On Friday, I emailed numerous presidential primary campaigns an invitation to participate in a New York Times survey project on executive power. Our intent is to publish the full answers of each participating candidate, alongside notations indicating which others were unwilling or unable to answer the questions. We gave the campaigns a one-month deadline of July 19. You can read the questionnaire below.
The idea is to ask would-be presidents to talk about their understanding of the scope and limits of the powers they would wield if elected – before voters decide whom to entrust with the presidency. One section also asks the candidates to reflect on how they would handle issues raised by what may turn out to be a reform era, in which Congress may pass bills seeking to curb executive power in response to Donald Trump’s serial violations of previous norms of presidential self-restraint, and the next president will have to decide whether to sign them into law even though that would mean constraining his or her own authority.
This is the fourth iteration of this project. It traces back to late 2007, when I was a Boston Globe reporter and had just written my first book, Takeover, about the Bush-Cheney administration’s efforts to expand executive power. Some of the most important controversies of that period had made clear that in the post-9/11 era, the constitutional views of a president and his or her legal team can be crucial – and yet nobody was asking the candidates about them in televised debates. After listening to me complain about that one too many times, my wife Luiza suggested I ask such questions myself, so I did so, leveraging the Globe’s window of outsized influence ahead of the New Hampshire primary. After moving to The New York Times, I repeated the project in late 2011 and in early 2016, each time updating the survey to cull some questions and add others addressing more recent disputes.
Robert had a very unusual personality. Despite being invariably gentle and genial, he was extremely private and incapable of the sort of chit chat and sharing details about one’s life that human bonds are normally forged from. Nevertheless, he made connections in his own way. /2
When I first came to the NYT from the Boston Globe in May 2008, the first story I pitched – about a Bush White House directive to get regulations done by a certain deadline so they’d be harder for the next administration to overturn – turned out to overlap with Robert’s turf. /3
I was afraid I’d gotten off on the wrong foot, because I’d heard the bureau could be viciously turf-protective. Happily, that image was obsolete, as I started to realize when he turned out to be gracious and just happy someone else cared about a nerdy regs legal policy issue. /4
So we ended up joining forces: I shared my first NYT staff-story byline with Robert. /5
From September 2015, when we moved back into the bureau after a renovation, until last August, when I moved desks, my cubicle adjoined Robert’s and we shared a bookcase. I often got in earlier than most reporters due to my family’s schedule, but Robert almost always beat me. /6
And he was almost always there when I went home, even if I worked late. So for a long time my work days typically began with “Good morning Robert” and ended with “Good night Robert.” To which he would smile broadly and nod vigorously, and very quietly return the greeting. /7
But Robert was “sphinxlike,” as his obituary aptly says. Despite sitting next to him for years, I learned only from his obituary that in college he had been on the staff of Harvard Advocate, the undergraduate literary magazine, a quarter century before I did the same. /8
(This place is lousy with alumni of the Harvard Crimson or some equivalent student newspaper at other colleges, as you might expect, so having instead built our extracurricular lives around the lit mag is unusual. With anyone else we would have discussed and bonded over it.) /9
Robert also wasn’t one for nerding out in conversation about issues either. But every few weeks he would hand me a printout of an article he thought would interest me about Gitmo or executive power, or that cited my work. These gifts were his way of forging a connection. /10
Here's a story: Before the renovation, the DC bureau was filled with government reports & binders of official documents dating back years, lining the top of every filing cabinet – a vast govdocs library spilling everywhere. Robert had assembled it over the decades. /11
(We all had to clear out all our stuff for the renovation. I wonder what he did with all that stuff. Was his house overflowing with it? None of us ever saw the inside of it.) /12
Anyway, at first I didn’t understand this all belonged to Robert, and thought it was just a jumble of discarded bureau stuff. I found among it an original copy of the congressional Iran-Contra report which I was interested in because of Cheney’s minority views on exec power. /13
So not understanding that it wasn’t generally available stuff, I moved it to my own shelf and forgot about it. Years later, after the renovation when we were seated next to each other, it ended up on my shelves of the bookcase we shared. /14
At some point it occurred to me that this actually came from his collection, even though he never mentioned it. I was embarrassed and moved it to one of his shelves and apologized. He just smiled – seeming, if anything, just pleased that I had appreciated a doc he preserved. /15
Our reporting did not often overlap but sometimes I would ask him a question when his health care policy expertise overlapped with my exec power stuff e.g. Obamacare enforcement issues, and he would respond with a lengthy, lucid email — essentially an article just for me. /16
Last August, I moved across the bureau to join the cluster of other colleagues who also write regularly about national-security and law-enforcement beats, so we could talk about stuff we were working on together without having to walk across the building. /17
On my last day sitting in my old cubicle next to him, Robert surprised me with a “going away” present – a bundle of large and fancy cookies from Teaism, tied up with a bow – and told me I’d be missed. /18
Our last co-bylined story was in February, over a three-day weekend, when we teamed up to write about a group of states suing Trump over his border wall “emergency” plan. /19
While I didn’t see him as much after moving desks, I made it a point to say hello to him at our Monday morning all-bureau staff meetings. On the morning of his stroke, he walked up to me at that meeting and we greeted each other and stood quietly side by side. /20
After he was taken to the hospital, I was among many NYT reporters and editors who went over to the ICU in shifts to sit with him. He was not in good shape and it was not clear how aware he was, but he seemed to squeeze my hand gently when I greeted him.
