alexander never get held responsible when the US gets badly pawned. The Chinese were basically able to steal the better part of the F-35 program, yet we still don’t demand good cyber practices from defense contractors or question the approach the NSA used on cyber defense. A few people lost their job because of the OPM hack, but not the people who have a larger mandate for counterintelligence or cybersecurity. Indeed, the National Security Council apparently considers cyber a third category, in addition to public safety and national security.

As a result, whereas we assume (wrongly) that we should expect the NatSec establishment to prevent all terrorist attacks, no one thinks to hold our NatSec establishment responsible if China manages to steal databases of all our cleared personnel.

Finally, our supposedly nimble presidency has been distinctly unable to act decisively in two areas that have been a bigger threat to the US than Iran or terrorism of late: financial recklessness and crime, and climate change. The reasons for inaction are dramatically different (though both have a lot to do with the way big money dominates our elections), but the effect is that the President has a lot of power to kill Americans in secret, but doesn’t wield that same power to prevent systemic catastrophes of another sort.

Wittes ends his piece by blaming the electorate — a stance I’m not unsympathetic with.

I want to suggest, in closing, that the problem here is not a structural flaw in the executive branch. That we are contemplating our fears of a Trump presidency reflects, rather, a flaw in the electorate that would contemplate his election and in the political leadership of one of our major political parties—leadership that prefers to back him than repudiate him. In a democracy, the people, generally speaking, get the president they ask for. And if the populace asks for an abusive, erratic, proudly ignorant figure of no coherent policy vision, it’s going to get that.

But I’m far more struck by this passage, which seems a much better argument for reversing some of what even Wittes admits has been growing power of the presidency.

[I]n the ordinary course of business, nobody gets to remove from the hands of the president the vast powers that he lawfully wields: the power to destabilize regions, launch military adventures, abrogate agreements, and destroy alliances. These powers are inherent features of powers of the presidency, and they are inherent powers that we actively need.

Wittes argues we can’t impose any limits on the President (even ones that existed as recently as 15 years ago), because we need the ability to do stupid things with little oversight.

Given how damaging those powers have already been, in the hands of purportedly sane Presidents, why do we think we want to keep it that way?

Fellatio for Cheney from the Politico

I guess it’s no surprise that Dick Cheney chose Pool Boy and his two sidekicks, John Harris and Mike Allen, for his first propaganda piece after stepping down as Vice President. And it was a good choice for Cheney, as they apparently assiduously avoided any of the questions that Cheney ought to be asked.

For example, when Cheney asserted,

Protecting the country’s security is “a tough, mean, dirty, nasty business,” he said. “These are evil people. And we’re not going to win this fight by turning the other cheek.”

Real journalists might have asked, "then why the fuck didn’t we finish the job in Afghanistan rather than turning our attention to a war of choice in Iraq?"

Similarly, when Cheney said,

*The potential consequences of $1 trillion in deficit stimulus spending: “It’s huge, obviously – potentially huge. You worry about what ultimately happens to inflation. You worry about what’s going to happen to the ability of the government to borrow money. … I’m nervous.”

Real journalists might have asked why Cheney showed no concern when he was racking up $1 trillion (and counting) of deficit spending for the aforementioned war of choice in Iraq. For that matter, real journalists might even have asked what happened to Cheney’s claim that "Reagan proved deficits don’t matter," now that he’s out of office.

But I suppose it would take more than a real journalist–it would take a DFH blogger, most likely–to point out that, in fact, many people did foresee the colossal fuck-up the Bush Administration was making of the economy.

*Whether the Bush administration should have done more about the economy: "We did worry about it, to some extent. … I don’t think anybody actually foresaw something of this size and dimension occurring. It’s also global. We only control part of the world economy – a very important part."  

The article ends by quoting Liz Cheney teasing her dad that he doesn’t need a press aide–he can do it on his own. And I guess, given that he did such a good job of arranging a fluffer designed to attack Obama some more for reversing Dick’s failed policies–Liz Cheney has it about right. 

Imperialist Robert Kagan Disavows the Bureaucracy of Immense American Presidency He Championed

The chattering class is in love with this Robert Kagan op-ed warning of Donald Trump bringing fascism,

not with jackboots and salutes (although there have been salutes, and a whiff of violence) but with a television huckster, a phony billionaire, a textbook egomaniac “tapping into” popular resentments and insecurities, and with an entire national political party — out of ambition or blind party loyalty, or simply out of fear — falling into line behind him.

