On That Secret Patriot Act
May 28, 2011

So a couple of days ago, President Obama (or, more accurately, a mechanical President Obama impersonator) signed off on an extension of several key provisions of the Patriot Act. TPM’s Ryan J. Reilly has a rundown of what we know about the provisions here. I say “what we know” because, as Spencer Ackerman reported a day earlier, we don’t know as much about the bill as we thought we did:

Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy ”dragnets” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

Because Wyden can’t elaborate on classified information, there’s no way for us to know for sure what the government’s secret interpretation of the act looks like. The closest we can get is probably Julian Sanchez’s circumstantial case for a secret expansion of the government’s geolocation tracking powers. And the same thing that goes for us rubes in the peanut gallery also goes for most of the Senators and House members who voted for the extension — Wyden has clearance to see the White House’s version of the law, but most of his colleagues don’t.

So to clarify: President Obama goes to Congress with an unmarked box tucked under his arm. He displays the box to the assembled Congresspeople and says, “You will grant me the power to use the contents of this box whenever I see fit.” Congress doesn’t inspect the box. Only a tiny handful of them look in the box, and what they see they keep to themselves. And the rest just affix their rubber stamp so they can get back to the real work of failing to pass a budget.

What I’d like to see is the list of Congresspeople who don’t have the clearance to see what this law really does, but blithely cast their vote for it anyway. Then I’d like to call up the offices of each and every one of them and ask them what they think Congress’ oversight duties are supposed to entail.

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DADT and Legislating from the White House
November 10, 2010

 

Gay flag

Confession: At first I was sort of conflicted about Adam Serwer’s suggestion that the president repeal DADT by executive order.Obviously I recognize that the military’s policy of discriminating against its LGBT members and forcing them to live in secret is a monumental moral outrage. And I also recognize the harm done to national security by a law that demands the senseless ostracizing of capable and patriotic Americans.

So what gave me pause? Well, just two days ago I wrote a whole column decrying the imperial presidency. Like Gene Healy, I think it’s high time that we put an end to the executive branch’s practice of legislating when they don’t want to go through the legislature. I’m not entirely unsympathetic to the notion that sweeping executive orders can be necessary in times of great urgency, but I don’t know the math for calculating that urgency threshold.

Lucky for us, Serwer addresses those concerns:

During the Bush years, liberals complained about his “imperial presidency,” and so the idea that Obama should simply end the policy by fiat would seem hypocritical. But the use of an executive order to end a policy a majority of Americans, including conservatives, want to end, is no more undemocratic than Republicans’ use of procedural maneuvers to thwart an up or down vote. Republicans holding the legislative process, and the fundamental rights of gay and lesbian servicemembers, hostage to their own homophobic prejudices, would still be the greater act of tyranny.

Here’s the thing: legislation by executive order needs to end. But it’s not a problem that exists in isolation. I would argue that a large part of the reason why the modern president is so powerful is because Congress has ceded him ground, both consciously and inadvertantly. They’ve done it consciously by passing legislative abominations like the PATRIOT Act, yes, but they’ve also done it by abiding by parliamentary rules and decorum (mostly in the Senate) that have paralyzed them on most weighty matters. The president has broad latitude to legislate in large part because the people who should be doing it aren’t.

That’s the case here. At this point, Congress should be able to repeal DADT. Were there not a 60-vote threshold in the Senate, they would have already. So in this case, I think an executive order is morally permissible — even required. As queasy as I am about the unitary executive, these are the rules of the game right now. There exist certain moral imperatives which we’re required to act on using any means those rules afford us.

If Obama takes Serwer’s advice, then we’ll come back to the issue of executive orders after he does so. But any attempt to limit the president’s power to set policy must be accompanied by an expansion of Congress’ ability to fill the void.

Crossposted at the League of Ordinary Gentlemen.

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