In response to a Freedom of Information Act request I submitted in the spring of 2017, the Privacy and Civil Liberties Oversight Board (PCLOB) has declassified and made public a partly redacted version of its December 2016 (ish) Top Secret report on the implementation of President Obama’s PPD-28, the presidential policy directive he issued in January 2014 to impose various surveillance reforms in response to the Snowden disclosures.
I reported on the insider history and substantive content of this directive in Power Wars’ Chapter 11 (Institutionalized: Surveillance 2009-2017), Section 12 (Obama Under Pressure – Freedom Act II). Among other things, I parsed how many of the reforms, especially viz limits on handling foreigners’ data, codified existing practices.
The PCLOB report confirms that assessment. It is riddled with sentences about how the NSA, FBI, and CIA were largely already doing what Obama instructed them to do in such respects. One exception is that the CIA apparently applied its limits (like a requirement to delete raw data after five years) to mixed-source collections — those that contained information gathered both through electronic surveillance and human-source intelligence — even though the directive on its face applied only to signals intelligence, not humint. The two Republican PCLOB board members at the time, Rachel Brand and Elisebeth Collins, didn’t like that.
Check out Christian Bale as Dick Cheney in this trailer for “Vice” that dropped today. This movie looks fantastic.
Chapters two and three of my first book, Takeover, were essentially an intellectual history of Cheney – why he had the views on executive power that he did, based on his previous life experiences – leading up to his ascent to power as the most influential vice president ever in Bush’s first term. You can read chapter two for free on this website, which gets you to the end of the Ford administration, when he was the youngest White House chief of staff in American history during the fallout from the Vietnam War, Watergate, and the Church Committee investigation.
UPDATE APRIL 7, 2019: I finally got around to watching this movie last night and had a mixed reaction. It was well acted and stylistically excellent in that Adam McKay way, but various inaccuracies bothered me.
It was probably inevitable that any movie would get the Unitary Executive Theory wrong (it used that phrase as a synecdoche for Bush-Cheney executive- power legal theories). But there were also omissions and distortions — particularly about Cheney’s intellectual history and beliefs (it portrays him as having none) — that I thought were unjustified by the sacrifices necessary to dramatize/simplify real-life events into a two-hour movie: they just made Cheney’s story less interesting than the reality had been, without any such silver-lining virtues.
(A friend had warned me I would have that reaction, which is why I didn’t rush to see it in the theater but waited for it to be available by streaming.)
Senator Tim Kaine, Democrat of Virginia, has sent a letter to the Pentagon continuing a dialogue about the executive branch’s expansive view of “collective self defense.” The letter contains an excerpt from a letter the military had sent him earlier this year, which is not public, in which it says that the US military has legal authority to defend partner forces with airstrikes even when their adversary is not a congressionally authorized wartime enemy of the United States.
We basically knew that already from last year’s strikes against Assad forces in Syria who were menacing U.S.-backed rebels who are also fighting the Islamic State. But Kaine wants to know more about who decides who counts as a defensible partner force, and what limits there are. What he is getting at is the question of whether the executive branch is using this theory to essentially seize unilateral mutual-defense treaty making powers for itself.
It will be interesting to see what the Pentagon replies.
