Executive Power Dos and Don’ts

This week and last, Slate is publishing three exclusive excerpts from The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack L. Goldsmith. Goldsmith served as head of the Office of Legal Counsel from October 2003 to July 2004. It was his job to advise the president on the legal boundaries of executive power. But when Goldsmith began to review the legal work of his predecessors, he became concerned that part of the legal framework limiting the conduct of the military and intelligence agencies in the war on terror was profoundly flawed. Attempts to fix those mistakes led to a legal upheaval in the war on terror, a series of clashes with David Addington, Vice President Dick Cheney’s then-legal adviser, and ultimately to Goldsmith’s resignation less than 10 months later. Today’s selection compares Bush’s approach to a strong executive branch with that of FDR.

We can learn a lot from Roosevelt’s tactics in responding to a national security threat that he believed the public did not understand and did not take seriously enough. The first lesson is the importance of consultation and consent, even during a crisis. Americans expect presidents to act aggressively to protect the country, especially in an emergency, even if it means skirting the law. Presidential scholar Clinton Rossiter once said that if a president is not “widely and persistently accused in his own time of ‘subverting the Constitution,’ he may as well forget about being judged a truly eminent man by future generations.” One of the marks of a great president is successful leadership in times of crisis. Because the law is not always designed for or up to the task of the crisis, successful leadership sometimes requires bending or breaking the law. But how a president does this matters, as Roosevelt’s handling of the destroyers deal shows.

Roosevelt the lawyer frequently derided the “legalists” who obsessed about what he viewed as technical legal restrictions during time of crisis, and he was not reluctant to stretch the law when he thought the situation demanded it. But he always worried intensely about larger elements of political legitimation for his actions. When election politics and the press of time made it impossible for Congress to give him formal statutory approval for the destroyers deal, his strategy was to consult widely and to receive consent from important American institutions—the people, the Congress, his cabinet, the parties, the press—on a less formal basis. “Contrary to the latter-day view that a strong President is one who acts without consultation and without notice, Roosevelt [in the destroyers deal] proceeded with careful concern for the process of consent,” Schlesinger wrote in 1973, implicitly comparing Roosevelt with Richard Nixon. Though the destroyers-for-bases deal “was unilateral in form,” Schlesinger continues, “it was accompanied by extensive and vigilant consultation—within the executive branch, between the executive and legislative branches, among leaders of both parties and with the press.”

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The Bush administration’s go-it-alone approach to many terrorism-related legal policy issues is the antithesis of Roosevelt’s approach in 1940–41. It is a truism among political scientists and historians who study the American presidency that a president’s authority is not measured primarily by his hard power found in the Constitution, statutes, and precedents, but rather by his softer powers to convince the other institutions of our society to come around to his point of view. “The power to manage the vast, whirring machinery of government derives from individual skills as persuader, bargainer, and leader,” Schlesinger said, echoing the famous thesis of presidential scholar Richard Neustadt. The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action, and legalistic defense. This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.

Whereas Roosevelt was famous for consulting widely (though not always transparently) within and without his administration before making momentous wartime decisions, the Bush administration is famously secretive and close-looped in its deliberations. The controversial legal analysis underlying the destroyers-for-bases deal was widely vetted beforehand, both inside the government and to the public in a famous letter to the New York Times written by Dean Acheson and Ben Cohen. Many important legal decisions in the Bush administration, by contrast, were made by a very small and largely like-minded group of lawyers, and announced, if it all, without outside consultation. This led to two kinds of problems. The first was that these lawyers made legal and political errors that became very costly to the administration down the road. Many of these errors were unnecessary and could have been avoided with wider consultation. The second problem, perhaps paradoxically, was excessive leaking. “[W]hen everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection or self-promotion,” Justice Potter Stewart said in the Pentagon Papers case, anticipating what would happen in the Bush administration three decades later.

The administration also eschewed genuine consultation with Congress, both formal and informal, with members of the president’s own party as well as members of the opposition. Political debate is one of the strengths of a democracy in wartime, for it allows the country’s leadership to learn about and correct its errors. The Bush administration’s failure to engage Congress eliminated the short-term discomforts of public debate, but at the expense of many medium-term mistakes. It also deprived the country of Lend-Lease-like national debates about the nature of the threat and the proper response that would have served an educative and legitimating function regardless of what emerged from the process. And it hurt the executive branch in dealing with the third branch of government as well. Courts have been much more skeptical of the president’s counterterrorism policies than they would have been had the president secured Congress’ and the country’s express support. 

