B. Globe: The Candidates on Executive Power

The Boston Globe sent a questionnaire out to all of the Presidential candidates in the Democratic and Republican parties, asking them their views on the power of the Presidency.  Without specifically using the phrase “unitary executive”, the 12 questions were nevertheless clearly designed to test each candidate’s willingness to roll back Presidential powers accumulated under George W. Bush.

A December 22 article on the results, as well as links to the full questionnaire and the responses, can be found here, along with a menu for viewing the questionnaire itself and the full responses, sorted by candidate or question number.  

This is among the most important issues, if not the most important issue, in the current election cycle.  The candidates’ responses to this questionnaire deserve scrutiny.

None of the front-runners are 100% reassuring.  

In the accompanying article, Charlie Savage quotes Peter Shane, “an Ohio State University law professor who studies executive power”:

“It’s fair to say that the Democrats, Senator McCain, and Representative Paul are united in supporting a reinvigoration of checks and balances and the reassertion of a meaningful congressional role in national security affairs,” said Shane.

That, of course, leaves some room for differences between the candidates.  A candidate can be in favor of more check on the executive branch than is George W. Bush and still not be in favor of very much.

None of the responses from any of the front-runners is completely reassuring.  Whether a reader finds Clinton’s, Obama’s, or Edward’s responses most reassuring, is a matter of interpretation . . . perhaps a matter of how charitably one is willing to read.  

As for the Republicans . . .

Rudy Giuliani, Mike Huckabee, and Fred Thompson refused to fill out the questionnaire.  (On the Democratic side, Dennis Kucinich appears not to have been asked.)  This can only be read as meaning that they did not think the average voter would like their responses . . . that these Republican candidates would rather keep their opinions on the unitary executive between themselves and their primary voters.

Mitt Romney

The most frightenning set of responses from any candidate who actually provided any, came from Mitt Romney.  Almost without exception, his answers paint a portrait of a Romney presidency indistinguishable from a dictatorship.  At best, it appears that Romney would merely continue the Bush unitary executive, which is totally unnacceptable.  At worst, Romney would throw to the wind even the last vestiges of pretense under the Bush regime that the executive branch is answerable to anyone or anything.

Consider Romney’s answer to question 2:

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

A President must always act in the best interests of the United States to protect us against a potential threat, including a nuclear Iran. Naturally, it is always preferable to seek agreement of all – leadership of our government as well as our friends around the world – where those circumstances are available.

Romney here explicitly equates the opinion of the United States Congress with the opinion of foreign governments.  When “circumstances are available” it would be nice to get agreement about military action from France and, say, the US Congress, but certainly neither is critical.

Asked about warrantless wiretapping and civil liberties, Romney asserts that “Our most basic civil liberty is the right to be kept alive”.  

Asked about whether Congress has the authority to limit torture, Romney provides this simply amazing response:

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

A President should decline to reveal the method and duration of interrogation techniques to be used against high value terrorists who are likely to have counter-interrogation training. This discretion should extend to declining to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique, especially given Congress’s current plans to try to do exactly that.

As a matter of national security, then, Romney will not say whether the President is above the law.  

So, that’s Romney.  We have to assume that Thompson’s, Giuliani’s, and Huckabee’s answers would have been as bad or worse.

John Edwards

But now, have a good look at John Edwards’s response to question 2.

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

As I’ve said many times, we do not need a march to war with Iran. I strongly oppose George Bush’s doctrine of “preventive war” and believe that force always should be an option of last resort. I opposed the recent Kyl-Lieberman bill declaring Iran’s Revolutionary Guard a terrorist organization, which I believed was the first step on the administration attacking Iran. I believe that the 2002 bill authorizing force in Iraq does not in any way authorize the use of force in Iran.

This is a total evasion of the question being asked.  It must be interpreted as meaning that Edwards would rather not say whether he, as President, would feel constrained to seek congressional approval before engaging in preventative military action against other countries.

In terms of substance, it’s the same answer as Romney’s.

On torture:

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

It is hard to believe that the president and his supporters are engaged in a debate about how much torture we should have. The United States should never torture, for several reasons: because it is not the American way, because it undermines our moral authority in the world, because it places our troops at risk, and because it does not work. I strongly oppose George Bush’s possible veto of the Congressional bill prohibiting torture.

But of course Bush doesn’t think we’re in a debate about torture.  His administration says we don’t torture.  Charitably, we can differentiate Edwards’s response here from Romney and Bush by taking Edwards’s last sentence to mean that the Congressional bill prohibiting torture, if made law, to be binding upon the President.  But Edwards doesn’t say that.  He doesn’t say anything in direct answer to the question being asked, at all.  Why do we have to parse a Democratic candidate’s answer on this one?

Barack Obama

Obama’s answers to (2) and (7) are much more encouraging.

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

— snip —

There.  Was that so freaking hard to say?  Continuing, what Obama seems to be doing is situating his view of Presidential authority in war-making back in the Clinton-and-before era.  That is, still bad, but not nearly as bad:

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

All in all, hard to complain about.

Obama’s answer to (7) is similarly encouraging.

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

Hillary Clinton

Clinton’s answer to (2) I would put, in terms of reassuringness, in between Edwards’s and Obama’s.  It’s okay but not great.

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

The President has the solemn duty to defend our Nation. If the country is under truly imminent threat of attack, of course the President must take appropriate action to defend us. At the same time, the Constitution requires Congress to authorize war. I do not believe that the President can take military action – including any kind of strategic bombing – against Iran without congressional authorization. That is why I have supported legislation to bar President Bush from doing so and that is also why I think it is irresponsible to suggest, as some have recently, that anything Congress already has enacted provides that authority.

Senator Clinton, the answer is “none”.  I would really like to just be seeing “none” from more of you people.  For the record, the only person to say “none” was Ron Paul.

On the other hand, in response to question (7), Clinton gave the right answer.

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

No.

Full stop.  (Note Obama also said “No.” and his elaboration did not qualify it, so their answers are equivalent.)

I’ve only given a bit of the quetionnaire here.  It would be good to discuss this thing exhaustively, it seems to me.