The senators — including Jack Reed and Dianne Feinstein, the top Democrats on the Armed Services and Judiciary committees, and James Risch and Marco Rubio, both Republicans on the Foreign Relations Committee — blasted the fact that the State Department (under Mr. Pompeo’s predecessor, Rex Tillerson) shuttered the Office of the Special Envoy for Guantanamo Closure without bothering to reassign its former job of monitoring former detainees and managing any problems that might arise. Since the Trump administration failed to give that responsibility to another high-level, centralized office or bureau, it devolved by default to the long list of things individual embassies track, i.e. became an after-thought:
We are concerned the State Department does not have someone tasked with, and responsible for, oversight of detainees who have been transferred out of Guantanamo. While we are familiar with the administration’s change in policy with regard to Guantanamo’s closure, we believe oversight of former Guantanamo detainees remains a lasting issue. We urge you to immediately assign responsibility for the oversight of former Guantanamo detainees to an existing Bureau, such as Counterterrorism and Countering Violent Extremism, and dedicate an individual within that office to manage this issue.
But the senators’ letter focused not on Diyab’s emerging case, but on another problem that arose last spring: the case of Salem Abdul Salem Ghereby and Awad Khalifa, two Libyan ex-detainees who were resettled in Senegal. In April, the Senegalese government deported them to Libya; the senators’ letter noted that it would have been unlawful for the United States to have repatriated them directly to Libya, a provision that Congress had enacted to “prevent these individuals from being transferred to unstable countries where they could be assimilated into terrorist organizations, tortured, or killed.”
After their transfer, they immediately disappeared, apparently into the hands of a militia that controls the airport at Tripoli, and have not been heard from by their family or lawyers since. The senators criticized the government of Senegal for the deportation, which they portrayed as a violation of its international obligations. The letter also noted that the two men had been living peacefully in Dakar and one was engaged to a Senegalese woman, implying that greater diplomatic efforts by the United States might have persuaded the Senegalese government to let them stay. And it asked the State Department to work with Libyans to offer to resettle them in other countries or permit human rights groups visit them, although they also observed that “it is unclear whether they are still alive or in good health.”
A few weeks ago, the website of The American Conservative magazine published a lengthy article by its brief-tenured and outgoing editor, Robert W. Merry, carrying the sober and understated headline “The Nunes Memo and the Death of American Journalism.” Why was journalism dead? Because of me! More specifically, because when the famous memo prepared at the direction of House Intelligence Committee chairman Devin Nunes was released, I annotated it in a way that Merry did not like and saw as exemplifying a broader abandonment of good old fashioned journalistic values.
Merry’s critique inadvertently displayed cluelessness about several matters, such as when he couldn’t understand the relevance (“out of the blue”) of flagging the memo’s tarring of Rod Rosenstein and its implications for the Mueller investigation, suggesting that Merry was completely unaware of the campaign then overtly underway to use the rollout of the memo to set Trump up to fire Rosenstein.
But Merry’s primary complaint was about annotations that flagged specific factual claims in the Nunes Memo that Democrats and law enforcement officials who had read the same underlying FISA materials contested as inaccurate or misleading. (Recall the context that Republicans had refused to put out the official Democratic rebuttal memo at the same time they made the Nunes Memo public.) Merry maintained that telling readers that certain parts were disputed was inappropriate, or as he put it, amounted to “ostentatiously answering serious allegations with counter-speculation by way of spreading confusion and thus undermining the allegations.”
His rationale was foggy. In some places, he seemed to recognize that I was reporting out a dispute that had two sides — drawing on confidential conversations with sources and citing a detailed statement issued that same day by Adam Schiff — but he maintained that what a real journalist would have done was just present the Nunes Memo’s allegations to readers as uncontested fact, like Kimberly Strassel of the Wall Street Journal opinion pages. (No, really!) In other places, he seemed not to recognize where the critique was coming from, bizarrely accusing me of merely speculating by myself, without any evidence, that certain claims in the Nunes Memo might be contestable.
Anyway, this was self-evidently a bad take from top to bottom, so I basically ignored it other than snarking on Twitter about one particularly dumb part.
