Sunday, January 4, 2009

Memo To Obama: Remember Promises of Humility

By RUSSELL A. MILLER Guest columnist at the Tampa Tribune

In the first year of his presidency George W. Bush was forced to confront the crisis of global terrorism. He responded by aggrandizing his power as president under the theory of a "unitary executive." The controversial and thoroughly repudiated policies that resulted, including warrantless surveillance of Americans' phone conversations, torture, and disregard for the basic constitutional rights of detainees, represented the most sweeping assertion of unchecked executive power in generations.

It was a credit to his campaign that Barak Obama strenuously rejected President Bush's vision of an all-powerful president and promised that, if elected, he would operate within constitutional and statutory restraints that had been flouted by the Bush administration.

That was before Obama won the election and acquired the powerful mantle of the presidency. And that was before it was clear that his first year in office also would be dominated by a crisis, albeit this time taking the form of a severe recession.

But what was worth criticizing with respect to the Bush administration goes equally for the Obama administration. The president-elect campaigned for a less robust presidency. It would be an unfortunate and ironic turn if he now invoked the faltering economy to justify an executive power grab.

To keep his promise President-elect Obama should revisit the $700 billion bailout bill enacted by the lame-duck Congress in September and insist upon congressional oversight of the use of the rescue funds. He should refuse to sign any future legislation that seeks to respond to the economic crisis but fails to ensure the executive branch's political accountability through congressional oversight. He should refuse to follow President Bush's alarming example in awarding billions in emergency bailout dollars to the auto industry when Congress expressly had refused to do so.

In the face of the Bush administration's national security abuses I argued that Congress must restore the checks and balances within which our federal government was meant to operate. I won't change my tune because there is a different party in the White House or because the crisis this time is economic in nature.

Our finely wrought system of constitutional governance gives Congress the responsibility for formulating and enacting policy through deliberative and representative processes. This system makes us our own masters. Threats and crises always have been used to justify expansions of executive power, but doing so fosters unchecked and unaccountable power that often operates beyond our reach and against our interests.

This should have been established, once and for all, by the 1975 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. The "Church Committee," as it came to be known after its chairman, Idaho Sen. Frank Church, pursued a sweeping investigation of the executive branch's Cold War abuses in the secretive intelligence and security empire that successive presidents from both parties had built up beyond the reach of Congress.

The 14 volumes of reports the committee produced remain the most comprehensive public accounting of the workings of America's shadowy intelligence community. They reveal a confounding range of compromises and crimes that were justified as necessary to counter the nuclear-armed threat posed by the Soviet Union.

Americans were spied on. Foreign leaders were assassinated. Martin Luther King Jr. was blackmailed. In the words of Frederick A.O. Schwarz Jr., counsel to the Church Committee, these executive excesses did not make us safer and they certainly made us less free. We should have been consulted, via Congress' oversight of these activities, on these dreadful policies.

The parallels between the work of the Church Committee and the Bush administration's abuses in the war on terror are clear. The president again betrayed our highest principles in order to spy on Americans at home and to undertake human rights violations abroad. But the Church Committee stands for a more general lesson that is no less relevant for President-elect Obama as he responds to the worsening economic crisis.

The Church Committee's investigation stands as a monument to faith in constitutional governance and a stubborn commitment to the Founding Fathers' vision of limited and representative government secured by checks and balances, even in the face of serious national trials. Obama is being handed billions of dollars in discretionary authority to confront the economic crisis. He would be wise to wield that power humbly and with due deference to Congress, just like he promised he would.

Russell A. Miller is an associate professor of law at Washington & Lee University School of Law. Contact him at

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