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Checks, Balances and National Security

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Ben Wittes points out, correctly, that although Jack Goldsmith has been critical of some aspects of the Bush administration he remains a statist conservative. (“Jack Goldsmith is no human-rights lawyer,” says Wittes; he means this as a compliment.) But while I certainly agree that expanding executive power via Congress is preferable to the Yoo strategy of just making farcical arguments about the Constitution granting unlimited arbitrary war-making authority to the executive, it hardly follows from this that all expansions of executive power are desirable. I haven’t received the Goldsmith book yet, so I can’t judge the quality of his arguments, but Wittes seems, as he has before, to simply assume that expansions of executive authority enhance national security. For example, he continues to misconstrue the criticism of the recent Democratic capitulation on FISA:

The idea that the president ought to have a fairly free hand in the war on terrorism, but that the source of his freedom should be congressional permission for bold action, rather than broad claims of inherent presidential power, lacks much of a constituency today. The ire directed at Democrats who supported the recent temporary FISA amendment is one dispiriting indication of that.

Except, of course, that most of this ire was not based on some principle that congressional expansions of presidential power are inherently wrong. To repeat, the Senate leadership and the administration hammered out a deal that would expand power in some ways, but retaining clear definitions and meaningful oversight. Unless “fairly free hand” means “virtually unconstrained arbitrary power,” there’s no necessary contradiction here.

And this is related to the overall problem with the assumption that expansions of executive power — especially those that remove any oversight — improve national security. But this assumption is false. As Stephen Holmes argues in his recent book:

Would weakening the constitutional system of checks and balances, for example, help the executive become more focused and less reckless? This is unlikely. Indeed, the Administration’s desire to circumvent traditional checks and balances patently weakened its capacity for critical thought and self-correction, preparing the way for its gratuitous invasion to invade Iraq. To defend ourselves against our most dangerous enemies, we do not need unrestricted government, We need intelligent government. And no Administration that shields itself compulsively from criticism has a prayer of being even sporadically intelligent.

While Congressional delegation of unconstrained power to the executive may be more legally defensible, it doesn’t solve the underlying problems that caused the framers to place constitutional constraints on executive warmaking power in the first place. Particularly relevant here is that under the FISA bill that was passed Congress has no effective way of knowing in many cases whether the policy is working or not. Not only is this bad for civil liberties, it’s bad for national security, unless you believe that it’s sound policy to place blind faith in the competence and judgment of an administration whose competence and judgment have repeatedly proven to be catastrophically bad.

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