(updated below)
When The Army Times, in September, reported that for "the first time an active [U.S. Army] unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities," those of us who raised questions and concerns about that deployment were told that this was but one little brigade -- just 4,500 combat troops -- and nothing meaningful could be done with such a deployment.
That was never the point, of course; the issue was the precedent of allowing the President to command permanently deployed, war-trained Army brigades inside the U.S., in order -- as The Army Times put it -- "to help with civil unrest and crowd control," as well as long-standing legal prohibitions on using the military for such purposes domestically.
Yesterday, The Washington Post reported on a much-expanded plan: "The U.S. military expects to have 20,000 uniformed troops inside the United States by 2011." Like most expansions of government power, it was the Terrorist Threat that was invoked to "justify" this radical shift in policy:
Before the terrorist attacks of Sept. 11, 2001,dedicating 20,000 troops to domestic response -- a nearly sevenfold increase in five years -- "would have been extraordinary to the point of unbelievable," Paul McHale, assistant defense secretary for homeland defense, said in remarks last month at the Center for Strategic and International Studies.
My guest today on Salon Radio to discuss this new Pentagon plan is Gene Healy, Vice President at the Cato Institute and author of the genuinely excellent book, released earlier this year, entitled: The Cult of the Presidency: America's Dangerous Devotion to Executive Power. The Post article yesterday noted that those objecting to this domestic deployment plan include those "in the military and among civil liberties groups and libertarians," and quotes both the ACLU and Healy as expressing serious concerns about the dangers. I discuss those objections with Healy, as well his relative optimism about what an Obama presidency might mean for executive power abuses.
The discussion is roughly 25 minutes and the transcript is here -- link fixed (I previously interviewed the ACLU's Jonathan Hafetz about this matter, here).
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Glenn Greenwald: My guest today is Gene Healy, who is a vice-president at the Cato Institute and the author of the truly excellent book released earlier this year, entitled The Cult of the Presidency: America's Dangerous Devotion to Executive Power. Gene, thanks very much for joining me today.
Gene Healy: Thanks Glenn, and thanks for the compliments about the book. Appreciate it.
GG: My Pleasure. I want to begin by asking you about this story that was published this morning in the Washington Post, which in its first paragraph reported "the US military expects to have 20,000 uniformed troops inside the United States by 2011, trained to help state and local officials respond to a nuclear terrorist attack or other domestic catastrophe," according to Pentagon officials.
Now, I first wrote about this story six or eight weeks ago, as a result of an article in the Army Times that reported that there was going to be a single brigade of 4500 troops coming from Iraq, which would for the first time be permanently deployed inside the United States. At the time I wrote about some of the dangers of this precedent and a lot of people angrily responded, including some liberals and people across the spectrum, saying that, "look, this is just one brigade, it's only 4500 troops, what damage could possibly be done, this is anti-military hysteria that's fueling this controversy." And now it turns out that the plan actually calls for 20,000 uniformed troops to be deployed inside the United States.
Talk about, if you can, what we know about this new plan. Has there been a change in the plan? What is it that we know about the impetus behind it and the rationale that's being offered?
GH: Well, I wish knew a lot more, and I know that the ACLU has filed a Freedom of Information Act request trying to get more information on the initial deployment of the 3rd Infantry Division's first brigade combat team, which was the 4500 troops that you mentioned from the Army Times article back in October. But, as for the rationale, I think there's been a tendency toward creeping militarization, particularly in the Bush administration, and I think it stems from the idea that because the army is good at its appointed task in most cases, that it's this panacea for every high-profile event, whether it's a potential security threat, the threat of disease, or a hurricane.
So we've seen a lot of disturbing proposals about using the military come out of the administration from very early on. Right after 9/11 there was the Transportation Secretary at the time, Norm Mineta, wanted to put Delta Force soldiers on domestic flights to guard against hijacking. And you had a number of memos from John Yoo suggesting, among other things, that the Fourth Amendment doesn't apply in domestic military operations and the Posse Comitatus Act may be a dead letter.
So there's been this thrust toward greater use of the military domestically throughout the Bush administration, at least since 9/11, and I wish I could say I knew the policy rationale for it; unfortunately I think it's just intends to be a reflection of the power grab.
GG: Let me ask you about the argument -- and you're quoted in the Washington Post as articulating it as you did when I asked you that first question -- that there's something concerning or even dangerous about this trend. What's your response to the following argument: we already have the National Guard which is, by design, trained to engage in some of these functions domestically inside the United States.
What really is the difference? Is there a meaningful difference between relying on the National Guard for these tasks, and deploying US combat brigades, or army brigades inside the United States to perform them?