Some will say that presidential-congressional relations are a two-way street, and that in the last six years Congress has dropped the ball in exercising its national security responsibilities. This is largely true but unsurprising. In matters of war and security, Congress’ natural posture is to inquire and complain but not make hard decisions. This attitude minimizes congressional responsibility and allows Congress to decide whether to jump on the bandwagon or confer blame, depending on how things turn out. “Decisions on war and peace are tough, and more to the point they are politically risky,” says constitutional scholar John Hart Ely, explaining why Congress shies away from real decisionmaking on such issues.  “Accountability is pretty frightening stuff.” The president cannot avoid accountability for national security decisions. But he can spread the accountability, and thereby minimize the recriminations and other bad effects of the risk-taking that his job demands, by forcing Congress to deliberate, argue, and take a stand. The Bush administration’s failure to do this has often left the president alone, holding the bag, as things have gone wrong. Forcing Congress to assume joint responsibility weakens presidential prerogatives to act unilaterally. But it strengthens presidential power overall, as Roosevelt understood.

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The best evidence of the administration’s indifference to politics in the sense that Roosevelt understood it, the clearest sign of its lack of concern with public credibility, is its open chest-thumping about the importance of maintaining and expanding executive power. The public worries about excessive presidential power in times of war, and a prudent president tries to assuage and meet these concerns. Lincoln and Roosevelt were as powerful as any presidents we have ever had. But they never talked publicly about the need to expand their power as a matter of principle, for doing so would have been self-defeating and politically unwise. When they exercised extraordinary authorities, they did so with a grudging public face, with expressions of respect for constitutional values, and with explanations about why the steps were an unfortunate but necessary means to an important national security end. A good example of the administration’s antithetical approach is the signing statement that President Bush attached to a 2005 law prohibiting “cruel, inhuman, or degrading” treatment in interrogation that placed modest new limits on the president. The law was sponsored by Sen. John McCain of Arizona and initially opposed by the White House. After weeks of negotiation, President Bush invited Sen. McCain to the White House for what the Washington Post described as “a public reconciliation” and a declaration of a “common objective” to make it clear to the world, as President Bush said, “that this government does not torture and that we adhere to the international convention of torture.” And yet as soon as the bill became law, President Bush issued a statement saying that it might violate his commander in chief powers and he might not always act in compliance with it.

Presidents have issued “signing statements” for many purposes, including to announce their belief that all or part of the statute in question may be inconsistent with the Constitution. But a signing statement serves no formal legal purpose. If President Bush later felt he needed to act in a way contrary to the McCain law, he could have made and acted upon and published the decision at that time without any prior signing statement. The only thing achieved by the statement at the time the president signed the bill was to spoil the tentative consensus and goodwill that had been reached with Capitol Hill on the issue, and further enflame mistrust of the president.

Roosevelt faced a similar issue in connection with the Lend-Lease statute. The statute contained a provision that allowed two houses of Congress, without the consent of the president, to veto particular decisions that the president made under the law. Roosevelt thought this arrangement violated the separation of powers. He signed the law nonetheless because of its obvious importance. But he worried about the precedential effect of the legislative veto in the statute. So he told Attorney General Robert Jackson to draft a formal memorandum explaining why the act’s veto provision was, in Roosevelt’s words, “clearly unconstitutional.” Roosevelt decided, however, that he should not immediately make public the “signing statement” that contained his constitutional objections. He worried, Jackson later explained, that doing so “might seriously alienate some of his congressional support at a time when he would need to call on it frequently.” He also worried that immediate public disclosure of his objection might “strengthen fear in the country that he was seeking to increase his personal power.” 

The contrast between the two presidents’ approaches raises one of the great puzzles of the Bush administration: Why did the administration so often assert presidential power in ways that seemed unnecessary and politically self-defeating? The answer, I believe, is that the administration’s conception of presidential power had a kind of theological significance that often trumped political consequences. The interrogation signing statement was motivated by the same impulse that produced the unsuccessful unitary executive defense of the U.S. attorney firings, the speeches about the administration wanting to leave the presidency stronger than it found it, the interrogation opinions’ overbroad commander in chief claims, the go-it-alone strategy with Congress, the resistance to judicial review, and many other politically damaging public assertions of executive power that have characterized the Bush administration. Roosevelt’s approach, by contrast, might be seen as an example of his famous duplicity. But it was also less ideological, more pragmatic, and more sensitive to political consequences than the Bush administration’s approach. And it was premised on the notion that presidential power is primarily about persuasion and consent rather than unilateral executive action. The tactics of democratic leadership that Roosevelt employed in 1940–41 will not invariably succeed. Sometimes the attempt to convince the country or the Congress about a threat will fail, sometimes bipartisanship will backfire, sometimes being pragmatic rather than principled will seem opportunistic and induce distrust. But the Bush administration’s strategy is guaranteed not to work, and is certain to destroy trust altogether. When an administration makes little attempt to work with the other institutions of our government and makes it a public priority to emphasize that its aim is to expand its power, Congress, the courts, and the public listen carefully, and worry.