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From the President (Diane Hastert)
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Units (Marian Wilkins)
Revenue Sharing
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League Pulse
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Radio - Television
Report from the Hill
Some Thoughts on the Presidency - After Watergate (Stuart Gerry Brown)
Mahalo
International Relations - Trade Page (Melvia Kawashima)
Trade Lobbying - Action (Barbara Wiebanga)
Things Japanese... Things Hawaiian... (Barbara Wiebanga)
UN Day
Voters Service Note

Some Thoughts on the Presidency - After Watergate

Every commentator--and many a citizen--has sounded off, pontificated, and speculated on the meaning of Watergate now and for the future. But it is worth noting that few of the established scholars or public men who specialize on the presidential system have done more than remark on some particular event or offer a casual opinion on the proceedings. The reason is this: despite the commonly expressed popular wisdom that Watergate is really old stuff, that both parties do it all the time--only the Watergate burglars had the bad luck to be caught--despite this widely accepted attitude, students of the presidency know that it is not so.

Polls show that sixty-nine percent of the people believe that the Nixon campaigners "were no worse than the Democrats, except they got caught at it." The New Yorker commented editorially on this remarkable finding:

Since it is not recorded that any political party or any Administration in the United States has previously been guilty of anything even approaching the serious crimes and immoral conduct that have been documented in the Watergate case, the majority's conclusion is without historical support. To draw that conclusion without a scrap of evidence to back it up, and with all available evidence opposed to it, suggests that those who feel this way want to believe that our political system is corrupt.

The writer goes on to note the curious fact that as the revelations of Watergate piled up during the Ervin hearings the percentage of those who believe that both political parties and various past Presidents are equally guilty rose. Now the fact is that there is no precedent whatever for the series of related events collectively known as Watergate, nor for the attitude of the White House, staff or of the President regarding it. Since there are no precedents there are no easy answers to the questions of what to do about it for the future, or what implications are to be found in it. In short, it is a complex and a momentous matter.

What I have to say must be preliminary and tentative. I possess no sure answers, nor am I gifted with the instant sophistication so lavishly spread among the multitude of instant experts. I shall say nothing about the guilt or innocence, of the actors on the Watergate stage nor shall I hazard any speculation about the future political careers. of either the President or the Vice President. What I shall do is to discuss for a few minutes the problem of presidential power, its uses and abuses, seeking to see the Watergate attitude in perspective.

The most extreme views of presidential power and authority have been held by the politicians and constitutionalists of the mid-nineteenth century and those of the present. With the exception of Lincoln, a wartime president, most people, a hundred years ago, held pretty much to what Theodore Roosevelt called the "Buchanan principle." That is, a President should never do anything at all unless it is required by law or by the Constitution. On this principle initiative is left almost entirely to Congress. On occasion a president, like Grant, might take foreign policy initiative, but he was likely to have rough going in the Congress. Grant tried to annex San Domingo and succeeded in achieving a treaty, only to have it rejected by the Senate. The reduction ad absurdum of the Buchanan principle, at least from our point of view today, occurred when Grant told Congress, in his final State of the Union message, "whatever amount congress may deem proper for these purposes (public works) will be expended" The President had no recommendation at all!

At the opposite extreme is the view which grew out of the crises of the Great Depression, the Second World War, and the wars cold and hot which have followed. Here is the way Paul Appleby, an eminent New Dealer and distinguished philosopher of public administration, put it: "The government, that is the executive, always has the power to do what it has to do." That view was once tested in the courts and failed to stand up. In 1952, during the Korean War, President Truman found that a prolonged strike in the steel industry was impeding the war effort. As Commander-in-Chief he issued an executive order empowering the Secretary of Commerce to seize and operate the steel mills until such time as the strike was settled. The steel industry immediately complied and the mills were re-opened. But at the same time the industry went to court to ask for an injunction on the ground that the executive had exceeded its powers. The court so ordered, and on review the Supreme Court told the President he had no basis in law or the Constitution for his action. Indeed, the Court, in a 6-3 decision, flatly told the President he should go to Congress for authority. Two of President Truman's appointees to the Court voted with the majority. Truman promptly acceded to the court's order and returned the mills to their owners. In short, the President accepted a theory of limitation upon presidential power even on a matter of national security in time of war.

