This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration. Stated a bit more bluntly—how we can use the available federal machinery to screw our political enemies. [Hit list of two congressmen and eighteen private US citizens follows, to be destroyed through selective IRS audits, denial of federal grants and contracts, prosecution and government litigation.] [i]

1971 White House internal memo written by John W. Dean III, a member of Nixon’s staff. Hit list subsequently given to Dean by special White House counsel Charles Colsen, for priority. Tendered as evidence to Senate Watergate Committee, 1973.

“[T]he President’s ability to govern is at stake. Another Teapot Dome scandal is possible and the government may fall. Everybody else is on track but you. You are not following the game plan. Get closer to your attorney.”

“You know that if the administration gets its back to the wall, it will have to take steps to defend itself.” [ii]

Testimony by Watergate conspirator James W. McCord Jr before the Senate Watergate Committee, allegedly quoting an ex-Nixon presidential aide attempting to bribe and threaten him into committing perjury.

Imperial Presidency and the Lawless State.

At 2:30 am on the 17th of June 1972 five men were arrested after having broken into rooms of the Democratic Party’s national headquarters, located in the Watergate hotel and office complex in Washington DC. Wearing surgical gloves to avoid fingerprints, the men were discovered carrying electronic surveillance equipment. Once they and two accomplices had been arrested, it became disturbingly clear that here were no common burglars. Out of the seven, five were US citizens while the other two were anti-Castro Cuban émigrés. Five were either former employees of or had associations with the Central Intelligence Agency, three had connections with the White House, one worked in narcotics intelligence and another was an ex-FBI agent.All either pleaded guilty or were convicted of felonies within eight months.[iii] Yet the intricate events surrounding their burglary slowly began to unravel, revealing profound and longstanding executive illegality reaching through the White House to Presidents themselves.

The idea of executive illegality in the United States wasn’t born at Watergate. To public knowledge there’d been at least two earlier administrations tainted with corruption, those of President Warren Harding and President Harry S. Truman. The scandal of Harding’s reign broke after his death on the 2nd of August 1923 and is notorious to history as the Teapot Dome affair. In 1920 Congress had passed the General Leasing Act, permitting (under some conditions) the Secretary of the Navy, a government minister appointed by the President, to lease naval oil reserves on public land to private oil operators. At the urging of his Secretary of the Interior, Albert Fall, and his Secretary of the Navy, Edwin Denby, President Harding signed an executive order in May 1921 transferring jurisdiction over naval oil reserves to the Department of the Interior. The next year Fall granted oil leases over the Elk Hills reserve in California and the Teapot Dome reserve in Wyoming to private oil companies, without public notice or competitive bidding. After Harding’s death it transpired that Fall had accepted bribes of at least US$400,000 from these companies, a vast sum of money at the time. The next occupant of the Oval Office, President Coolidge, sacked Harding’s Attorney-General, Harry M. Daugherty, for failing to prosecute any of the guilty participants. Daugherty’s replacement, Attorney-General Harlan Fiske Stone, promptly purged the Bureau of Investigation (now the FBI), later writing “When I became attorney-general, the Bureau of Investigation was...in exceedingly bad odour...The head of the Bureau...had himself participated in serious infractions of the law and obstructions of justice”.[iv] Fall was imprisoned and Denby resigned, and Teapot Dome became the posthumous hallmark of Harding’s era.

During the Truman administration a number of his White House aides and personal assistants were publicly confronted with allegations of corruption, including his military aide, General Vaughan; the assistant Attorney-General in charge of the Tax Division, T. Lamar Caudle; the general counsel to the Bureau of Internal Revenue, Charles Oliphant; the Internal Revenue Commissioner himself, George Schoenman; former Internal Revenue Commissioner Josef Nunan; chief of the General Services Administration, Jess Larson, and Truman’s appointments secretary Matthew Connolly. Sixty-six officials in the Justice Department and the Bureau of Internal Revenue were forced from office. Nine, including Caudle and Connolly, were imprisoned.[v]

