The hidden powers of the Presidency

Source: BelConLawBlog.

The President of the United States has the potential powers of a dictator. Maybe “potential” is the wrong word. Here is the beginning of an article in the current issue of Harper’s magazine.

A few hours before the inauguration ceremony, the prospective president receives an elaborate and highly classified briefing on the means and procedures for blowing up the world with a nuclear attack, a rite of passage that a former official described as “a sobering moment.” Secret though it may be, we are at least aware that this introduction to apocalypse takes place.

At some point in the first term, however, experts surmise that an even more secret briefing occurs, one that has never been publicly acknowledged. In it, the new president learns how to blow up the Constitution. The session introduces “presidential emergency action documents,” or PEADs, orders that authorize a broad range of mortal assaults on our civil liberties. In the words of a rare declassified official description, the documents outline how to “implement extraordinary presidential authority in response to extraordinary situations”—by imposing martial law, suspending habeas corpus, seizing control of the internet, imposing censorship, and incarcerating so-called subversives, among other repressive measures.

“We know about the nuclear briefcase that carries the launch codes,” Joel McCleary, a White House official in the Carter Administration, told me. “But over at the Office of Legal Counsel at the Justice Department there’s a list of all the so-called enemies of the state who would be rounded up in an emergency.  I’ve heard it called the ‘enemies briefcase.’ ”

These chilling directives have been silently proliferating since the dawn of the Cold War as an integral part of the hugely elaborate and expensive Continuity of Government (COG) program, a mechanism to preserve state authority (complete with well-provisioned underground bunkers for leaders) in the event of a nuclear holocaust.

Compiled without any authorization from Congress, the emergency provisions long escaped public discussion—that is, until Donald Trump started to brag about them.  “I have the right to do a lot of things that people don’t even know about,” he boasted in March, ominously echoing his interpretation of Article II of the Constitution, which, he has claimed, gives him “the right to do whatever I want as president.”

Source: Andrew Cockburn | Harper’s Magazine

These powers come from two sources. One consists of laws, going back to World War One, granting the President emergency powers and never rescinded. The other is the old doctrine that “in time of war, the laws of silent,” combined with the idea that the USA is a permanent state of war with no foreseeable end.

A Constitutional crisis in the making

I think this prediction by economist Jack Rasmus is all too possible.

CNN poll shows 66% of Trump supporters will vote in person on Nov. 3 but only 22% of Biden supporters vote in person. (53% Biden supports to vote by mail). Trump will appear to win on Nov. 3 based on direct in person voting. He’ll declare victory and then move quickly to have Barr and the Justice Dept. stop the counting of mail in ballots in key swing states.

His lawyers are already fanning out and filing motions for injunctions against mail in voting. They will flood swing-blue states mail in ballot vote counting to delay the counting still further. States where Republican governors (and State secretaries of state who manage those states’ vote counting) will meanwhile throw out millions of mail in ballots based on technicalities like signatures failing to dot i’s or cross t’s to ensure Trump ‘red’ states turn in pro-Trump decisions.

Examples of US post office chaos & claims of lost vote ballots, etc. will be used by Trump lawyers to make legal argument that mail in ballots cannot be used to determine the final vote count. Injunctions will be filed to require states to disregard mail ballots. Further delays in mail in ballot counting will occur.

Disputes and legal action by Dems in response will be quickly sent up by Trump federal district judges (appointed by hundreds under McConnell since 2013) to the Supreme Court, now 6-3 in Trump’s pocket. Trump’s Supreme Court will repeat its Florida 2000 decision stopping the vote count––this time counting original votes not a recount. Only swing and blue states will be targeted, not red states already pro-Trump.

Street protests will erupt after Nov. 3 protesting the legal coup d’etat in progress. Trump has already called protestors “insurrectionists” and identified all protests as ‘antifa’ or ‘communist’. His attorney general, Barr, has also already pre-labeled protestors as “treasonous” and traitors who should be forcibly repressed and jailed

The US executive branch since 2002 now has its own executive police force called the Dept. Homeland Security (DHS), with de facto military swat teams who’ve been doing ‘dry runs’ in Seattle, Chicago, Portland and elsewhere. They will be used to suppress protests, aided by pro-Trump local police departments (e.g. New York City, etc.) and perhaps even welcoming right wing radical supporters as provocateurs to attack protestors and thus allow DHS-Police to declare protests riots and directly quash protests.

