Limiting Executive Branch Powers

i.)        War Powers Reform

Problem:         War is a serious business, and always a threat to democracy. People involved in a war often lose their basic rights of life, liberty, and property. War is not well defined in the Constitution, and therefore the limitations on war powers in the Constitution have been ineffective. The Constitution currently gives Congress the power to declare war. By failing to further define war, and making the president the commander in chief, the Constitution failed to prevent the president from committing US troops to wage “undeclared” war. The original idea of granting Congress the power to declare war was good, since no one person should be trusted with this decision.

Solution:         The Constitution should therefore be amended to include a definition of war, and prohibit the president from engaging in war-like activities without a formal declaration of war. The Constitution should outline different executive powers in conducting wars and in managing the peace.

The Congress should be constrained to particularly name the region and people in the declaration of war, as well as the reasons for and goals of the war. The Constitution should be clear that the Constitution may not be suspended in time of war, and that the Supreme Court and people have a duty to remove any government or portion of government that attempts to suspend the Constitution. Otherwise, the legitimacy of the agreement between the people and the government as defined by the Constitution is destroyed, when it is needed most, during time of war. If there are portions of the Constitution which are not possible to follow during war time, these must be spelled out in advance. Alternatively, the Constitution may be amended by the process spelled out in the Constitution. Otherwise, any attempt to suspend the Constitution should be considered treason, and a complete abdication of the legitimacy of the government.

The congress should be slow to go to war, and once entering into war, be empowered to finish it. A 2/3 supermajority should be required to declare war. Once a state of war is entered, either a majority or supermajority should be required to end it. In this fashion, after a war is begun with a 66% majority, even if support declines to 50%, the US can continue to fight.

ii.)       Due Process Reform

Problem:         The President should not have the authority to kill Americans with drones without due process of law. The president should not have any authority to take actions likely to cause the death of an identified American without legitimate due process. It is obvious that the law is out of kilter here. The Obama Administration has been ordered to disclose documents that have been used to justify the program. See e.g.

Obama ordered to divulge legal basis for killing Americans with drones

Court releases DOJ memo justifying drone strike on US citizen

and

The New York Times Company v. United States

The Executive Branch developed this legal opinion in secret, used it in secret to justify killing U.S. citizens without trial, little public awareness, and no substantial judicial oversight. It fought in court to keep the whole thing as secret as possible.

This is a difficult problem.

Solution:        The IParty should propose a general way to outlaw drone-type strikes, but not over generalize, and still allow FBI agents to perform their duties, and carry guns to enforce laws. The difficulty lies in defining when an American cannot reasonably be captured, yet remains an immanent threat to the lives of other Americans. Traditionally, a law enforcement officer may shoot and kill a criminal posing an immanent threat to other Americans. For example, when a robber is pointing a gun at a bank customer, a police officer is allowed to shoot the robber if it will protect the bank customer, and no lesser amount of force will suffice. When the American is over seas, and just suspected of spreading bad ideas or having bad plans, the situation is much more difficult. Are the bad plans to jaywalk? To vandalize police cars in Bagdad? To harass the police department in Bagdad, Iraq with empty bomb threats? To give money to an organization which helps the poor but earlier set off car bombs? To build roadside bombs intended for US troops? To buy a nuclear device? What if the citizen makes plans, and then changes their mind, having done nothing concrete? When can the president order a drone strike against an American citizen in a foreign country, walking down the street, unarmed, having not been convicted of any crime in any court? And what of the rights of non-citizens? When do they lose the right to life their Creator bestowed upon them? When do we play the role of policeman, prosecutor, judge, jury and executioner in a foreign country? What are the legal differences between Bin Laden, Saddam Hussein, Muammar Gaddafi, Bashar al-Assad, Fidel Castro, Mikhail Gorbachev and Vladimir Putin? Can Congress be trusted to control a president who goes off the rails?

The IParty should use a deliberative process to find solutions, and vote on the best ones.

iii.)      Information Gathering and Access Reform

Problem:         The vast amount of data available to governments in general, and the Executive Branch in particular, creates a potential for abuse that threatens the basis of democracy. Political opposition and reporting can be stifled by those in power if they abuse their access to the information the NSA and others are collecting.

Solution:         The president and his executive agents should not have any legal access to information not generally available to the general public regarding private matters of private citizens not suspected of committing a crime. In other words, if a private company keeps my records of my phone calls to other individuals, and does not publish them to the general public, they should not be available to the president (or any other part of the federal government).

Restrictions should be placed on the governments’ information gathering, collection, and aggregation to avoid suppression of dissent, criticism of the government, reporting of facts about the government, and political opposition. Only when the government suspects a crime, and obtains a warrant from an independent (Article III) judge should the president be allowed to collect and retrieve the communications, business documents, and other records of Americans.

iv.)      Attorney General Separated from Executive Branch

Problem:         When the president becomes corrupt and begins to break the law, she may have the power to fire the people investigating wrongdoing.

Solution:         The position of Attorney General should be separated from the executive branch and elected separately. An IParty president could do this voluntarily, setting an example for future presidents. A poll could be conducted, and the President could use the results of the poll to appoint the Attorney General. The process would make it much more politically difficult for the president to arbitrarily control or fire the attorney general.

In order to securely bind current and future presidents to an independent Attorney General, the Constitution must be amended.

The Justice Department could also be funded separately from the rest of the Executive Branch. A check could be placed on the Justice Department by explicitly allowing the Attorney General of any of the 50 states to bring charges against any Justice Department employee who breaks the law, but the charges could only be brought in a Federal Court. This reform falls under the category of “rule of law” and “nobody is above the law”.

v.)        Protection of Reporters of Unconstitutional Practices

Problem:         Executive Branch employees do not have adequate protection when they seek to protect the Constitution. The Federal Government has no authority to act in an unconstitutional manner. The Federal Government was created by, and owes its existence to the Constitution. Federal Employees should not be constrained to perform acts inconsistent with the Constitution, nor sit by silently when the Constitution is violated.

Federal employees or contractors cannot always be certain what is unconstitutional; they should only need good reason to believe the acts are unconstitutional. Edward Snowden, for example, believed he was disclosing unconstitutional acts of the Federal Government. A federal judge agreed that acts disclosed by Snowden were unconstitutional. Even if other judges disagree, Snowden should be forgiven for believing the acts were unconstitutional, because even an experienced trained federal judge believed they were unconstitutional. No one can credibly argue that Snowden was clearly wrong without also arguing the federal judge whose job it is to know such things was also clearly wrong.

Solution:        Provide explicitly in the Constitution that executive branch employees who refuse to participate in unconstitutional acts, and who disclose to the public unconstitutional acts of others in the government, cannot be prosecuted under any law. In this way, the government practice of marking almost everything “classified” or “confidential” could not be used to hide unconstitutional government practices. A standard process and procedure which protects a federal employee should be developed so that a reasonable employee with legitimate concerns can disclose information responsibly. Only complete unanimity among federal justices who examine a case of faulty whistleblowing should allow the prosecution to go forward.

Leave a Reply

Your email address will not be published. Required fields are marked *