But the revelations of Watergate went far beyond simple monetary corruption. Described as “a mediaeval morality play, acted out in 20th Century terms”[vi] it forced the Senate’s most distinguished constitutional scholar, chairing the Senate Watergate Committee,[vii] to query the continued viability of the United States as a representative democracy.[viii] Discussing the gross executive illegality it revealed without sounding as paranoid as Fox Mulder is difficult. Enough crackpot conspiracy theories exist without further contributions from this or any other book. Fortunately the vast—although incomplete— quantity  of evidence and testimony collected by presidential and congressional committees of inquiry since Nixon’s fall, annotated by commentaries and memoirs written by disillusioned ex-government agents (regrettably often published under lurid titles) are more than enough to counter claims of paranoia. The Ervin Senate Select Committee first investigating Watergate, the Rockefeller Commission headed by the US Vice-President to investigate the CIA’s illegal domestic activities, the Senate Committee chaired by Senator Frank Church and the House Committee chaired by Congressman Otis Pike both investigating general illegal activities by the US intelligence community, heard testimony from serving and former Directors, Deputy Directors and agents of the CIA, FBI and other government agencies, subpoenaed documents and White House officials, and offered limited immunity from prosecution for informers in return for evidence delivered under oath.

One of the most damning documents was the secret internal report ordered by newly-appointed CIA Director James Schlesinger in May 1973, ordering all Agency employees to inform him of inappropriate or illegal Agency activities past or present. To his horror the data he received as a result, nicknamed by the Agency the “family jewels”, consisted of 693 pages of illegal actions: domestic espionage in gross violation of the Agency’s 1947 congressional charter forbidding the Agency from wielding “police, subpoena, law enforcement powers or internal security functions”, including warrantless wiretaps and illegal mail interception on a vast scale; the training of foreign insurgency groups; assassination plots and assassination squads and the possible murder of foreign officials.[ix] Schlesinger remained Director for only five months[x]; his successor, the late William E. Colby, used the report to brief President Ford. Although the Schlesinger Report was never publicly released, parts of it were leaked to the New York Times and CBS News. Taken together with other evidence gathered by the committees of inquiry, a diorama is revealed of executive-approved espionage, blackmail, burglary, political persecution, manufacture of false and incriminating documents against political enemies, kidnapping, illegal possession of lethal or incapacitating drugs, monetary corruption, the running of secret armies abroad and links with organised crime at home.[xi]

The sense of betrayal felt by many decent Americans was expressed by Senator Philip Hart of Michigan, a gentle and honourable man who, appalled when confronted with the truth about the FBI, objected

I have been told for years by, among others, some of my own family, that this is exactly what the Bureau was doing all the time, and in my great wisdom and high office, I assured them that they were wrong—it just wasn’t true, it couldn’t happen. They wouldn’t do it.[xii]

END OF EXCERPT ONE

BEGINNING OF EXCERPT TWO:

Unlawful orders appear to have enjoyed at least equal status with legitimate ones within the executive hierarchy: William Sullivan, the FBI’s former Assistant Director for Intelligence, concluded that the legality of orders was never an issue “because we were just naturally pragmatists...As far as legality is concerned, morals or ethics, [it] was never raised by myself or anybody else”.[xlvii] I say “at least equal status” because former CIA Counter-Intelligence Staff Chief James Angleton has asserted a kind of legitimacy for executive lawlessness, stating “I find it inconceivable that a covert agency is expected to obey all the overt orders of the government”[xlviii]—in his context “overt orders” includes not only the laws and treaties of the United States but presidential directives inconveniently constrained by  those laws.[xlix]