In this notion, overturned by the Supremee Court of twenty-odd years ago, that the President has inherent powers which do not need to be spelled out in law or the Constitution, you will no doubt recognize what we now call the Ehrlichman doctrine. This is the view, expressed several times in the Watergate hearings, that the President has unlimited powers to protect what he deems to be the national security. Among other things, he may break the law or violate the Fourth Amendment to the Constitution, which is our protection against search and seizure, without a warrant. Under the Ehrlichman doctrine the President has final and absolute authority to determine what the needs of national security may be in any given circumstance. This doctrine was offered in explanation of the famous break-in to the office of Mr. Ellsberg's psychiatrist. Under questioning as to where a line might be drawn beyond which the President could not go, for example did his power extend to murder, Mr. Ehrlichman's response was, "I do not know where the line is, Senator."

We do not know what other criminal actions may have been committed under the same doctrine in recent years, nor who ordered them, But there is sufficient evidence that there have been a good many. One of the poignant aspects of the Watergate burglary itself is that some if not all of the participants believed that they were acting as patriots to carry out the will of the President in a matter of national security. Watergate, in this respect, is a kind of tragic climax of a trend that began long before the Nixon Administration took it up and accelerated it. It is certainly not the only element in the Watergate complex which involved unprecedented, unethical, even criminal actions, but I shall limit the discussion here to the national security claim.

Obsession with national security is a phenomenon of the generation after World War II. I think it can be traced almost to that moment when Marshal Stalin, in 1946, told the Supreme Soviet that the Communists of the world could not collaborate in peacetime with the capitalist countries of the West, that the business of the Communists was building socialism, not accommodation and reform. Presently the Cominform was established to coordinate the programs of the Communist parties. As agreements to hold free elections were torn up, Soviet rule was consolidated over Eastern Europe. In the United States the Communist leader, Earl Browder, an exponent of collaboration, was dismissed by means of an article criticizing, him in the French Communist press, displaying at once the power and the deviousness of Stalin. Then came the first Berlin crisis, the airlift, and the long train of events we call the Cold War.

At the same time defectors in the United States, Britain, and Canada were turning over to the Soviet Union secrets about nuclear weapons construction. Finally, Mao tse-Tung was leading the Communists in China to a decisive victory over a government that had been a close traditional friend of the United States and had benefitted from the most sustained and successful propaganda line any foreign country has ever conducted in the United States. American concern, even alarm, was surely justified.

The response of the American government under President Truman was to separate national security matters from the regular and formal conduct of foreign policy. The National Security Act of 1947 created the National Security Council in the White House, with the President as Chairman and the Secretaries of State and Defense as Cabinet members, along with the Vice President and others appointed by the President. The staff chief of the NSC was the Presidential Assistant for National Security. To the Council was attached a new intelligence agency, the CIA, chartered to gather facts anywhere in the world which might be relevant to the security of the United States and authorized by the President to carry on a variety of clandestine activities for the same purpose.

Intelligence became a sort of fetish. Agencies proliferated. To the older intelligence agencies in the army and the navy were added the Defense Intelligence Agency and new offices in the FBI. Finally, Congress established the National Security Agency in a law unique in American History--the law does not specify what the agency is for!

Dedication to preserving the nation from Communist subversion at times seemed more important than protecting it from attack. The aberration of the McCarthy era was a kind reflex of the national security muscle--because there were a few who preferred the Soviet Union to their own country (often for money), everyone who saw merit in the Soviet system and/or criticized the United States fell under suspicion. McCarthyism dissipated like a heavy clou4 in the wind when public opinion was satiated, and the leaders of Congress and the political parties united against it. But overseas there was a different story.

