Thursday, December 29, 2005

I Love the 70s!

Seventies retro is all the rage in fashion and music, so it was just a matter of time before it showed up in politics. In all of the discussions about the NSA wiretapping story, perhaps the most interesting is the Bush Administration's assertion that the president's power as commander in chief allows (compels?) him to ignore or violate existing laws in order to safeguard the nation's security. Hmm? Where have I heard that one before?

The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

FROST: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON: This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South—

FROST: But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense—is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON: No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.


Anonymous said...

A yes, the 70's a time of congressional overreaching, exemplified not only by FISA (1978) but also the War Powers Act which every President since it was enacted (over veto)has determined was unconstitutional. The Nixon debacle followed by the huge Democratic Congressional majorities lead to a sharp attack on Presidential authority. The gross imbalance between the branches of that time, as seen by the laws of dubious Constitutional vitality being enacted at the executives expense, should not be taken as a base line for what is either legal or Constitutional. Congressional hubris of this sort ought to be relegated to the same bin as old pet rocks.

John J. Vecchione

Philip Klinkner said...


So if the congressional responses to Watergate and other abuses of executive authority aren't the baselines, what are? Should we endorse the Nixonian view of almost unlimited executive power? Personally, I'm willing to grant some leeway for the type of surveillance that the the NSA engaged in, but it should be authorized by statute and have some judicial oversight. But then again, maybe not since we don't everything about this program. I'm not willing to approve something on blind trust.