🙄THE OUTSIDE SCOOP Feb 5: Nunes/Gowdy admit FISA application DID tell court that Steele research was politically motivated contrary to impression created by their memo Feb 6: @robertwmerry in @amconmag declares flagging that key memo line as disputed was the death of journalism pic.twitter.com/MiZ1L15Mdt
Hey @amconmag tell Robert Merry we anxiously await his further wisdom about how flagging reasons to be cautious about Nunes Memo's claims constituted "death of journalism" & why Kim Strassel's readers were better informed via her credulous stenography https://t.co/1g6s2jgcp4pic.twitter.com/WxFiUcZbqI
That unleashed a second confused screed. Neither of them appear to have had any impact — not even Russian bots are retweeting them, which is quite an accomplishment for pro-Nunes Memo pieces — but still, since these things live on forever in Google search, here is my brief rebuttal to it:
Charlie Savage of NYT thinks he's been vindicated by the Democratic rebuttal to the Nunes memo. He hasn't. Bob Merry lays it down: https://t.co/jW6P3Fpptb
1/ No, @amconmag, tell Merry the point is that his original piece, putting forward the risible thesis that it was bad journalism to flag which factual claims in the Nunes Memo were contested by Dems/law enforcement officials familiar with the underlying FISA materials,
2/ justified that bad take by accusing me of speculating without evidence that various specific parts might be problematic. In fact, as was obvious to everyone but him at the time but as the belated unveiling of the 2nd memo underscores, I was accurately reporting out the dispute
3/ so readers were informed when it mattered, not weeks later when the news cycle had already moved on to guns. To the extent that he is backing away from his initial description of what would "seriously discredit" the Nunes Memo and maintains that "questions remain,"
4/ that’s why I'm petitioning the court to unseal the underlying materials, contra the particularly dumb attached point. In sum, he put forward a bad take on journalism while displaying confusion about the specific facts, which should, but probably won't, make him re-evaluate. pic.twitter.com/EWk5CtAZba
A bipartisan group of 10 senators today sent a letter to Senate Majority Leader Mitch McConnell today urging him not to try to attach an extension of the expiring warrantless surveillance program law, Section 702 of the FISA Amendments Act, to some other must-pass bill and trying to jam it through without debate. If there is no time for a debate now, they “ask that reauthorization be limited to a matter of months to allow time for proper debate on the issue in the early part of 2018.”
Separately, two days ago, 34 House members wrote a letter to House Speaker Paul Ryan to “demand” that 702 reauthorization be debated as a stand-alone bill rather than attached to the continuing resolution that Congress will have to take up before the end of the month to keep the government from shutting down.
“The House exists to debate the very sorts of issues raised by the FISA Amendments Act, and we insist on the opportunity to do so,” they wrote.
Tick tock. But! Important reminder: Notwithstanding the implication some rhetoric about the imminent sunset, the Trump administration believes collection can lawfully continue under the program through April, when the current court orders expire, even if Congress does let Section 702 lapse on December 31. It is therefore not preparing to shut down the program on New Year’s Day no matter what happens.
When President Trump signed the fiscal year 2018 iteration of the annual National Defense Authorization Act this week, he appended a signing statement challenging several dozen of its provisions. Obviously he didn’t write the signing statement himself, but his legal team – spanning the Office of Legal Counsel, the Office of the White House Counsel, and possibly OMB – ghostwrote it. It singles out 42 provisions as raising unconstitutional intrusions into the Trump administration’s understanding of executive power, while challenging another on policy grounds.
Among them, while Trump declares again that he fully intends to keep the Guantanamo Bay prison open and use it, he reiterates “the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees would violate constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief.”
Here is the statement:
The White House
Office of the Press Secretary
For Immediate Release
December 12, 2017
Statement by President Donald J. Trump on H.R. 2810
Today, I have signed into law H.R. 2810, the “National Defense Authorization Act for Fiscal Year 2018.” This Act authorizes fiscal year 2018 appropriations for critical Department of Defense (DOD) national security programs, provides vital benefits for military personnel and their families, and includes authorities to facilitate ongoing military operations around the globe. I am very appreciative that the Congress has passed this bill to provide the DOD with the resources it needs to support our Armed Forces and keep America safe. I note, however, that the bill includes several provisions that raise constitutional concerns.
Several provisions of the bill, including sections 1046, 1664, 1680, and 1682, purport to restrict the President’s authority to control the personnel and materiel the President believes is necessary or advisable for the successful conduct of military missions. Additionally, section 1601 provides that the Commander of Air Force Space Command, a military officer subordinate to the civilian leadership of the President as the Commander in Chief, the Secretary of Defense, and the Secretary of the Air Force, has “sole authority” over certain matters. While I share the objectives of the Congress with respect to maintaining the strength and security of the United States, my Administration will treat these provisions consistent with the President’s authority as Commander in Chief.
Certain other provisions of the bill, including sections 350, 1011, 1041, 1202, and 1227, purport to require that the Congress receive advance notice before the President directs certain military actions. I reiterate the longstanding understanding of the executive branch that these types of provisions encompass only military actions for which such advance notice is feasible and consistent with the President’s constitutional authority and duty as Commander in Chief to protect the national security of the United States.
