In yet another superb piece of journalism, the peerless Charlie Savage of The Boston Globe submitted to the leading presidential candidates a questionnaire asking their views on 12 key questions regarding executive power. Savage's article accompanying the candidates' responses makes clear why these matters are so critical:
In 2000, George W. Bush and Dick Cheney were not asked about presidential power, and they volunteered nothing about their attitude toward the issue to voters. Yet once in office, they immediately began seeking out ways to concentrate more unchecked power in the White House -- not just for themselves, but also for their successors. . . .Legal specialists say decisions by the next president -- either to keep using the expanded powers Bush and Cheney developed, or to abandon their legal and political precedents -- will help determine whether a stronger presidency becomes permanent.
"The sleeper issue in this campaign involves the proper scope of executive power," said Richard Epstein, a University of Chicago law professor.
All of the leading Democrats -- Edwards, Dodd, Biden, Clinton, Richardson and Obama -- submitted responses, as did Mitt Romney, John McCain and Ron Paul. Refusing to respond to the questions were -- revealingly -- Giuliani, Thompson and Huckabee. Significantly, if not surprisingly, all of the candidates who did respond, with the exception of Romney, repudiated most of the key doctrines of the Bush/Cheney/Addington/Yoo theories of executive omnipotence, at least for purposes of this questionnaire. I'll undoubtedly write more about those responses shortly.
But by far the most extraordinary answers come from Mitt Romney. Romney's responses -- not to some of the questions but to every single one of them -- are beyond disturbing. The powers he claims the President possesses are definitively -- literally -- tyrannical, unrecognizable in the pre-2001 American system of government and, in some meaningful ways, even beyond what the Bush/Cheney cadre of authoritarian legal theorists have claimed.
After reviewing those responses, Marty Lederman concluded: "Romney? Let's put it this way: If you've liked Dick Cheney and David Addington, you're gonna love Mitt Romney." Anonymous Liberal similarly observed that his responses reveal that "Romney doesn't believe the president's power to be subject to any serious constraints." To say that the President's powers are not "subject to any serious constraints" -- which is exactly what Romney says -- is, of course, to posit the President as tyrant, not metaphorically or with hyperbole, but by definition.
Each of the questions posed by Savage is devoted to determining the extent of presidential power the candidate believes exists and where the limits are situated. On every issue, Romney either (a) explicitly says that the President has the right to act without limits of any kind or (b) provides blatantly nonresponsive answers strongly insinuating the same thing.
Just go and read what he wrote. It's extraordinary. Other than his cursory and quite creepy concession that U.S. citizens detained by the President are entitled to "at least some type of habeas corpus relief" -- whatever "some type" might mean (Question 5) -- Romney does not recognize a single limit on presidential power. Not one.
And even with regard to his grudging allowance that American citizens should have "some type of habeas relief," Romney -- and only he -- implicitly endorses Alberto Gonzales' bizarre claim that -- despite the clear language of Article I, Section 9 -- "nothing in the Constitution confers an affirmative right to habeas corpus" (Question 9). Under this twisted Romney/Gonzales view, the right of habeas corpus -- which Thomas Jefferson described as "one of the essential principles of our government" and "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution" -- is not constitutionally guaranteed to Americans but can be revoked at any time, for any reason.
In every area, Romney explicitly says that neither laws nor treaties can limit the President's conduct. Instead, displaying the fear-mongering cowardice that lies at the heart of Bush/Cheney Republican power, Romney described the root of his view of the world this way: "Our most basic civil liberty is the right to be kept alive."
Romney recited that cowardly platitude -- what has now become the shameful flagship of the Republican Party -- in response to being asked whether the President has the power to eavesdrop on Americans without warrants even in the face of a law that makes it a crime to do so. At its core, the defining principle of the Republican Party continues to be a fear-driven repudiation of the American ethos as most famously expressed by Patrick Henry, all in service of keeping the citizenry in fear so the President can rule without limits.
These are just some of the powers which Romney -- and, among the respondents, Romney alone -- claimed the President possesses, either by explicitly claiming them or refusing to repudiate them when asked directly:
* to eavesdrop on Americans with no warrants, even if doing so is in violation of Congressional law (Question 1);* to attack Iran without Congressional authorization, even in the absence of an imminent threat (Question 2);
* to disregard a congressional statute limiting the deployment of troops (Question 3);
* to issue a signing statement reserving a constitutional right to bypass laws enacted by Congress (Question 4);
* to disregard international human rights treaties that the US Senate has ratified where said treaties, in his view, "impinge upon the President's constitutional authority" (Question 8)
Even more disturbing were the specific questions Romney refused to answer. When asked if the President has the right to use "interrogation techniques" that Congress, by law, has prohibited in all circumstances, here is what Romney said (Question 7):
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.
Mitt Romney is running for President and proudly refuses to say if he would obey the law regarding torture. Worse, he's citing national security as an excuse for refusing to answer the question. He's not even President yet, and he's already insisting that it's too Top Secret for him even to participate in the debate over the President's duties to abide by the law. Even considering where our country has been taken with these matters, that's an astonishing assertion -- that the Terrorists will win if Mitt Romney expresses his views on whether the President must obey the law.
Underscoring his authoritarian mentality, Romney refused to say that there was even a single "executive power the Bush administration has claimed or exercised that [he] think[s] is unconstitutional" or even that there were any which were "simply a bad idea" (Question 10). In Romney's view, the Leader has not erred at all. Rather, this is the caricature of a response he gave to that question:
The Bush Administration has kept the American people safe since 9/11. The Administration's strong view on executive power may well have contributed to that fact.
Romney perfectly expresses the driving view of our GOP-dominated political culture over the last seven years, as profoundly un-American as it is Orwellian: You are in grave danger of being slaughtered by Terrorists. The only thing that matters is that your Leader protect you. In order to be safe, you must place your blind faith and trust in the Leader. There can be no limits on the Leader's power -- not even ones you try to place on him through your representatives in Congress -- otherwise you will be in severe danger and might even lose your freedoms.
In a Washington Post Op-Ed this morning, historian and George Washington biographer Joseph Ellis labels Dick Cheney's quest for limitless presidential power "historically myopic" and writes:
Your opinion on the current debate about how much power the executive branch should have will be significantly influenced if you read the debates about the subject in the Constitutional Convention and the states' ratifying conventions. For it will soon become clear that the most palpable fear that haunted all these debates was the specter of monarchy.
Although one would not have thought it possible, a Mitt Romney presidency, by his own description, would remove us still further from those core principles. Romney isn't running to be President, but to be King. Anyone who wants to dispute that ought to try to distinguish the fantasies of power Romney is envisioning from those the British King possessed in the mid-to-late 18th Century.
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