Today marks the 20th anniversary of a little-known but remarkably important document: Executive Order 12866, issued by President Bill Clinton in 1993. Executive Order 12866 replaced an order issued by President Ronald Reagan in 1981. Both of these documents set out a process whereby the White House – acting through the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) – would review major agency rules before they were issued.
Executive Order 12866, and the Reagan order before it, ushered in a new era in administrative law, one in which the White House would become the dominant force in administrative rulemaking and in which cost-benefit analysis would become the overarching framework for evaluating the wisdom of rules. Professional career staff in the agencies, steeped in the technical fields relevant to the agencies’ work, would see their work product changed, sometimes dramatically, by professional career staff in OIRA. Political management at the agencies would find their actions scrutinized, revised, and sometimes stopped altogether by political operatives at the White House.
Even where statutes (as most do) charged a particular agency with making a particular technical finding and set forth a decision-making framework other than cost-benefit analysis, the White House process of regulatory review displaced those agency decision makers and supplanted the statutory standard with a cost-benefit test. The executive orders under both Reagan and Clinton qualified their reach by stating that they were to be applied “to the extent permitted by law,” but administrative law developments in the Supreme Court subsequent to the Reagan executive order – in particular, the famous Chevron decision – give tremendous leeway to agencies in interpreting the statutes they administer, and OIRA has taken upon itself to instruct agencies how to interpret these laws. Thus the constraint of following existing law is more illusory than real.
Twelve years ago, as the nation was reeling from the worst terrorist attack in its history, Congress authorized the president to use “all necessary and appropriate force” against those that “planned, authorized, committed, or aided” the September 11th attacks.” Notably, Congress refused the Bush administration’s much broader proposal to authorize the use of force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Thus, even as the nation was reeling from the worst terrorist attack in its history, Congress rejected a broad-scale “war on terrorism,” and instead passed a relatively limited force authorization against those responsible for the September 11th attacks, for the express purpose of “prevent[ing] any future acts of international terrorism against the United States by such nations, organizations or persons.”
Over time, however, the authorization (the “AUMF”) has been augmented by interpretive gloss. Both the Bush and Obama administrations – with subsequent ratification by Congress with respect to detention – have defined the AUMF to cover the use of force against not just al Qaeda and the Taliban as the groups directly responsible for Sept. 11, but their “associated forces” as well. This interpretation provides the green light for hundreds of lethal operations in Yemen and Somalia directed at members of al-Qaeda in the Arabian Peninsula and al-Qaeda associated elements of al Shabaab. Some have suggested that members of al Qaeda in the Islamic Maghreb (operating in Mali) and the al-Nusra Front (operating in Syria) should be – or already are – covered by the 2001 AUMF and are therefore legitimate targets as well. To add to the confusion, the Obama administration refuses to publicly state which groups fall within the scope of “associated forces,” thereby raising fears of an ever-expanding war against an ever-expanding enemy based on an ever-expanding interpretation of the AUMF.
It was an encouraging development for the rule of law when President Obama decided to ask Congress for legislative authorization to take military action in Syria. When Obama took office in 2009, it was reasonable to expect that his administration would move away from the Bush-Cheney-Yoo unitary executive model, which was essentially an argument for unchecked presidential power. However, while the Obama administration has certainly not embraced the outlandish unitary executive theory, it has, at times, found ways to skirt limits on presidential power. The most prominent examples are probably the targeted killing, without judicial hearing, of U.S. citizens believed to be terrorist leaders and the administration’s decision to order military action in Libya in 2011. As I have argued elsewhere, in each case, executive branch lawyers in the Obama administration found ways to justify unilateral presidential action unchecked by the other branches of government.
Obama’s decision to involve Congress in the debate over the use of military force in Syria suggests a meaningful acknowledgment that presidential power is accountable to checks and balances. As I have written for the Los Angeles Times, Obama’s decision to seek congressional approval was required by the Constitution since the United States has not been attacked by Syria. However, it was far from clear that Obama would turn to Congress. Advocates of presidential power point out that past practice -- including Obama’s own action in Libya -- supports the conclusion that presidents can more broadly use military force when it is in the national interest, and not only when the U.S. is attacked. The fact that Obama did not act on his own is a positive sign and may help prevent future presidents from unilaterally using military force (picture a hypothetical President Ted Cruz deciding the national interest justified an attack against Canada).
There is reason to contain one’s optimism, though, when it comes to setting new limits on the use of presidential power. Obama has stated that he reserves the right to use military force even if Congress declines to pass authorizing legislation. That is disconcerting, and simply does not make a great deal of sense. What is the point of Congress making a decision if it is merely an advisory opinion? If Congress decides not to authorize the use of military force in Libya, Obama should respect that decision and should not act on his own. Unilateral action under these circumstances would be a dangerous decision for the Constitution, and could also be a bad political move. Some Republican members of Congress have made clear that they are eager to find a reason, any reason, to impeach President Obama and remove him from office. To date, there is no legitimate reason to support such an idea. However, if Obama ordered military action in defiance of Congress, that could provide his political opponents with a legitimate argument for impeachment.
A United States intelligence employee sends classified government documents to the news media and ignites a national debate. Some hail him as a hero and whistleblower, others denounce him as a traitor. You might think we are talking about Edward Snowden, the National Security Agency contractor who disclosed details of PRISM, the NSA’s massive surveillance program in June. But we are also talking about Daniel Ellsberg, the Department of Defense consultant who provided the Pentagon Papers to The New York Times 40 years ago to reveal the truth, which help end the Vietnam War.
My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government’s secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven’t written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn’t do. (See exceptions here and here).
But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects “any disclosure” that a covered employee reasonably believes evidences “any violation of any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.”
In the two months since Snowden’s alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders “incredibly troubling,” and “an overbroad interpretation of the Act” that “raise[s] questions about whether our constitutional rights are secure.”