Source: Jack Rasmus

When Donald Trump was elected, I scoffed at those who called him a potential dictator.  I thought he was too erratic and ignorant to be a dictator.  I thought his significance was as a kind of proof-of-concept of how someone more intelligent and purposeful might become dictator.  Maybe I underestimated him.

This potential crisis is not Trump’s doing alone.  The Republicans–and it is mainly the Republicans–have been chipping away at the integrity of the voting system for 20 years.  In 2000, the election did not go to George W. Bush merely because the Florida recount was halted.  It was because thousands of black voters were disqualified based on false claims they had been  convicted of felonies in other states.

Suppose Trump wins. What then?

Biden ahead, but Trump within reach. Source: 270towin.com

A lot is being written about what happens if President Trump loses the election and refuses to concede defeat.  But there is an equal and opposite problem outcome.

What if Trump wins by fair means or foul?  Can the Democrats accept the legitimacy of a second Trump term?

I can’t predict the outcome of the election, but here’s one outcome that’s highly possible.  Joe Biden, like Hillary Clinton, wins the popular vote, but Donald Trump wins the electoral vote, based on narrow margins in key states.

Very likely there will be disputes as to which ballots shall be counted–for example, if large numbers of mail-in ballots arrive after election day or not all the ballots are counted when thr Electoral College meets.

Disputes would be resolved by a vote in thr House of Representatives, on a one-state, one-vote basis, or by the Supreme Court.  Republicans have a majority in 28 state delegations, versus 22 for Democrats.  Republican appointees also are in a majority on the Supreme Court, and it favored the Republicans in Bush v. Gore.

Many Democrats refused to accept the legitimacy of Trump’s 2016 win.  They influenced electors to violate their pledges and then mounted failed two impeachment campaigns.

If Trump wins again, the opposition will not be limited to political maneuvering.  It will take place in the streets.  And this will be during a time of massive unemployment, bankruptcies  and already-existing civil unrest.

Back in June, a group of former government officials, campaign leaders and other notables conducted a role-playing political war game under different scenarios.

They pointed out that (1) the winner probably won’t be known on Election Night, (2) there will be plenty of opportunities for both sides to dispute the results and (3) the transition process will like be disrupted.

They played out four scenarios–an ambiguous result, a clear Biden victory, a clear Trump win and a narrow Biden win.  The most interesting part to me is the lengths to which these experienced campaigners and officials thought the Democrats would go to prevent Trump from takibg office even if he has a clear win.

In the war game, Team Biden asks for a recount in key states.  By a roll of the dice, this results in Democratic governors in two states certifying a different slate of electors than those certified by the state legislators.

Then we get to the wild stuff.  The governments of California, Oregon and Washington threaten to secede from the Union unless Congress agrees to give statehood to Puerto Rico and Washington, D.C., subdivide California into five states with their own Senators, require Supreme Court justices to retire at age 70 and abolish the Electoral College.  I don’t know whether the game-players were aware that the last two would require Constitutional amendments.

It’s hard to believe such things could actually happen.  But it is striking that so many top-level people entertain these possibilities.

When did American democracy lose its way?

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use, and be authorised to use, in the event of a nuclear attack on the United States.  

He could launch the kind of devastating attack the world has never seen.  He doesn’t have to check with anybody, he doesn’t have to call the Congress, he doesn’t have to check with the courts.

==Dick Cheney, Fox News, Dec. 21, 2008

We Americans live under a government whose executive has the power to attack foreign countries, order assassinations and kidnapings, imprison people without trial, commit crimes and prosecute those who reveal those crimes.

When did this start?  The historian Garry Wills, in his 2010 book BOMB POWER: The Modern Presidency and the National Security State, argued that it began with the Manhattan Project.  The creation of the atomic bomb set the pattern for exercise of vast power in secret, without legal authority, with national security as the justification.

General Groves, the organizer of the project, operated without authorization from Congress and outside the norma military chain of command.  He spent billions of dollars back when that was real money.  He authorized major industrial facilities at Oak Ridge, Tennessee, and Hanford, Washington, plus the research and test facility at Los Alamos, New Mexico.  All this was done without knowledge of the public (although spies told the Soviet government about it.)

The original purpose was to develop an atomic weapon before Hitler’s scientists did.  When Germany was defeated, that purpose became moot. The purpose became the justification of the project’s existence.

