Caesar in the Wings?

Caesar in the Wings?

On May 20, 2008, Michael Traynor rose to address the annual dinner of the American Law Institute at the Mayflower Hotel in Washington. Traynor, perhaps best known as the son of the estimable former Chief Judge of the California Supreme Court, had just completed an 8-year stint as president of the ALI. That organization is best known to practicing lawyers as the source of the Restatements which summarize the state of the law in a wide variety of areas, and as a force behind the various Uniform Acts proposed by the National Council of Commissioners on Uniform State Laws. It is an elite organization, filled with judges and legal scholars, and the essence of its mission is to discover and articulate the essence of American Law – and to help shape its future development. It is arguable that the ALI is as influential in the development of American law as the Supreme Court. The passing of the leadership of the ALI was therefore a notable occasion, and Traynor intended to make the most of it.

Traynor focused on two subjects: the ending of racial and other forms of invidious discrimination, and “the challenge that terrorism presents to both liberty and security.” It was his comments on the latter subject that raised eyebrows. He began by reciting in fairly compact form a litany of the kinds of abuses that have come about in recent years, including torture and governmental secrecy, and ending with “the assaults by your government on constitutional rights, the Separation of Power, and the Geneva Conventions.”

Reverting to torture and the degradation of captives, he observed that “this outrageous behavior did not ‘trickle up’ from unauthorized conduct by a few privates, corporals, and sergeants but instead was authorized, defended, and encouraged at the highest levels of our government…” He mentioned as well signing statements in which the President claims the right to ignore statutory mandates, indefinite detention and resistance to habeas corpus, illegal surveillance, and the sending of ill-equipped troops into the field, and the failure to give them “caring, competent, and sustained medical attention” when they were wounded.

Traynor also observed that during this debacle “Congress and the American public were uninformed, fearful, and unengaged, and they let themselves be deceived.” He also singled out the media for “[falling] down on the job.” Finally, he deplored the dishonesty and secrecy with which these abuses were carried out.

Traynor’s direct speech met with some disapproval, but it probably articulated the verdict of the majority of the American legal community on presidential absolutism in a time of terrorism and war.

Traynor’s proposed solution, “an engaged citizenry,” sounds good, but it is probably nowhere near good enough. As explored in a series of 25 pieces I wrote in these pages in the past few years, we have reached a situation where, in matters of war, peace, and national security, there are few realistic means of stopping a president who is intent on doing things his or her own way. There are checks and balances available – the courts and Congress, independent Executive agencies or parts of agencies (like the Department of Justice). If the president suffers these branches of government to check him or her, then the president will stand checked. But the present administration has given us an 8-year tutorial on the invincibility of a determined presidency. Institutions that should serve as checks and balances will generally be too little and address the issues too late.

We have become like Rome at the moment before the Emperors destroyed the Republic. At that point, one could see the Roman emperors crowding out the Senate, the tribunate, the consuls and proconsuls, the magistracy, and the committees, by measures like obtaining the power of appointment over these positions, or asserting veto power over their acts, or by simply assuming their titles. This ended their roles as separate powers within the republican government, subordinating everything to the emperor in his role of “dictator.”

“Dictator” was initially the formal title for an office tailored to cope with military emergencies. Dictators held plenary state powers, but – as a necessary check on their power – only for six months. There were hundreds of years of precedent of dictators laying down their plenary powers at or before the end of their term. But Julius Caesar wanted to be dictator in perpetuo, a title he caused to be inscribed on his coins in 44 B.C. , not coincidentally also the year of his assassination. Largely through seizing the power of appointment over all the other offices, he had assured that the title of dictator for life was accurate. Even though his own life was too short for him to use his concentrated powers long, he had found a route to dictatorship for life through a Roman constitutional maze designed to prevent it. This path he had crafted became a template for emperors to obtain the same kind of centralization of power enjoyed by the despised Roman kings who had been overthrown half a millennium earlier.

If Caesar had chosen not to embrace that kind of concentration of power, if he had recognized that checks and balances were vital to his nation’s health, odds are he personally would have remained healthy throughout 44 B.C., and a terrible turn in Roman constitutional culture might have been avoided into the bargain.

Our next president will be exposed to similar choices. Through the powers his predecessors have amassed, far in excess of what the Founders contemplated, and through the gathering of nearly a critical mass of Supreme Court justices willing to tolerate the kinds of misbehavior deplored by Traynor, the next president could seal the deal, and turn us into something like a dictatorship.

Or the next president could embrace the Founders’ notion of a multifaceted government, and allow the other branches and the independent parts of the Executive to resume their rightful roles.

It is hard to know what to expect.

John McCain, a former POW and torture victim, could be expected not to create new Abu Ghraibs and Guantanamos. But his public remarks suggest that he has a seriously deficient sense of checks and balances. On May 6 he gave a speech in which he hailed the constitutional balance of powers and said that the only thing wrong with the way it has been working in recent years has been the interference of activist judges with the Executive. As Glen Greenwald quickly pointed out in Salon, these were also the talking points of a November 2007 address by George Bush to the Federalist Society. Enough said.

Barack Obama certainly has the training and the intellect to appreciate the issues. He commented in March 2007 that: “I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.” He made that remark while criticizing the firing of eight U.S. Attorneys, among the problems decried by Traynor. In October 2007 he said this: “We’ve paid a heavy price for having a president whose priority is expanding his own power. The Constitution is treated like a nuisance. . . . We get secret task forces, secret budgeting, slanted intelligence and the shameful smearing of people who speak out against the president’s policies.” So far, so good.

David Nather, a staffer at Congressional Quarterly, has probed Obama’s statements and record further, however, and he brings back some good news and some bad. “His campaign’s decision not to respond to a list of questions on specific subjects, such as war powers and signing statements, ensures that his views can remain vague.” Instead, we get glimpses. For instance, Obama said in December that he would call on his attorney general to review all Bush administration executive orders and review their constitutionality. He promised to close Guantanamo and adhere to the Geneva Conventions in detainee interrogations. He also has claimed a plan to consult with congressional leaders monthly about national security matters, and to keep them advised of pending military actions.

But Obama reportedly believes that the branches should work together; his imagination does not necessarily extend to their functioning divergently and as checks on each other. And known legal advisors of Obama’s, Laurence Tribe and Cass Sunstein (respectively), do not share Roger Traynor’s dismay at signing statements or military tribunals. Consequently, we do not yet have a clear picture of what would happen next if a President Obama were to tell congressional leaders he planned to bomb or invade some country or set up a new domestic spy program, and they were to express opposition. The sequel would be the truest and most vital test of whether Obama is inclined, like Caesar, to cross the constitutional Rubicon. And it matters, because if he wants to (and if he is elected), he probably can.

We citizens can only stay tuned. But it is high time to worry.

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