Iran-Contra and the poisonous legacy of excessive Presidential power

The late Theodore Draper is one of my favorite historians. He researched the Iran-Contra affair extensively and wrote a lot about its longer-term implications.

In The Constitution in Danger New York Review of Books 03/01/1990 issue, he wrote about Old Man Bush's decision to invade Panama in 1989:

There was something about the intervention that made it a peculiarly presidential affair. President Bush behaved as if he were conducting a personal vendetta against Noriega. All that seemed to matter was that Noriega should be removed, as if the source of all the trouble in Panama were concentrated in one man. The administration and the press even gave the impression that all was lost if [Panama's military governor Manuel] Noriega escaped, all won if he did not.

Months before, Bush had said that the quarrel was solely with Noriega, not with the Panama Defense Forces. In his press conference on December 21, 1989, the day after the invasion, Bush confessed, "I've been frustrated that he’s been in power this long - extraordinarily frustrated." All that mattered, Bush added, was that "they would get rid of him and recognize a democratically elected government, [and] we could go back to more normalized relations."

We may yet hear that Abraham Lincoln and Franklin D. Roosevelt set the precedents for presidential initiatives of this kind. Compared to what they faced, however, Noriega’s threat to the national security of the United States was laughable. If the use of armed force should be reserved for a serious threat to the country, as we have long been led to believe, there was no such threat in Panama.

To use an armed invasion to kick out a goon the US had previously subsidized is to deaden our sensibilities to the havoc of war, big or little. [my emphasis]

His focus in that article was on the drastic claims for Presidential power made by various players in the Iran-Contra affairs. He doesn't mention it in this article, but Dick Cheney was responsible for the minority report in the Iran-Contra Congressional investigation, the report authored by Cheney's close associate David Addington. It is considered the first major elaborate of Cheney's theory of the Unitary Executive which became a basis (or excuse) for the lawlessness of his Presidential Administration fronted by George W. Bush. In 2006, Al Gore suggested this theory "ought to be more accurately described as the unilateral executive." (In Martin Luther King Day address, Gore compares wiretapping of Americans to surveillance of King Raw Story 01/16/2012)

Draper's warnings are even more striking now than when he wrote them:

The unfinished business of the Iran-contra affairs still haunts us. It reappears every time the President decides to take some critical action in foreign policy on his own.1 We have barely begun to face the issue, with the result that some Iran-contra variant is bound, sooner or later, to recur.

The Iran-contra affairs amounted to more than good plans gone wrong or even bad plans gone wildly wrong. They were symptomatic of a far deeper disorder in the American body politic. They were made possible by an interpretation of the Constitution which former National Security Adviser John M. Poindexter and Lieutenant Colonel Oliver L. North thought gave them a license to carry on their secret operations in the name of the President, without regard for any other branch of the government.2 One would not ordinarily think of Poindexter and North as authorities on the power of the presidency in foreign affairs. Yet, to justify their actions, they held forth on just this constitutional issue. A highly dubious theory of a presidential monopoly of foreign policy had filtered down to them. Their reasons reflected a school of thought that calls into question the constitutional foundations of this country.

Draper quotes James Madison from a 05/13/1798 letter to Thomas Jefferson about the danger for abuse of power in foreign policy:

The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views; and because the body of the people are less capable of judging, and are more under the influence of prejudices, on that branch of their affairs, than of any other. Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.

ags: theodore draper, unilateral executive, unitary executive, war powers

No way to put a good spin on this one

Not that I can see: Report: Obama Admin Drafts Memo To Detain Terror Suspects Indefinitely by Zachary Roth TPM Muckraker 06/26/09

Tags: indefinite detention, unitary executive

That strike into Syria

I already "fisked" this article, This article today, Officials Say U.S. Killed an Iraqi in Raid in Syria by Eric Schmitt and Thom Shanker New York Times 10/27/08, at some length in another, "long-form" post. But I wanted to return to it to summarize some of the most important points.

One is that the administration is all-but-officially admitting they made a military strike into Syrian territory. This was not a "covert action". It was a full-on military strike, a "targeted assassination" operation aimed at a particular individual, if the anonymous sources are to be believed. Do I need to add that there's no clear reason why these sources should have been granted anonymity since the story couldn't sound more like an officially-sanctioned "leak"? Or it could be some kind of "trial balloon" to test public and Congressional reaction.


