Just a month ago, with the nation’s focus on the fleeing Edward Snowden, an under-the-radar Congress blocked an amendment to the National Defense Authorization Act. The quiet amendment would have made it impossible for the President to lock up American citizens without a trial, a right the executive branch has grabbed in recent years. In fact, the NDAA is only one instance of a festering government problem since Iraq—the dramatic, Congress-sanctioned, expansion of executive power.
Snowden, with his leaks to Glenn Greenwald of The Guardian, was part of the newspaper’s big early-summer investigation into the NSA’s surveillance program on average Americans that involved seizing millions of phone records from Verizon and spying without warrants. With Snowden doing a Carmen Sandiego-esque trot around the world—he’s currently been granted asylum in Russia—the focus has shifted from the issues he championed to the face of the movement. In the furor, one thing has been swept under the rug: what the NSA did wasn’t illegal.
Following the September 11 attacks, al Qaeda became a household name and the face for terrorism abroad. President George W. Bush quickly declared a “war on terror,” a convenient semantic twist allowing him to claim the executive powers of a president in wartime. On September 15, a Bush administration memorandum said—blatantly incorrectly—that “no statute passed by Congress ‘can place any limits on the president’s determinations as to any terrorist threat…or the method, timing, and nature of the response.’” His administration quickly claimed that presidents have every right to violate laws of Congress—with, among other offenses, warrantless wiretapping—to justify the war on terror, a mockery of our Founding Fathers’ separation of powers principles.
In wartime, presidents today have more freedom than ever to grab unilateral power for both the government and themselves. Bush, like predecessors FDR and Abraham Lincoln, appealed to a national jingoistic spirit, using the ‘war on terror’ label to appeal to America’s patriotism. In the heat of national fear, the government pushed the Patriot Act through Congress before each member had time to read it. Not long after came an expansion of the wiretapping program and in the following months, there was much less judicial and congressional review of the programs sanctioned by the Patriot Act.
Barack Obama was supposed to end it. The former Illinois senator said before taking office that “warrantless surveillance of American citizens … is unlawful and unconstitutional,” but his administration has presided over the passing of the NDAA—fulfilling a Bush administration claim that US citizens denounced as terrorists should be denied even the most basic legal protections—and a doubling of the wiretapping programs started under Bush.
Even ignoring the issues of drones and Guantanomo Bay it is shocking to see the lack of accountability presidents face on this issue. But in the context of the Obama administration’s scary precedent of unilaterally taking the life of an American and the recently passed NDAA that includes half a billion dollars to permanently keep open the prison it is unjustifiable. In debates, Mitt Romney largely ignored these issues when given a national stage to criticize Obama. Even in the wake of the NSA findings, Obama’s approval rating is essentially unchanged since before the crisis. His own party, which enacted a filibuster of the Patriot Act in 2005 that Bush called ‘inexcusable’, has been silent on the issue.
For large portions of the decade since Iraq, Congress has been complicit in this seizure of power by the executive branch. When senators Rand Paul (R-KY) and Ron Wyden (D-OR) proposed amendments at the end of 2012 to make the NSA accountable, a bipartisan majority stopped it. When questions came up about how the NSA conducts surveillance, which involved capturing Internet communications “directly from the servers of nine leading American companies,” a congressman said the program would have stopped 9/11. Much of what the Obama and Bush administrations have done has been sanctioned, not condemned, by the legislative branch.
It’s worth noting that neither administration has committed as egregious power grabs as previous presidents. From John Adams’ Alien and Sedition Acts—allowing him to lock up opposing politicians whose views he did not tolerate—to FDR’s Japanese-American internment camps, the executive branch doesn’t have a spotless record on liberty. However, a comparative excuse is no excuse at all. The “war on terror” has cloaked a dramatic power grab by America’s executive branch that has gone largely uncontested in Congress. Appeals to patriotism have led to legislation designed to protect the average American from attacks abroad but have removed their safeguards at home. Edward Snowden flees, but even as the media tracks his every move, the government treats him like the pawn he is. And, as a series of recent articles released by The Guardian bring to light, the executive branch and NSA—backed by a Congress-approved Foreign Intelligence Surveillance Act—are undeterred and unaccountable.
David P. Freed ’16 is a Crimson sports and editorial writer in Mather House. Follow him on Twitter at @CrimsonDPFreed.
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