All this has a “bittersweet irony” because in contradistinction Her Majesty’s realms throughout the world employ a modern interpretation of 17th Century principles, themselves based upon the ancient sovereignty of the monarch, to uphold the modern sovereignty of the people. First devised to constrain wayward monarchs, they now constrain wayward Prime Ministers, the modern wielders of executive authority. All executive authority flows from the Crown, the “King can do no wrong”, therefore unlawful orders cannot have authority and so must be disobeyed by servants of the Crown. Since the Bill of Rights of 1689 the Crown has been deprived of any power to suspend or dispense with the laws of the land; from a strictly legal viewpoint Prime Ministers hold their authority purely as servants of the Crown, therefore Prime Ministers also cannot pretend to hold any power to suspend or ignore the laws of the land.[l] Thus the US Constitution, based explicitly upon the sovereignty of the people, has created instead a sovereign President, an elected autocrat, whereas constitutions defining Her Majesty’s governments throughout the world rely upon the forms of a “sovereign” Crown to create the substance of a sovereign people. In America , an inheritor of English common law traditions, the clock's been ticking backwards: the Presidency regaining powers stripped from the Crown centuries ago.

Like an overdue reminder notice of an unpaid debt, the scandal exposed in 1986 revealed that US executive lawlessness remains, unresolved after Watergate. The events of the Iran-Contra Affair read more like the plot of a trashy airport novel rather than contemporary history, so to avoid accusations of sensationalism the following summary is drawn entirely from the account presented by the joint Report of the Congressional Committees Investigating the Iran-Contra Affair, itself published by the US Government the following year.[li] In November 1986 a bizarre story broke: through revelations published in a Beirut weekly, Al-Shiraa, and subsequent statements by the US Attorney-General, it emerged that the Reagan Administration had been secretly and illegally selling arms to Iran in the 1980s, in an attempt to secure the release of American hostages in Lebanon. Senior White House figures had been siphoning off profits from these sales—which had proved lucrative irrespective of hostages—to provide illegal military funding to the Contras in Nicaragua. The Select Committees convened by a horrified Congress unearthed much more, involving President Reagan himself, two of his National Security Advisers (Robert C. McFarlane and Vice-Admiral John M. Poindexter), an NSC staff member[lii] (Lt. Col. Oliver North), and—allegedly—the Director of the CIA, William Casey, who died before his testimony could be heard. The Committees discovered that President Reagan had personally violated the law, setting in motion an international covert agenda without notifying Congress or providing written authorisation. His servants had gone much further, not only secretly selling missiles to Teheran, but pouring the profits into a private organisation (melodramatically christened “the Enterprise”) under a retired US Air Force Major General, Richard V. Secord. Possessing its own aircraft, pilots, operatives, airfield, ship, secure communications technology and millions of dollars in Swiss bank accounts, the Enterprise was created by these officials to enable the White House to engage privately in world-wide covert operations using non-appropriated funds, in secret defiance of Congress and its laws. Abroad the Enterprise gave lethal support to the Contras; at home it engaged in pro-Contra “white propaganda” to defeat hostile Congressmen. The Congressional Committees drew up a list of the laws violated by the White House in this affair: among others, section 501 of the National Security Act, the Arms Export Control Act, the Boland Amendments (forbidding military interference in Nicaragua) and the Appropriations Clause of the US Constitution itself. Also violated by senior White House staff were 18 U.S.C. Section 1001 (the statute concerning the making of false and fraudulent statements to Congress, a criminal offence) and the Presidential Records Act (for their falsification and shredding of official records). The joint Report bleakly concluded that “beyond doubt... fundamental processes of governance were disregarded and the rule of law subverted”.[liii]

After Watergate commentators groped for a title to describe the elective but arbitrary autocracy the office of President had clearly become. They found it in a phrase coined by a Kennedy aide, Arthur Schlesinger, who referred to the position as the “imperial Presidency”;[liv] its occupant, the elected emperor. For epitaph, the hazard this figure poses to the United States was expressed in 1976 at the beginning of the Carter administration, when the book The Lawless State was published. Written under the joint auspices of the American Civil Liberties Union and the Centre for National Security Studies, its authors (including two attorneys and an ex-Deputy Assistant Secretary of Defence and senior staff member of the National Security Council) rejected the proposition that the United States is under the rule of law. Pointing to post-Nixon offences (not to mention subsequent scandals like Iran-Contra) they criticised the attempted reforms after Watergate as empty and ridiculed President Ford's assertion that the American people would not elect an unreliable President (like Nixon), warning