Targeted assassination in general is a highly dubious policy with a highly dubious legal status. This one clearly includes some very real immediate practical risks: reduction of Syrian cooperation with US anti-terrorism operations (which could be a lucky break for Syrian nationals selected for the CIA's "special rendition"); a relaxing of border controls on the Syrian side; retaliation by Syrian against Iraqi refugees currently residing there; interference with Israeli diplomacy aimed at improving their relations with Syria.

I'm not an attorney or a specialist in international law. But I know enough about it that I would be amazed if it weren't a straight-up illegal act of aggression. And it's very notable that the anonymous administration officials are pitching this one not just as an application of the Bush Doctrine of preventive war but an expansion of it.

Motives? The administration officials could be telling the truth. (Hey, it's theoretically possible!) There clearly seems to be an idea of locking the Obama administration into these kinds of strikes, if not into expanded wars in Pakistan, Syria and/or Iran. The anonymous official included an explicit hint that the same thing might happen to Iran, where there have already been covert actions, according to Seymour Hersh's reporting. There was even a passage that could be read as a suggestion that the assassination target may have been killed after he was taken into custody.

I'm also worried that one purpose, maybe even the main purpose, is to establish precedents for the next Republican administration to provide some kind of thin validation for further illegal acts. This is why it's so important that there be official, criminal investigations of this current administration's bad acts. Because if Obama decides to give them all a pass, the Cheneyized Republican Party will take that as a green light to go back to the use of a lawless "Unitary Executive" the next time they come to power.

This strike into Syria could be a much bigger deal than it might appear on the surface.

Tags: authoritarianism, cheney, dick cheney, syria, unilateral executive, unitary executive

Commander-in-Chief

Pat Lang is a prick and he doesn't like me. But he does have some good observations at his Sic Semper Tyrannis 2008 blog. Like in his post of 09/04/08, Tom Brokaw and the emperor:

Tom Brokaw made a reference on MSNBC today to the "commander in chief of the United States."

NO!

The president is commander in chief of the armed forces of the United States, not of the country. We have no emperor. To think of the president of the United States as commander in chief of the country is to make this person the sovereign and we his subjects.

Tom Brokaw has made himself press agent for the veterans of World War Two. Did they struggle for this, Tom, to be "subjects?"

It's a real sign of the militarization of our culture and politics that the President is so routinely referred to as "the Commander-in-Chief". Lang has it exactly right. If you're not on active duty in the armed services, he's not your Commander-in-Chief under the Consitution.

Tags: pat lang, unilateral executive, unitary executive, us constitution

The unilateral Executive theory of Presidential power

Digby makes an important point about today's Republican Party, specifically in regard to Dark Lord Cheney's "unilateral Executive" theory of Presidential power. For authoritarian Republicans like the Party's leaders today, the Party is the ultimate source of legitimacy. Not the Constitution, not the law. Not even ideology, except so far as ideology protects the power of the Party and the economic and class interests to which it is dedicated to serving. Digby writes:

It's actually a straight line from the Watergate pardon to Iran-Contra (and its pardons) to impeachment to the stolen election of 2000 to the unitary executive abuses of the Bush presidency and the Iraq war. It doesn't really have anything to do with Dick Cheney's alleged theory of executive power, since he employs it only when he's defending a lawless Republican administration. (I don't exactly recall old Dick standing up and complaining loudly about the imperial congress spending eight years harassing the executive when the executive was a Democrat, do you?)

Cheney and his boys escalate whenever and wherever they have institutional control. He doesn't actually believe in a powerful executive. He believes in a powerful Republican Party and so do all of his lock-step brethren --- by any means necessary. (my emphasis)

Let's hope that most of them don't quite hold the "by any means necessary" perspective!

Tags: bush, cheney, unilateral executive, unitary executive

Torture in the Bush Gulag: Remembering the stakes

Scott Horton made a speech at Ole Miss Law School (University of Mississippi) in Oxford MS this past week on the grim subject of torture as practiced by the Cheney-Bush government: Accountability and the Renegade Executive Balkinization blog 03/29/07.

He began, appropriately enough for a presentation in William Faulkner's hometown, with a quote from him, from chapter 3 of Sanctuary:

"The Virginia gentleman one, who told us at supper that night about how they had taught him to drink like a gentleman. Put a beetle in alcohol, and you have a scarab; put a Mississippian in alcohol, and you have a gentleman -"

For some inexplicable reason, Horton ellided the two words "one, who" out. I always think you shouldn't tamper with Scripture without a good reason. (I consider Faulkner's works part of the Biblical canon.)