As the Cold War spread, sometimes becoming hot as in Korea and Indo-China, the National Security Council developed an institutional structure with staffs of experts, researchers, and advisers fed by the "Intelligence community" and working closely with the military but less, and less so with the State Department and the Congress. The theory of official secrecy is that the fewer the people who know, the greater the security. Thus even the budget of the CIA was hidden in other appropriations. To maintain a show of cooperation, a few members of Congress were kept informed. But the controlling attitude was that Congress was too large a body to be trusted to keep secrets, it followed that it should not be consulted in making policy, except in the most general way. And so the executive became more and more exclusive, the President himself more and more powerful and less and less accountable. The people, of course, were almost entirely cut off from the source of the power they had presumably sanctioned.

Once the President acts in national security matters, there is little choice for the Congress. They must appropriate the money, and members who oppose may seem unpatriotic or at least obstructionist. Thus, the CIA engineered the overthrow of a government in Guatemala, organized a tribal army in Laos, attempted to overthrow Castro in Cuba, etc. At the same time counter-insurgency forces were organized in the military and dispatched to remote areas, such as Laos and Vietnam, while diplomatic efforts were going forward to settle disputes in traditional ways. The logical consequence was the undeclared war in Vietnam, with its fearful toll of death and destruction over more than ten years. All these and more were done in the name of the President's power to secure the nation, and with Congressional sanction after the fact by budget appropriations.

It was not only the Congress. which suffered frustration because of the national security mania. In the executive the consequences were equally unanticipated and sometimes appalling.

The President and his White House staff so jealously guarded their making and carrying out of policy that only some in the military hierarchy might know of military orders, as in the case of the first stage bombings of Cambodia. A matter so vital to the conduct of foreign policy as the deploying of the ABM was decided without consultation with the Secretary of State, who learned of it in the newspaper. The Ambassador to the United Nations unwittingly lied to the Security Council and showed fraudulent photographs because his segment of the State Department had not been informed of the Bay of Pigs involvement. And the chief of mission negotiating arms limitation with the Soviet Union was not informed that the White House had already agreed to a "back-up" position and so endeavored hopelessly to bargain for what had already been surrendered--a fact well known to his opposite number on the Russian side of the table.

In the latter case the actual negotiation was conducted by the National Security Assistant, Dr. Kissinger, with the Russian ambassador in Washington, while SALT went on as a kind of showpiece in Geneva. The appointment of Kissinger to be Secretary Of State while continuing as National Security Assistant assures that such a thing will not happen in another SALT round--and the citizen can sigh "better late than never." But whether the effect of the Kissinger appointment will be to restore responsibility for foreign policy to the Department of State or simply to annex the Department to the White House is by no means clear--and may never be. The point here, of course is that the Secretary of State has statutory responsibility to the Congress while the National Security Assistant does not.

What has happened, in effect, is that constitutional government has become presidential government through a process nobody really intended. he frustration of Congress has been enhanced because there has not been a clear or even desirable alternative to presidential action when national security is invoked. The impotence of Congress has been overmatched by the excessive display of power and arrogance by the White House. Officials working for the President have been openly contemptuous equally of other agencies in the executive. Thus Watergate testimony reveals lack of confidence in the FBI as justification for the establishment of a secret police force in the White House itself. Ultimately, political advantage and national security become hopelessly confused when agents investigate the private lives of senators and tap the telephones of the opposing party. And an attorney general of the United States places the President's reelection above all other values in the affairs of the republic.

The moral of the tale, at least of this part of the tale, would appear to be that accountability must somehow be restored. Dr, Kissinger's statements to the press on this subject are reassuring and welcome, No one expects private conversations on public policy between the President and any of his advisers to be made public. But consultations must be broadened to reduce the temptations to that arrogant self-assurance which seems to me to be the most frightening aspect of the Watergate revelations. It is not only the President who should decide what the national security is. The Congress must play a full and appropriate role, and so must the statutory departments.