With the executive branch alone standing between political freedom and a police state, we do not have a government of laws, but of men; and there is no inherent reason why the nation should expect to be luckier in its officials from now on.[lv]

Since that protest was lodged the Cold War has ceased. The incumbent President is better known for his sexual follies than any unlawful agenda, and may yet suffer a harsher fate at the hands of Congress over his open fly than Reagan did over Iran-Contra. But voices like that of John W. Dean remain, and with them, the shadow of the lawless State.

Author's Notes:
This chapter was written during the Clinton administration; it has particular poignancy a decade later.
 
The Schlesinger Report (the "Family Jewels")— or at least part of it— has just been declassified as of June 2007, adding additional material to this argument.

This chapter, and indeed the broader argument proposed in this book, has more pertinance than ever, given that we now live in a world plunged back into war.

Given some of the feedback I have been getting from readers, it's important to clarify a few points:

The first is that I have no problem with the concept of the Executive wielding emergency powers in time of war. Sir Winston Churchill's wartime government in Britain, for example, wielded (and needed to wield) extraordinary powers to survive war with the Third Reich.

The second is that we are again at war, one declared on the United States and allies on the 11th September 2001 by Al Qa'ida in New York and Washington. It is not a war we are likely to be able to win for decades, but neither is it a war we can afford to lose. Unlike a conventional war, it has no "safe" zone far from the front line. Although President George W. Bush has asserted naming rights (dubbing it "The War against Terror"), it is not a war waged on our own terms. As both sides have acknowledged, Afghanistan and Iraq are simply current theatres of conflict in this broader war, with terrorists launching attacks in London, Madrid and Bali. 

Consequently, emergency Executive powers again make sense during this crisis. The questions remain, what constraints are there on these emergency powers once awarded, to preserve civil liberties, and what risks are there for "mission creep" in misuse of power for improper political outcomes?

In the Westminster system, these emergency Executive powers come from the Crown, which also imposes constraints, from centuries of legal and political conventions and from its human guardian, the monarch or her representative. This was explicitly conceded by Churchill, who approved of this constraint on him as Prime Minister, remarking that the virtue of the Crown lay not the power it took to itself (which it cannot wield without ministers), but the power it denied others (i.e. the Prime Minister and Cabinet). 

For a parliamentary democracy the Crown, of course, is not a complete solution in itself. To preserve democratic integrity in times of crisis, vigorous Parliamentary and judicial scrutiny are also essential, as is a vigilant Fourth Estate. But, I would argue, maintaining the Crown as a safeguard is surely better than not having one.

As Canada and Australia demonstrate, additional safeguards can also co-exist, namely a written Constitution, either with or without a declaration of rights. However these additional safeguards operate in a fundamentally different way, and have the problem of justiciability.

In comparison the United States is studied here, because it's a kindred country, with a shared ancestry in English common law, but without this safeguard of the Crown. Some US readers have tried to accuse me of being anti-American; in reality, US politics is put beneath the magnifying glass for quite the opposite reason. At least two of the greatest drafters of the US Constitution, Alexander Hamilton and John Dickenson, expressed their regret at losing the Crown during the debates at Philadelphia. In particular Dickenson, the "Penman of the Revolution", remarked that without the Crown, he feared the US Constitution would be fundamentally flawed (and hence advocated the federal system as an alternative way of restraining the President politically).   

Modern Americans lack the (British)constitutional context to understand Dickenson's fears and Hamilton's misgivings. It is an irony of history that modern citizens of Commonwealth realms are in a better position to comprehend the arguments of the drafters at Philadelphia than are their American counterparts. 

 

For an example in modern history of Crown intervention when confronted by gross Executive illegality, see here.