GH: Well, ideally, the way they should go is the military is a last resort; it's not a first responder. And you have ascending levels as the incident becomes more serious, as the threat becomes more serious; you want your first responders, your people on the ground, your state and local officials to handle any incident. If they're overwhelmed, you want National Guardsmen under the command of state governors, and only as an extraordinary last resort -- which is the way it has been in American law -- do you want to have active duty, combat-trained federal troops who are under the command of the president. That's sort of the nuclear option in domestic disaster response.
And I think there are any number of reasons that we ought to try to maintain that line. One is that soldiers are trained as warriors, which is how they should be trained. But they're not trained as cops, and they're not trained in the sort of crowd control and civil disturbances -- the sort of training that the National Guard gets more frequently and has gotten more frequently, particularly since Kent State.
Now, can we imagine scenarios where a federal response with active duty military might be appropriate? Yeah, I think we can all imagine scenarios where that might happen. But what the thrust of the administration's is that you're going to have, by 2011, 20,000 troops that are permanently dedicated to this sort of [combat] mission. And I think one of the dangers there is if you remember the line from Colin Powell's autobiography recently, where he's talking about an exchange he had with Madeleine Albright; she says, what's the point of having this wonderful military you're always talking about if we never get to use it? I think there's a fear that there will be increasing mission creep when you have 20,000 troops dedicated to homeland security functions. And I don't think it's remotely necessary.
GG: Right. One of the things that I found notable and bothersome about the Army Times article was that article actually purported to detail the training that these troops -- when they were redeployed from Iraq where they had spent the last three years in a combat mission -- were to receive upon being redeployed to the United States, and it was things like, as you alluded to earlier, crowd control, the use of non-lethal force such as tasers.
Do you think there is a danger of taking, as you say, trained warriors out of a war zone after three years, and sticking them into a domestic situation with a couple of months of training and telling them that part of their duties are things like crowd control and keeping the peace? Is there a unique danger in trying to train brigades that were just recently, and for quite a long time, engaged in a war mission in a foreign country, and asking them to perform tasks inside the United States?
GH: Yeah, absolutely. I think the danger goes two ways. You've got the danger of collateral damage to American life and liberty, you've had -- a good example of that was 1997, the Esequiel Hernandez incident, where an American high school student was killed on the Texas-Mexico border because he ran into a Marine Corps anti-drug patrol. So, you can train around that, and you can take folks like the First Brigade combat team who are first-rate warriors, and give them training so they interact better with civilians, but then from what I understand the same unit is going to be redeployed into Iraq in about a year.
You're training soldiers for two fundamentally different functions, and functions that we really don't want to blur. You're training them for combat, and you're training them for interacting with citizens at home who have constitutional rights and where the rules of engagement do not have you responding with overwhelming force. So I think it's dangerous in terms of domestic militarization, in terms of the interaction with citizens, but I also think it's dangerous because when you have to retrain soldiers so they're capable of performing these functions, you're also undermining military readiness at the same time.
GG: I want to ask you about this remark that you made that's quoted in the Washington Post article, where it first cites the fact that the ACLU, their national security project, is objecting to this deployment on the grounds that it might be the first example of a series of expansions in presidential and military authority. I actually the ACLU back when the Army Times article came out about their Freedom of Information Act where they're at least attempting to get some information about what the purpose of this deployment is, because needless to say, like most things that our government does, it's being kept secret.
The Post article goes on to quote you as saying, that you were concerned about
". . .a creeping militarization. There's a notion that whenever there's an important problem, the thing to do is to call the boys in green," Healy said. "And that's at odds with our long-standing tradition of being wary of the use of standing armies to keep the peace."
Talk a little bit about that tradition of wanting to avoid the use of standing armies to keep the peace. How was that tradition expressed? How is it reflected, and why should be care about that tradition?
GH: Well, I think it goes back to the American Revolution, the Boston massacre, even before that, the very intense hostility that the colonists had to standing armies because they could be used as a tool of executive repression. So with the Posse Comitatus Act, we get the civil war, but some of the folks who voted for it saw it as enshrining a principle that was already in the Constitution, that the army is more or less designed to play war games, and it should not be turned inward because there are huge dangers with that.
Now, whenever you have a story like this, various corners of the Web people will spin some scenarios that may not be realistic. I see the danger less that this the first step to martial law, and more that it really puts us on the path of weakening democracy in this sense: When you have that reflex that, oh, if it's something very important, if it's hurricane response, or a public health emergency, the drug problem in America's inner cities, it becomes easy to reach for the military option just as we've reached for it too much abroad. The same problem and the same dynamic can occur at home where there's this notion that civilian institutions are weak and messy, and if you're really serious about a problem, you have to get the military involved in some way. I think that is something that's fundamentally at odds with the way we have always done things and fundamentally at odds with the principles of free society.