But Horton's subject was grimmer stuff. He connected the current scandal over the US Attorneys firing with the torture policy:

America today is in the grips of a scandal surrounding the machinery of justice, but it is a scandal being played out on more fronts than the mass media seems to realize. Indeed, in the end it turns on the concept of justice, not simply the bureaucracy that supposedly administers it.

The Cheney-Bush administration's Unilateral Executive theory puts the President and Vice President above the law and the Constitution. Obviously, they haven't been able to fully implement it in all areas. But they've gone much further in undermining democracy and the rule of law in the US than even Nixon did. Horton said:

It [the firing of the US Attorneys] is tied to a plan to use their offices to go after Democrats, whether a basis existed or not, and to pursue a voter suppression program focused on prospective Democrats. In other words, it's pure politics. Not high politics in the sense that Aristotle uses the term. But the crude gutter politics of the partisan hack. This sort of politics is not the exclusive province of one party. But over the last years, one party has exercised a monopoly on political power, and this appears to have led to a particularly virulent strain of political hackery.

Standing alone, this incident would be cause for grave concern. But it's just one aspect of a far broader crisis in which our country is enmeshed. The crisis has its start in the decision to introduce torture and cruel, inhuman and degrading treatment - in contravention of 230 years of US military tradition, stretching back to George Washington's order after the battle of Trenton. Gonzales had a key role in this process as well, backed up by Cheney's chief-of-staff, David Addington and the now ever-present John Yoo. They tell us that they did this to insure that the president, as commander-in-chief, would have all the tools at his disposal that he might need to fight a war against terror. But if we strip the varnish off that, there are unmistakably unsavory elements underneath: one is a recognition that torture is a crime, and the second is a desire to enlist it into the president's arsenal notwithstanding what the law says. (my emphasis)

Horton is right on that point: the torture policy was the leap into the abyss of Presidential lawlessness. Reversing the torture policy and holding all those responsible for it accountable, legally accountable, is a necessary step to restoring the rule of law to the Presidency.

And he reminds us of the real purpose of torture as a government policy:

A former president of the Argentine bar, with whom I spoke two years ago, told me that his experience with torture in Argentina's "Dirty War" under a military dictatorship had been very clear. The dictator wanted torture as a talisman. It would show that the military rulers were above the law - subject to none of the restraints that marked the rule-of-law state. No one was under the illusion that torture techniques would actually get any useful intelligence. On the other hand, it would instill fear, and that was useful. He spoke to me with some conviction: the legal profession must oppose the introduction of torture, he said. In the end you will learn this is not about interrogation practices, it is about dictatorship, about tyranny. The experience of Argentina and Chile backs him up. Is the experience of America different? America is not governed by a military junta, of course. Nor can the brutality of technique and number of victims of the "Dirty War" yet be compared with the dark underside of the war on terror. But it is striking that most of the abusive techniques used by the Argentine junta were adopted and introduced in what President Bush has called the "program." This includes waterboarding, which the Argentinians called el submarino, the cold cell (or hypothermia), long-time standing and sleep deprivation in excess of two days. Nevertheless, this is a question we all should ponder. (my emphasis)

I'm not sure what he meant in saying, "Nor can the brutality of technique and number of victims of the 'Dirty War' yet be compared with the dark underside of the war on terror." It would be nice for Americans to be able to claim that. But I'm not at all sure it's true.

Tags: bush administration, bush gulag, torture, unilateral executive, unitary executive

John Dean on the US Attorneys purge

John Dean, White House counsel under Nixon and author of Conservatives Without Conscience (2006) writes about New Developments in the U.S. Attorney Controversy: Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress, and What Role New White House Counsel Fred Fielding May Play Findlaw.com 03/23/07. (His Findlaw articles have long titles.) First, the spoiler:

Bush's greatest problem here, however, is Harriett Miers. ... I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.

Telling the truth about Bush, Cheney and Rove. That could be a problem! Dean also thinks Karl Rove could wind up in the pokey over this. And he writes:

In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force ... I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.

And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration's defense of unchecked power, is a term that has not been heard since Justice Alito's confirmation hearings: "the unitary executive theory." (my emphasis)

Dean also writes of the Executive privilege argument:

I have never been an advocate of executive privilege, except as it might relate to the most sensitive national security information. To the contrary, you show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising a president.

Tags: attorney purge, bush, john dean, unilateral executive, unitary executive