Incoming presidents often announce bold changes in policy and constitutional direction by the issuance of executive orders--those rules and regulations that provide for the execution of laws and give direction to federal agencies. In his first week in office, Obama has issued executive orders that have halted the military prosecutions of Guantanamo prisoners, closed that infamous base, repudiated torture and reasserted the primacy of the Geneva Conventions, and lifted the ban on directing money to international agencies that fund abortions. This should surprise no one.
One such constitutional order has not yet received a lot of attention, but is worth noting. Obama has made presidential records easier to obtain. This move towards transparency has long been a concern for historians, charged as we are professionally with the accurate reading of our documentary past.
Obama's order reverses a little-known Bush policy. Back in November of 2001, George W. Bush signed executive order 13233. The law added additional regulations to the National Archives's ability to release presidential records. The rule had hitherto been that presidential records would be sealed for twelve years after the close of an administration. After that time, any request for presidential records not yet catalogued and available to the general public would first be cleared through the sitting president, who might claim executive privilege. Given that ongoing diplomatic efforts might be harmed by the release of certain records, this seems a perfectly reasonable regulation. Bush's order 13233 added this requirement: all such requests now had to be cleared by the sitting president AND the former president. (Former president meaning the president whose records were being requested).
Bush's executive order grounded itself in the idea that executive privilege outlasted the office--that is, the former president still retained privilege over documents produced by his office. This is a dubious principle, although one tentatively supported by the Supreme Court in Nixon v. Administrator of Public Services (1977). I should note here that the decision in Nixon was divided--the justices wrote seriatim--and Bush's executive order cited the solicitor general's brief rather than the opinion of the justice.
Bush issued the executive order just as former president Ronald Reagan's records were to become available, the requisite 12 years after the end of his administration having lapsed. Many have speculated that he was protecting (among other people) his father, whose role in the Iran-Contra affair has never been fully disclosed. The records Reagan sealed when he left office should have been opened eight years ago. But the lawsuit filed by the American Historical Association moved slowly, and never did get the results they wanted.
Historians have a reason to celebrate now. And, of course, a reason to get to work.
Saturday, January 24, 2009
Thursday, January 22, 2009
Inaugural Moments
What matters ceremony? Americans have historically been somewhat schizophrenic about the subject. On the one hand, ceremony implies elitist ritual more associated with aristocracy or monarchy than democracy. On the other, we seem to turn out (or tune in) in record numbers every time a ceremony promises to be a moment of history (whatever that may mean).
So now may be a good time for reflection about what the ceremony of the inaugural is really about. Here I am speaking not so much about the speech (Jill Lepore did a wonderful job of telling the history of inaugural addresses in the New Yorker), but the ceremonies that surround the inaugural address. And no, these are not unimportant trappings to dress up an otherwise simple act of oath-
taking and office assumption. Ceremonial conferring of power is important for the signals they deliver and the codes which contain them, and have always been so even in our fiercely republican America.
John Adams, for instance, showed up to his inauguration in a suit of fine pearl gray broadcloth, complete with a cockaded hat and a sword. As if to answer such aristocratic pretensions (Adams was, after all, the one who wished the President's title to be "His Excellency"), Thomas Jefferson walked to his inaugural in clothes that, according to several onlookers, barely distinguished him from the militia troops assembled nearby. This was not poor planning on Jefferson's part--no one can imagine that he awoke on that day of all days and had nothing nice in the closet to wear. It was a self-conscious democratic pretention on Jefferson's part, just as much as was his walk to the Capitol (Adams, after all, arrived by carriage).
If Jefferson repudiated Adams (and Federalist aristocratic pretensions), then he found himself snubbed in turn. John Marshall, newly appointed chief justice, delivered the oath of office upon Jefferson's request. But he turned his back on Jefferson during the address, an action not soon forgotten by angry Democratic-Republicans. Marshall would not make another such snub until the election of 1828, when he famously ended his political neutrality as chief justice by casting a ballot in the presidential election of that year--not so much for John Quincy Adams as against Andrew Jackson. Jackson's victory in the election led to another fantastic inaugural memory: his famous reception party at the White House where he symbolically invited in "the people." They came, and they looted the place. Jackson barely escaped being crushed alive before assuming the duties of office.
These ceremonial moments were all consciously planned. Jefferson, Marshall, and Jackson understood the importance of ceremony and meant to send certain signals to political friends and enemies alike. They may have been able to be more spontaneous--no secret service detail in those days--but they nonetheless crafted their ceremonies understanding what signals they were sending. And of course, such spontaneity is even more a mirage today. Can anyone doubt that Jimmy Carter's "spontaneous" exit from the limousine and walk to the White House comported nicely with his desire to be seen as a "people's president"?
Not that spontaneity could not intrude. There was nothing planned about James Buchanan's (1857-1861) frequent trips to the bathroom that interrupted his inaugural address. Buchanan had contracted "Hotel Dysentery" as it was called. Nor was there anything planned about the riot at George W. Bush's 2001 inauguration that sent the limos in high speed from the Capitol to the White House. With hindsight, both of these moments seem eerily prophetic. Buchanan, after all, began his presidency by exulting the decision of Dred Scott v. Sandford (1857), widely reviled as the worst U.S. Supreme Court decision ever, and ended by whistling through the graveyard as state after state seceded from the Union. Such blunders seem foretold in an inaugural address more marked by the deliverer's acute diarrhea than his stunning oratory. And the riot that kicked off Bush II's presidency presaged the conditions of his exit: hugely unpopular with the people, out of touch with reality, and divisive (not decisive) in a crisis.