If Groves had not had a uranium bomb to drop on Hiroshima and a plutonium bomb to drop on Nagasaki, he might have been court-martialed, or at the very least, subjected to a congressional investigation, for usurping power and wasting the government’s money.

On the contrary, the atomic bomb became the core of postwar American military strategy.  Congress lost its authority to declare or refuse to declare war.  A decision to respond to an attack, nuclear or otherwise, had to be made within minutes.

Only the President controlled the Bomb and, by extension, the fate of the world with no Constitutional check.  The President came to be regarded not as Chief Executive of one of three branches of government, but as Commander in Chief of the whole nation.

The secret Manhattan project set a precedent for the vast secret powers of the Central Intelligence Agency, National Security Agency and the rest of the national security state.  Congress’s power of financial oversight was shut off by a veil of secrecy..

It is true that the U.S. government has a history of suspending civil liberties in times of war, but, prior to World War Two, life returned to normal after the war ended.

 In the nuclear age, the shooting war against Germany and Japan morphed into a global struggle between the United States and the Soviet Union.  And when the Soviet Union fell apart, the Cold War morphed into a supposed war against terror that had no defined enemy.

The wartime footing became a constant in American life.  Only the designated enemies changed.

President Trump invokes power of a dictator

President Donald Trump, having failed to persuade Congress to appropriate a full $5.7 billion for his border wall, has said he’ll declare a national emergency and take the money from Department of Defense funds.

The thing is, he doesn’t even pretend there is any emergency involved.

I could do the wall over a longer period of time.  I didn’t need to do this.  But I’d rather do it much faster.  And I don’t have to do it for the election.  I ’ve already done a lot of wall for the election. 2020.  And the only reason we’re up here talking about this is because of the election—because they want to try to win an election, which it looks like they’re not going to be able to do.

If a President can simply declare a national emergency and override the will of Congress, what power does he lack to make himself a dictator?

President Trump did not give himself these emergency powers, and he is not the first one to use them or abuse them, but none before him have been so blatant about the lack of justification for using these powers.

Our Constitution sets up a form of government with three branches of government with separate powers—the legislative, executive and judiciary—with the idea that each would check and balance the power of the others.

The problem with this is that separation of powers means separation of responsibility.  The path of least resistance for Congress is to abdicate responsibility to the President.

It’s true that Congress is not entirely to blame in this case.  The original law that President Trump invoked allowed Congress to veto an emergency declaration by a majority vote of the Senate and the House of Representations.  The Supreme Court ruled that unconstitutional; it said the two-thirds votes are required not only to overturn vetoes of legislation, but to overturn any Presidential action.

Even so, it is Congress that over the years has given Presidents the powers of dictators, and it is the responsibility of Congress to take these powers back.  No member of Congress who declares themselves a part of the “resistance” to President Trump can be taken seriously if they continue to allow him the powers of a dictator.

LINKS

Republic’s End: Trump’s Border Wall by Ian Welsh.

A Fishy Emergency Threatens the Republic by Doug Muder for The Weekly Sift.

Trump’s dictator move is the real emergency—and we handed him the keys by Will Bunch for the Philadelphia Inquirer.

What Is and Isn’t a Big Deal in Trump’s Executive Actions Related to the Border by Jack Goldsmith for Lawfare.

Democrats allow Trump a dictator’s power

Lee Camp, writing for Truthdig, pointed out that Democrats in Congress have no qualms about giving President Donald Trump the powers of a dictator.  Instead of standing up for the American people, he said, corporate-owned Democrats have strengthened the president.

The Democrats have helped, voted for, and often argued in favor of all of the following:

1. Giving Trump unlimited war powers.
2. Giving Trump unlimited trade negotiation powers.
3. Giving Trump unlimited surveillance powers.
4. Giving Trump the power to lock someone up indefinitely without a trial or charges under the National Defense Authorization Act.
5. Giving Trump the power to assassinate American citizens without a trial or charges.
6. Giving Trump’s administration full control of our election system infrastructure.

If this is considered “resistance,” then I don’t want to be a part of it. I’d rather spend my time resisting the “Resistance” and thereby taking this dictator’s toolkit away from Donald Trump.

Source: Truthdig

Most of my Democratic friends are obsessed with Trump.  Every discussion of politics veers to the most recent foolish thing Trump has said or done.

