"Unchecked and Unbalanced" by Schwarz and Huq

Reading in retirement permits the luxury of a more detailed investigation of common knowledge. Common knowledge is not universally accepted knowledge. It may not even represent a plurality. But, “common” in this context represents readily available information that is documented by individuals enjoying a reputation of high regard.

The common knowledge referred to in this context includes the following:
a) misrepresentation of facts (if not lies) by high level officials of the US government, including the President
b) concealing information vital to the duties of congressional oversight committees (albeit, some complicity in the failure of the congressional committees to exercise its powers to pursue information)
c) policies and practices that are illegal and counterproductive, e.g., extraordinary rendition, use of torture, illegal gathering of information through warrantless wiretapping.

The authors of “Unchecked and Unbalanced” have credentials to investigate the issues of an administration that wants to operate without constitutional checks and balances. Frederick Schwartz is Senior Counsel at the Brennan Center for Justice at NYU School of Law and was at one time, Chief Counsel for the Church Committee. Aziz Huq directs the Liberty and National Security Project at the Brennan Center and a former clerk on the U.S. Supreme Court.

The authors trace the history of other presidents who walk over the lines that the exercise of power, even in the name of national security. In most detail, they review the Church Committee (Cold War background dating back to President Roosevelt, abuses by the Executive Office in the name of national security) and the series of recommendations which were, in fact, resisted by both the executive and legislative branches (it seems that Congress is afraid to exercise its Constitutional powers). Within a generation, the Iran-Contra scandal resulted in another committee issuing similar recommendations to the Church Committee. The most ominous aspect of this committee’s conclusions was the minority report that disagreed with congressional limits on the executive branch. One of the congressmen supporting the minority report was Richard Cheney. It does appear that his interpretations of the Church Committee as grossly infringing the powers of the president would remain thwarted until he emerged at Vice-President, a position further empowered by the incompetence of the President!

The Executive Branch tends to be a slow learner regarding the need to share responsibility of governance with the Legislative Branch. The tendency to exercise unlimited power repeats itself in virtually every administration.

Without repeating the known problems resulting from the Executive Branch’s decision to operate without the benefit of congressional approval, e.g., invasion of personal privacy of US citizens, loss of trust in the President, illegal activity, loss of moral authority within the international community, the section focusing on the role of lawyers in the Office of Legal Counsel was particularly of interest, given the number of lawyers in our family. The authors are very critical of lawyers providing rationale for actions sought by the President and top officials of the Executive Branch without explicit reference to the “best view of the law” and the contrary opinions of others (in fact, dissenting officials were excluded from participating in the official ruling). As they state, “lawyers have a responsibility to keep faith with the values underpinning our Constitution”. While they have role of providing counsel to the President, they have a higher calling to the Constitution and the American public.