The Imperial Presidency: How The Expansion Of Executive Power Is Eroding Our Civil Liberties

Would you trust yourself with power? Most people, I suspect, would answer yes. People who actively seek great power would answer yes emphatically. So we should not be surprised when U.S. presidents trust themselves with awesome, unaccountable powers and bridle at checks and balances.

That many civil libertarians, like me, were unpleasantly surprised by Barack Obama’s autocratic tendencies is a measure of our own naiveté. If we could not have precisely predicted his war on whistleblowers and reporters and his targeted assassination program, among other abuses, we should have been prepared for them.

I don’t think I’ll be fooled again. I don’t take at face value Obama’s latest call to close Guantanamo and embark on more rational, less repressive anti-terror policies. I’m not reassured by the prospect of what would likely be a rubber stamp drone court. And if this proposed policy shift is better late than never, it is awfully late and perhaps not much better.

Whoever we elect may end up as much a captive as commander of the post 9/11 national security/surveillance state.

One lesson of the Obama presidency is the inevitability of presidential power grabs, especially in a high tech age of terror. For the foreseeable future, the men or women we elect will also offer the usual rhetorical tributes to the idea of freedom, while denying it in practice, buoyed by a belief in their own essential goodness, the rightness of their judgments and the necessity of exercising them in secret.

Twenty-first century presidents, imbued with unprecedented technological capabilities, are likely to trust themselves to monitor our freedoms more than they trust us to use them responsibly. From this paternalistic perspective, monitoring freedom is a way of protecting it. So, Obama can profess support for free speech, with a semblance of sincerity, even as he presides over the criminalization of political reporting.

Former New York Mayor Rudy Giuliani would understand: “Freedom is about authority,” he famously and unself-consciously remarked. “Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.”

Well, no one ever accused Giuliani of respect for civil liberty. But even presidents who lack equally strong authoritarian instincts may find themselves agreeing with this perverse definition of freedom, or co-opted by the endless war on terror. Whoever we elect may end up as much a captive as commander of the post 9/11 national security/surveillance state.

Who governs us today? The people we elect or the shadowy, virtually indeterminate number of military, quasi-military, and national security personnel, employed by private contractors as well as the government? A 2010 Washington Post series tried heroically to answer this question.

It found that “Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States ... The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.”

This is not an excuse for the Obama Administration’s abuses. The president retains power to release some Guantanamo detainees, stop the drone program (which he now proposes limiting) and fire Attorney General Eric Holder. (There are a few neglected presidential powers he should exercise.)

Bi-partisanship has dramatically eroded our fundamental liberties. Trans-partisanship is required to restore them.

But recognizing the vast, unaccountable power of the post 9/11 shadow government is a reminder that, for the time being, no president is likely to challenge gratuitously repressive security measures and invite being labeled soft on terror. When Obama pushed back slightly with a nod to liberty in his May 23 speech, he was instantly attacked for handing “terrorists ... a victory.” No first term president who seeks re-election is likely to risk seeing that charge stick. No president is likely to control, much less attempt to dismantle the apparatus of the surveillance state, which both empowers and ensnares him.

This is, I know, a rather bleak vision of the near future. How can we most effectively confront it? By recognizing the profound assaults on liberty we’ve helped enable with our fears; by taking a long view and committing to a long slog against repression; by organizing locally, as well as nationally, across partisan lines, forging alliances between civil libertarians on the left and free market libertarians on the right. Under the Bush and Obama Administrations, Democrats and Republicans alike have supported humongous government in the form of the security state. Bi-partisanship has dramatically eroded our fundamental liberties. Trans-partisanship is required to restore them.

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