Sections 1033 and 1035 restrict transfers of detainees held at the United States Naval Station, Guantanamo Bay. I fully intend to keep open that detention facility and to use it for detention operations. Consistent with the statement I issued in signing H.R. 244, I reiterate the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees would violate constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief. Additionally, section 1035 could, in some circumstances, interfere with the ability of the United States to transfer a detainee who has been granted a writ of habeas corpus.
I also strongly object to section 1633, which threatens to undermine the effective operation of the Executive Office of the President by making full funding for the White House Communications Agency (WHCA) contingent upon the submission of a report on a national policy for cyberspace, cybersecurity, and cyberwarfare. I take cyber‑related issues very seriously, as demonstrated by Executive Order 13800, which has initiated strategic actions across executive departments and agencies that will improve the Nation’s cyber-related capabilities. Among other things, WHCA plays a critical role in providing secure communications to the President and his staff. The Congress should not hold hostage the President’s ability to communicate in furtherance of the Nation’s security and foreign policy. I look forward to working with the Congress to address, as quickly as possible, this unprecedented and dangerous funding restriction.
Several provisions of the bill, including sections 1069, 1231, 1232, 1239, 1239A, 1258, 1259, 1263, 1271, 1279A, and 1607, could potentially dictate the position of the United States in external military and foreign affairs and, in certain instances, direct the conduct of international diplomacy. My Administration will treat these provisions consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs to determine the terms on which recognition is given to foreign sovereigns and conduct the Nation’s diplomacy.
Section 1244(b) purports to limit certain expenditures unless, under section 1244(c), the President submits to the Congress a plan to impose sanctions — including asset blocking, exclusion from the United States, and procurement bans — on certain persons for failing to comply with the Intermediate-Range Nuclear Forces (INF) Treaty. My Administration will apply these provisions consistent with the President’s constitutional authority to conduct foreign relations, including the President’s authority under Article II, section 3 of the Constitution to “receive Ambassadors and other public Ministers.” Section 1245 purports to direct the United States Government to consider the RS-26 ballistic missile to be a breach of the INF Treaty “for purposes of all policies and decisions,” if the President, with the concurrence of certain other executive branch officials, were to make certain legal and factual determinations. My Administration will apply this provision consistent with the President’s constitutional authority to identify breaches of international agreements by counterparties.
Section 910 purports to elevate the current Deputy Chief Management Officer of the DOD to the position of Chief Management Officer, which would result in an expansion of duties, along with an increase in both responsibility and pay. While my Administration supports the policy of section 910, the provision raises constitutional concerns related to the President’s appointment authority. My Administration will devise a plan to treat this provision in a manner that mitigates the constitutional concerns, while adhering closely to the intent of the Congress.
Section 1097 purports to reauthorize the Office of Special Counsel, including by continuing the existing tenure protections for the Special Counsel. The Special Counsel is a principal officer of the United States who performs executive functions, and has both broad authority and long tenure insulated from the President’s removal authority. I reiterate the longstanding position of the executive branch that such insulation of a principal officer like the Special Counsel raises serious constitutional concerns.
Section 1653 purports to require the Nuclear Weapons Council to make an assessment and provide a report to the congressional defense committees in response to legislative activity by a single house of Congress. To direct the Council’s operations in this manner, the Congress must act in accord with the requirements of bicameralism and presentment prescribed in Article I, section 7 of the Constitution. Accordingly, my Administration will treat section 1653 as non-binding, and I will instruct the Council to take action in response to this provision only as an exercise of inter-branch comity — i.e., only insofar as such action would be practicable and consistent with the Council’s existing legal responsibilities.
Several provisions of the bill, including sections 737, 1097, 1244, 1631, 1632, and 1669, as well as language in the classified annex to the joint explanatory statement of the committee of conference, purport to mandate or regulate the submission to the Congress of information — such as deliberative process and national security information — protected by executive privilege. My Administration will treat these provisions consistent with the President’s constitutional authority to withhold information, the disclosure of which could impair foreign relations, national security, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties. Additionally, I note that conditions in the classified annex to the joint explanatory statement of the committee of conference are not part of the text of the bill and do not carry the force of law.
Several provisions of the bill, including sections 513, 572, 807, 1648, 1676, 1696, 2878, and 3117, purport to require executive branch officials under the President’s supervision to recommend certain legislative measures to the Congress. My Administration will treat those provisions consistent with Article II, section 3 of the Constitution, which provides the President the discretion to recommend to the Congress only “such Measures as he shall judge necessary and expedient.”