I suppose I’m unsurprised that Beltway insiders are so gleeful that this Hillary-endorsing Neocon has turned on Republicans in such a fashion. Or, perhaps more importantly, that they’re so thrilled someone with such a soapbox has written a warning of impending fascism that so neatly disavows any responsibility — for Kagan himself, and by association, for other insiders.

But there are a couple of real problems with Kagan’s screed.

First, Kagan would like you to believe that Trump’s success has nothing to do with policy or ideology or the Republican party except insofar as the party “incubated” Trump.

But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy. Trump has transcended the party that produced him.

Kagan gets Trump’s relationship with the Republican party exactly reversed. The party did not in any way incubate Trump. 80’s style greed and cable TV incubated Trump, if anything. What the Republican party has long incubated is racism. Trump just capitalized on that and pushed it just … a … bit … further than Republican dogwhistles traditionally go, in a year in which the GOP had lost a great deal of its credibility.

Which is why Kagan is also wrong in claiming that Trump isn’t about policy or ideology. I admit that Trump has always shown great deal of ideological flexibility, both before and during this run. But he has been consistent on two points: that racism, but also protectionism. There are a lot of reasons those two ideological keystones have appealed this year, but one has to do with the failures of globalization and the related American hegemonic project it assumes. That’s ideology and policy, both Trump’s, but also DC’s, including Kagan’s.

Kagan goes on to deal with these two issues.

We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up.

Note the assumption that Trump’s protectionism is not an economic remedy but some unstated alternative is? Note Kagan’s treatment of racism, an ideology, as fear divorced from that ideology of white American exceptionalism?

Fear!! Kagan wants to boil Trump’s popularity down to fear! A guy who has had a central role in ginning up serial American aggressive wars is offended that someone wields fear to achieve political power!!! And having done that, this warmonger says the ability to gin up fear is precisely what our Founders — the men who set up three competing branches of government, each jealously guarding its power — were concerned about.

Which brings me to the Kagan argument that most baffles me. After bewailing Republican politicians’ refusal to stand up to Trump’s demagoguery, Kagan then argues (though I’m not sure he even realizes he’s making this argument) that Article I and Article III (the latter of which goes entirely unmentioned in this op-ed) will be powerless to stop Trump and his “legions” once he becomes president.

What these people do not or will not see is that, once in power, Trump will owe them and their party nothing. He will have ridden to power despite the party, catapulted into the White House by a mass following devoted only to him. By then that following will have grown dramatically. Today, less than 5 percent of eligible voters have voted for Trump. But if he wins the election, his legions will comprise a majority of the nation. Imagine the power he would wield then. In addition to all that comes from being the leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military. Who would dare to oppose him then? Certainly not a Republican Party that laid down before him even when he was comparatively weak. And is a man like Trump, with infinitely greater power in his hands, likely to become more humble, more judicious, more generous, less vengeful than he is today, than he has been his whole life? Does vast power un-corrupt?

Never mind that Kagan describes general election numbers that simply don’t exist in our democracy. What he’s really complaining is that a President — one he happens to distrust and dislike — would have “the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military.”  Of course, Kagan focuses not on the government as a whole, but on the Deep State and the Justice Department that has increasingly become an integral part of it.

The guy who, for years, championed the unfettered exercise of the Deep State in the hands of people like Dick Cheney is now troubled about what would happen if Donald Trump got the same powers Dick Cheney had. And for what it’s worth, while I don’t buy Michael Hayden’s claim the CIA would resist a President Trump’s order to torture (Hayden’s successors at NSA and CIA will likely do just what Hayden himself did, capitulate to unconstitutional demands), I also know that neither Trump nor anyone in his immediate orbit has the kind of bureaucratic mastery of the Deep State that Dick Cheney had.

One more really important point: the Deep State — those tools Kagan is horrified Trump might soon wield — got so powerful, creating the danger that a demagogue like Trump might tap into them fully formed, largely in the service of an imperial project significantly sold by Robert Kagan. Kagan has claimed to be selling “Democracy™” around the world, but all along that project has rotted our own democracy here at home.

Kagan (and his fellow imperialists) did that. Not Trump. Trump would just take advantage of the bureaucratic tools Kagan’s propaganda has served to justify.

I’m not denying Donald Trump is a huge threat to American democracy (though I happen to think Hillary’s foreign policy will come with great risks and costs as well). I’m saying that Robert Kagan is not the one to make this argument — at least not without a whole lot of soul searching and commitment to change the underlying empowerment of “the immense powers of the American presidency.”

But Kagan doesn’t want that. Rather, he just wants to hand those powers, still unchecked, to Hillary Clinton.