GG: Let me ask you about that idea in the context of executive power, which is the topic of your book, and it's actually quite a related theme, related to the one you just described, which is that increasingly the United States has turned, in terms of every problem that we have, to the prospect that the solution lies in something that the president can do. That every time there's a problem, we think about how we can further empower the president to solve that problem, and that's part of what has led to the wild expansion of executive power. That it's not just a formal expansion in terms of the authority we're investing in that office, but a more conceptual expansion in terms of the expectation that we have from this person who was designed originally be a limited functionary executing laws into this all-purpose national leader, who guides us and leads us in almost unlimited ways, hence your title, The Cult of the Presidency.
What do you think are the prospects for reining some of that in, if any, under this new president, who has at least paid lip service in the past to reversing some of the excesses of the last eight years (at least), even though, as you document, these excesses go back a lot longer than just eight years. But he's at least acknowledged and demonstrated that he has an understanding of these basic issues and the need to reverse them. What do you think are the prospects for that, and what kinds of things are you going to be looking for?
GH: Well, I think some of the early signs are quite promising. I do think that he's sincere on some of these issues. Of course, as you documented, he did flip-flop on the warrantless wiretapping issue. As the campaign heated up, as he got closer to actually becoming president, that some of his statements that he's made since the election -- as you point out, the devil's in the details, but he does seem sincere about ending torture and closing Guantanamo.
I think there's a really interesting tension with Obama, though, because on the one hand, his public positions on executive power are as sound as you might expect a successful candidate's to be in 21st-century America, but he's also raised expectations about the office to an insanely high degree, and they were already insanely high. In other words, the idea that the president is this national guardian angel who can heal the economy and teach your children well and save the world -- I don't know of anybody in the last 30 years who has raised expectations for what the office is capable of as much as Obama has. I think that will be interesting to watch how it plays out, because I think one of the reasons we have failed presidencies is because no one can provide the goods and services that the modern president is expected to provide.
So there's the tension where he is talking about restraining his own powers, backing off some of the extravagant claims about executive power that the administration has made; at the same time he's stoking expectation for the benefits and miracles the office can provide. The other factor that I think is going to be something to watch is I think it's very difficult for a president who is vulnerable to the charge of being quote-unquote "soft on terror" -- whatever that means -- it will be very difficult for a president in the position that Obama is going to be in to down-size his own powers.
I think that's one of the things that Jack Goldsmith, the former OLC official, who wrote The Terror Presidency, that his book is really insightful on, that: yes, the growth of executive power in the Bush years was in large part driven by ideologues who were independently dedicated to a strong presidency, but there was also a notion that the president is responsible for anything big that happens in the country. If there's a bomb that goes off in a subway car, he's politically liable for that in some sense.
That dynamic, particularly for a president in Obama's position, is going to make the president reluctant to give up surveillance authority, reluctant to in any way tie his hands in advance. And that goes into the dynamic I talk about in the book, which is great responsibility leads to great power. The fact that the president is expected to save us from hurricanes and provide perfect protection from any possible terror threat, is one of the factors that makes presidents seek more and more power. And until we reduce our expectations and have more modest, humble, and business-like expectations of what this figure is supposed to provide, I think that dynamic will continue to go on.
GG: Let me just explore that a little bit, because there's no question that Obama ran on a platform of extraordinary amounts of government activism. There were all kinds of promises about all sorts of sectors of our society from the military to our foreign policy and probably most aggressively our economy that he vowed to revitalize using the powers of his office. And there's a perception at least that there are severe crises in all of these realms, most particularly the economy, where, as you just alluded to, there's an expectation not just among his supporters, but I think across the political spectrum. Certainly the media and the citizenry at large, that the responsibility given all those promises now lies with him.
A president go about exercising great power in one of two ways. One ways is to do what the Bush administration did, which is just to seize these powers unilaterally without the cooperation or participation of any of the other branches of government. The other way, though, is to go to Congress, and have Congress authorize, or rubber-stamp, or agree to whatever it is the president wants to do, and of course one of the criticisms of the Bush administration from Jack Goldsmith and others, was that most of what they did, they could have gotten Congressional approval for, because Congress was so compliant, especially after 9/11 and through most of the Bush presidency.
They could easily have gotten Congress to sign on to most of what they wanted to do, as I suspect will Obama be to get a grateful Democratic Congress signing on to whatever this president wants to do, given he is much more politically powerful and popular than they are. Does it really make a difference from the perspective of reining in executive power if Obama does all these extremely activist measures to interfere and intervene in all parts of the economy and foreign policy, if he does it with a compliant Congress just rubber-stamping what he wants to as opposed to doing it all unilaterally?