There was some of the spontaneous in the Obama inauguration as well. Chief Justice John G. Roberts and President Obama both flubbed the simplest part--the oath of office. That these two men, renown constitutional officers and scholars in their own right, known for their elocution and their intelligence, could make so simple a mistake is--in its own right--astounding. One hopes that it is not a bit of prophesy as well.
So now may be a good time for reflection about what the ceremony of the inaugural is really about. Here I am speaking not so much about the speech (Jill Lepore did a wonderful job of telling the history of inaugural addresses in the New Yorker), but the ceremonies that surround the inaugural address. And no, these are not unimportant trappings to dress up an otherwise simple act of oath-
taking and office assumption. Ceremonial conferring of power is important for the signals they deliver and the codes which contain them, and have always been so even in our fiercely republican America.John Adams, for instance, showed up to his inauguration in a suit of fine pearl gray broadcloth, complete with a cockaded hat and a sword. As if to answer such aristocratic pretensions (Adams was, after all, the one who wished the President's title to be "His Excellency"), Thomas Jefferson walked to his inaugural in clothes that, according to several onlookers, barely distinguished him from the militia troops assembled nearby. This was not poor planning on Jefferson's part--no one can imagine that he awoke on that day of all days and had nothing nice in the closet to wear. It was a self-conscious democratic pretention on Jefferson's part, just as much as was his walk to the Capitol (Adams, after all, arrived by carriage).
If Jefferson repudiated Adams (and Federalist aristocratic pretensions), then he found himself snubbed in turn. John Marshall, newly appointed chief justice, delivered the oath of office upon Jefferson's request. But he turned his back on Jefferson during the address, an action not soon forgotten by angry Democratic-Republicans. Marshall would not make another such snub until the election of 1828, when he famously ended his political neutrality as chief justice by casting a ballot in the presidential election of that year--not so much for John Quincy Adams as against Andrew Jackson. Jackson's victory in the election led to another fantastic inaugural memory: his famous reception party at the White House where he symbolically invited in "the people." They came, and they looted the place. Jackson barely escaped being crushed alive before assuming the duties of office.
These ceremonial moments were all consciously planned. Jefferson, Marshall, and Jackson understood the importance of ceremony and meant to send certain signals to political friends and enemies alike. They may have been able to be more spontaneous--no secret service detail in those days--but they nonetheless crafted their ceremonies understanding what signals they were sending. And of course, such spontaneity is even more a mirage today. Can anyone doubt that Jimmy Carter's "spontaneous" exit from the limousine and walk to the White House comported nicely with his desire to be seen as a "people's president"?
Not that spontaneity could not intrude. There was nothing planned about James Buchanan's (1857-1861) frequent trips to the bathroom that interrupted his inaugural address. Buchanan had contracted "Hotel Dysentery" as it was called. Nor was there anything planned about the riot at George W. Bush's 2001 inauguration that sent the limos in high speed from the Capitol to the White House. With hindsight, both of these moments seem eerily prophetic. Buchanan, after all, began his presidency by exulting the decision of Dred Scott v. Sandford (1857), widely reviled as the worst U.S. Supreme Court decision ever, and ended by whistling through the graveyard as state after state seceded from the Union. Such blunders seem foretold in an inaugural address more marked by the deliverer's acute diarrhea than his stunning oratory. And the riot that kicked off Bush II's presidency presaged the conditions of his exit: hugely unpopular with the people, out of touch with reality, and divisive (not decisive) in a crisis.
There was some of the spontaneous in the Obama inauguration as well. Chief Justice John G. Roberts and President Obama both flubbed the simplest part--the oath of office. That these two men, renown constitutional officers and scholars in their own right, known for their elocution and their intelligence, could make so simple a mistake is--in its own right--astounding. One hopes that it is not a bit of prophesy as well.
Wednesday, January 21, 2009
Guantanamo Watch
One of Obama's first acts as president was to issue a request to halt all prosecutions by military tribunal of Guantanamo prisoners. It is not quite an order--it has to be submitted as a motion by prosecutors to the judges operating the courts--but given executive control over the military, it should mean an immediate halt to prosecutions.
Given all the revelations of torture at Guantanamo (video reports here and here), this is the only manner in which Obama can ethically proceed. But reviewing military commissions and slowly considering policy can only be a start. The detainees might be tried by civilian courts in the United States. Or they may be quietly forgotten and then moved to shadow prisons in Afghanistan and elsewhere. Given the high likilihood that the American military is detaining a significant number of people who are neither enemies of America or a future threat (and, for that matter, not guilty of any wrongdoing that America could legally and morally seek to punish) this potential should shake lovers of constituional liberty and human rights.
It is somewhat disquieting that so much power remains in the hands of the executive in this matter. In that sense, at least, Obama's constitutional position is little changed from that of George W., who left office (seemingly) confident that he had done the right thing. For Obama to begin effecting true constitutional change, he will have to repudiate not merely the prison at Guantanamo, but the principles that allowed it.
Given all the revelations of torture at Guantanamo (video reports here and here), this is the only manner in which Obama can ethically proceed. But reviewing military commissions and slowly considering policy can only be a start. The detainees might be tried by civilian courts in the United States. Or they may be quietly forgotten and then moved to shadow prisons in Afghanistan and elsewhere. Given the high likilihood that the American military is detaining a significant number of people who are neither enemies of America or a future threat (and, for that matter, not guilty of any wrongdoing that America could legally and morally seek to punish) this potential should shake lovers of constituional liberty and human rights.
It is somewhat disquieting that so much power remains in the hands of the executive in this matter. In that sense, at least, Obama's constitutional position is little changed from that of George W., who left office (seemingly) confident that he had done the right thing. For Obama to begin effecting true constitutional change, he will have to repudiate not merely the prison at Guantanamo, but the principles that allowed it.
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