Perhaps the word stature is a key. When the White House Office was established in 1939, President Roosevelt asked only for six nearly anonymous assistants to help him do the work required by law. That such assistants should be accountable only to the President seemed reasonable enough, But more than a generation and at least three wars later, there are not six but hundreds of White House staff people, in some of them immense power is vested, not by law but by the President and by inertia. To re-establish the White House staff by statute as a accountable agency would be an immensely difficult job of legislative drafting. It would demand extraordinary political skill. But it would not be impossible. And by introducing some substantial measure of accountability to the Congress at least some of the dangers of excess in the exercise of presidential power would be reduced if not eliminated.

Accountability ought also to be achieved in another way--ultimately an even more important way. The Congress, the political parties, and presidents and presidential candidates must draw a distinction between powers a President holds simply because he is President, which we know are subject to almost endless abuse... and powers a President holds because he has been elected with a positive mandate to conduct certain policies and establish (or abolish) certain programs, powers far less likely to be abused. Too often presidential candidates avoid taking well defined positions or offering positive programs because they wish, in the current horrendous jargon, "to keep their options open," or, as they often say, because they do not wish to be stuck with a program or policy that turns out later to be inappropriate. In such campaigns the voters have little to choose between other than the personalities of the candidates--and elusive prejudices. The Nixon campaign of 1972 is a classic instance. The President has repeatedly claimed a mandate because he received so great an electoral majority. On this claim he proceeded to attempt to dismantle long-standing domestic programs and agencies without a shadow of legal authority to do so. In case after case the courts have held that his actions are unconstitutional. Yet he dared not go to Congress to ask for enabling legislation because the measures he wished to take were directly contrary to the expressed will of the Congress. And the Congress had been re-elected by a majority similar to his own. In short there was no mandate in the 1972 election results. Had there been such a mandate, there would have been a very different story to tell.

There are some useful precedents our presidential politics. Theodore Roosevelt, for example, went to the nation in 1904 with a clear and specific program. He had already stated flatly his view that a President has the power to do in the national interest whatever he is not forbidden to do by law or the Constitution. In his campaign he laid down his views as to what that public interest was. His resounding victory gave him a mandate to proceed-- and he did so. So did Wilson in 1912 and Franklin Roosevelt in 1936 and Lyndon Johnson--in domestic matters-1964. It was Johnson's decision to go against the clearly expressed will of the people on the Vietnam war which finally brought down his administration. He might have, learned from his master, FDR, that to claim a mandate when in fact an issue was not put to the voters can lead to humiliating political defeat. Johnson, should have remembered what happened to Roosevelt's plan to pack the Supreme Court when he claimed, contrary to fact, that his unprecedented sweep in the election of 1936 was all the justification he needed. All of us should start remembering now that we cannot hold presidents accountable if we do not demand to know what candidates stand for.

Perhaps revision of the election laws may be a way to move toward electoral accountability. But that subject is beyond the scope of this discussion.

Another popular cliche parroted by politicians and commentators is that Watergate is a blessing in disguise. It is not a blessing of any kind, disguised or exposed. It was and is a disaster of the first magnitude. But it is a comprehensible disaster, a disaster implicit in the drift of the presidency and of the public attitude toward it. And just because it was a disaster, people wish to forget it, and not to see it as, in one aspect, the most virulent symptom of a kind of disease which needs to be cured.

The polls show the President's rating going up again, and a majority of the people saying, "let's get on with the business of the government." Here lies the danger for the future. The President's popularity is not the subject that ought to be engaging our attention. Of course the public business must go on- but it has been going on all the while. The mail continues to be delivered; taxes are collected; roads are built; airplanes run; negotiations with other countries go forward . The business that is not yet going forward, is the business of securing greater accountability from the executive, from the White House, and from the President himself. This matter is not in the charge of the Watergate committee of the Senate. At present it is nobody's business, though it is everybody's business. It the end it must bethe citizens who make it their business. It is the citizens, above all, who have been smothered with the shibboleth of their security without being fairly consulted as to what their Security is. If the citizens do not require their servants of the Congress and the executive to account to them far more directly and specifically than they are now doing, there will be more Watergates. No doubt the immediate reaction in any case will be a mood of piety in both Congress and executive, but not for long unless we are insistent. And one cannot help wondering whether the next Watergate may not be irremediable.

Stuart Gerry Brown

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