GH: Well, I suppose it would be better if rather than conduct the warrantless wiretapping program in secret for several years, and unilaterally, that George Bush went to a compliant Congress and got it authorized, but then on the other hand, we're in the same position with the substantive policy that we think is a problem.
GG: Right. Just along those lines, Bush began detaining people without process and interrogating them beyond previous limits and spying Americans without warrants. He began by doing that in secret and in violation of congressional statute. Once it was revealed, Congress ended up endorsing it, both retroactively and prospectively, both Republicans and Democrats. Certainly, that's symbolically better, but it is meaningfully and substantively better?
GH: No, not in any substantive sense. It's right that the administration may have come at us with more power had they pursued that strategy, but I think from a civil libertarian and a constitutionalist perspective, it's not your preferred outcome. I think if Obama does feel that he needs more power, being more politically savvy than Bush, and probably more respectful of procedural niceties, I think he will seek power from Congress and get most of what he wants.
One of the interesting things about the Bush years, though, is there's always this adage, I think from Richard Neustadt, that presidential power is the power of persuasion, and once you've spent your political capital you don't get any more powerful. And the last couple of years under Bush really gave the lie to that adage, because he, with his popularity plummeting, continued to get more powers from Congress.
In October, there was the Military Commissions Act; you got at the same time the changes to the Insurrection Act after Katrina that were in effect for about two years where the president could essentially become military commander in any disaster area regardless of the objections of the state governors. And as he's going out of office with historically low popularity, you've got a treasury secretary with nearly carte blanche to remake the commanding heights of finance. So you're left with an extraordinarily powerful executive that got more powerful even as most of the country had decided that this was a president who couldn't be trusted with power and would not wield it wisely. So, it really is a dilemma, and good intentions coincide. I don't know how any one president can get us out of this.
GG: That's really why I asked, what you just pointed to, that series of episodes with an incomparably weak president nonetheless getting everything he wants from the Congress really underscores the fact what we have is just an inherently dysfunctional Congress, and an extreme imbalance of power, where Congress has willingly acceded all of its responsibilities and any meaningful role that it plays in our system of government. Maybe it's because they'd rather not have the burden of having to govern as the Constitution requires them to do.
Maybe there's just something inherent about how we elect people to Congress now that makes them so impotent and eager to cede power to the president, but in order to restore, at least from a constitutional perspective, this balance of power to limit the president - that's why it seems to like it's good enough for Obama to simply get Congress to sign on to whatever he wants to do. Bush was able to do that, and did that in the last few years.
It's not even so much what Obama needs to do or can do, it's really Congress that needs to reassert its authority and the role it's designed to play in our system of government to serve as a check and a limit on presidential power. Symbolic votes where Obama gets everything he wants, is, as I said, symbolically preferable, but doesn't seem to me that it would do very much to truly restoring the constitutional balance. You really need Congress to decide that that's important and to do that.
GH: Yeah, and I do think it does come back even one step further: in order for that to happen, you need people who are willing to vote for or against their congressman based on whether they're willing to be held accountable for large issues like war. There's a good reason the Iraq War resolution, in 2002, took the shape that it did. Because it was a lot more effective for Congress to punt the final decision about war to the president, and then support the war if it looks like it's going well, criticize the war effort if it looks like it's going bad.
So you had a resolution that was structured in such a way that it gave the president all the power to use all necessary and appropriate force when he determined that it was worthwhile to do so, which he did some six months later, and then you have virtually everyone who voted for the resolution denying that they voted to give the president the power to go to war. John Kerry, Hillary Clinton, John Edwards, and down the line, all saying they were for it before they were against it, or vice versa. And the reason that happens is, in part, because nobody suffers any political punishment for it, and it becomes a rational for congressmen to delegate their most important responsibilities and to pass out the pork.
So I think, yeah, there needs to be a sense of institutional responsibility in Congress, and one way we have to reinstill that, is that people have to take it seriously and exact a price when their representatives duck issues like war and peace.
GG: Absolutely. Alright, Gene, thanks very much. The book, again, is The Cult of the Presidency: America's Dangerous Devotion to Executive Power. It was released earlier this year, but I think it has particular relevance and resonance now as we head into a new administration, and you can also read various publications that Gene writes at the Cato site, and his own site, which I'll provide a link to, and his criticism of the new military appointment is included today in the article in the Washington Post. Gene, thanks very much for taking the time, I appreciate it.
GH: Thanks, Glenn.
[Transcript courtesy of Thames Valley Transcribe]
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