They hope and expect that Special Prosecutor Robert Mueller will prove that Trump is in league with the Russian government and provide grounds for impeachment.

Even if that works out, which I doubt, they’re then faced with President Mike Pence, who from a liberal Democratic standpoint is just as bad as Trump on matters of policy, but more effective.

On matters of policy, there’s little difference between Trump and the dominant faction in the Republican Party.

On fundamental questions of war and peace, Constitutional rights and economic policy, there is no fundamental difference between Republican and Democratic leaders in Congress.

That’s why some Democrats in Congress would rather allow Trump the powers of a dictator than to set limits on the power of a future Democratic President.

It’s true that, out of the six items, only the war powers and the surveillance powers were voted on during the Trump administration.

That doesn’t matter.  When you vote to remove restraints on Presidential power, you have empowered all Presidents, present and future—not just to the one you happen to like.

LINKS

Six Ways the ‘Resistance’ Gave Trump a Dictator’s Toolkit by Lee Camp for TruthDig.

Russiagate, Trump, Putin, Mueller and Targeting Dissent by Matt Taibbi for Rolling Stone.

What Obama could do to curb Trump’s power

President Obama said during the campaign that he’s worried about somebody like Donald Trump with access to the nuclear codes and all the other powers of the Presidency.  A writer named Pratap Chatterjee listed nine things Obama could do to reduce Trump’s power to do harm.

1.   Name innocent drone victims.
2.   Make public any reviews of military errors.
3.   Make public the administration’s criteria for its “targeted killings.”
4.   Disclose mass surveillance programs.
5.   Make public all surveillance agreements with private companies.
6.   Make public all secret laws created in recent years.
7.   Punish anyone who has abused the drone or surveillance programs.
8.   Punish those responsible for FBI domain management abuses.
9.   Pardon Edward Snowden, Chelsea Manning and the other whistleblowers.

That wouldn’t eliminate a President Trump’s power to start wars without authorization from Congress, but it would be a start on reducing Presidential powers to their Constitutional limits.

LINKS

Obama’s Last Chance by Pratap Chatterjee for TomDispatch.

FBI and NSA Poised to Gain New Surveillance Powers Under Trump by Chris Strohm for Bloomberg News.

 

Civil authority, the CIA and two scary thoughts

The basic principle of constitutional government is that any government agency or official authorized to use lethal force is subject to legitimate civilian authority.

Governments, according to the U.S. Declaration of Independence, are instituted so that people may enjoy their alienable right to life, liberty and the pursuit of happiness, and they derive their just powers from the consent of the governed.

Click to enlarge.

If the police, the military or secret intelligence agencies become laws unto themselves, then they become the government, and so-called American freedom and democracy becomes a sham.

The greatness of George Washington was that he always followed the directives of the Continental Congress, however misguided he may have thought them to be, and that, after the success of the Revolution, he refused the temptation to make himself dictator and retired to Mount Vernon until called to public service by the people.

Washington’s decision, and the precedent he set, saved the infant USA from the fate of the new Latin American republics, whose military forces regard themselves as the ultimate authority and who think they have a right and duty to step in when the civilian authority falters.

Then there was Germany in 1919-1933, prior to the rise of Hitler, when the German General Staff set its own foreign and military policy in disregard of the elected government, which did not dare to challenge it.

Our Pentagon and CIA have come to be political forces in their own right, not defying the elected government but letting it be known that their views are not necessarily the views of the elected government.

John Brennan, the head of the CIA, openly disagrees with President Obama’s condemnation of torture, and the President has not reprimanded him.  Neither has he tried to dismiss torturers from government service.  He appears to argue with his appointment, but not to exercise his authority as commander-in-chief.

Why not?  One likely possibility is that the President is not sincere in his condemnation.  Another is that he does not believe the public would support him.

A Gallup poll indicates that the American public has more confidence in the military than in any other American institution, and less confidence in Congress than any other instituion.  Twice as many have confidence in the military than in the presidency.   It’s a bad sign for a democracy when the public has more confidence in the military than in the civilians it elected.

Here’s a scary thought.

Maybe the President fears that if he ordered the CIA to operate within the Constitution and the law, it would not obey.

Here’s a scarier thought.

Maybe the President already has ordered the CIA to operate within the Constitution and the law, and it did not obey.