When the New York Times recently reported that the Bush administration was routinely tracking international and domestic financial transactions, the president said he was doing these things under emergency powers granted to him by Congress. While many commentators have openly questioned the legality of Bush’s actions, there are deeper questions to be asked than simply “Is this legal?”
Indeed, as federal and state laws become more expansive and historical liberties are routinely crushed, perhaps it is time to look at the laws themselves, as opposed to seeing only whether President Bush’s actions are legal. Even if one is keeping to the letter (and even the spirit) of a law that violates individual rights, the larger and more pertinent question is not “Is it legal?” but rather “Why does this law exist anyway?”
Issues of national emergencies and presidential emergency powers existed long before the devastating attacks of September 11, 2001. One can argue that George Washington grabbed what could only be called “emergency powers” when he led an army of federalized troops into Western Pennsylvania in order to enforce collection of taxes on “spirits.” While no courts ever ruled on his actions, Washington certainly pushed the envelope with respect to the exercise of “emergency powers.”
Although other presidents have engaged in conduct that arguably could be termed an abuse of power, no one truly claimed “emergency” powers until Abraham Lincoln, who in 1861 suspended habeas corpus, ordered the arrest of thousands of people, and held others without trial. The war that dominated his presidency — whether one wishes to call it a “Civil War” or a “War Between the States” or something else — also was waged without constitutional authority.
Indeed, if one examines Lincoln’s presidency, one finds that he established a number of precedents that demonstrated that if a president wishes to cross the line of legality, there is little to stop him from doing so. Of course, Lincoln’s supporters say that the president was simply demonstrating leadership during a time of crisis and that if ever there was a time to use “emergency powers,” that certainly was it.
This claim must be examined. None of the first seven states that announced secession from the United States bordered the nation’s capital, and neither they nor the states that later joined the Confederate States of America ever called for an invasion of the United States. There was no “emergency” in the United States, or at least the United States as it then existed was in no danger of being attacked by foreign forces.
After the Fort Sumter incident of April 1861, Lincoln announced his intention of invading the Confederate states, an action that triggered the secession of Virginia, North Carolina, Tennessee, and Arkansas. Moreover, he used force to keep Maryland from seceding, not to mention employing force (and political wiles) to keep Kentucky and Missouri in the Union. From the blockade against Southern ports to the war effort itself, Lincoln assumed powers of the presidency that his critics said were not appropriated by the Constitution.
The point here is not to rehash the Lincoln presidency but rather to point out that the use of emergency powers requires a precedent: a president must claim reason to do so, but afterwards, it becomes easier for successors to do the same thing. Thus, while Lincoln’s actions shocked many people who believed the Constitution’s separation of powers presented a legal bulwark against what actually took place from 1861 to 1865, it did not take long for political ideologies to change and for increased executive powers to become more widely accepted.
The Progressive Era of the late 19th and early 20th centuries in many ways was an ideological and legal revolt against constitutional government. Progressives preached that the “archaic” system giving powers of law to Congress placed unnecessary limits on executive power. Moreover, they believed that “progress” could be made only in the direction of centralizing the powers of the state. (See my series on Progressivism in the February and March 2006 issues of Freedom Daily for more on this movement.)
While many of the Progressive goals, such as direct election of U.S. senators and establishment of the national income tax, were implemented by means of the legal process of constitutional amendments, U.S. entry into World War I in 1917 resulted in Woodrow Wilson’s grabbing powers that had been dormant since the Lincoln era. Not only did Wilson engineer the Espionage and Sedition Acts, which led to the arrest of some 1,500 outspoken war opponents, he also used “emergency” powers to seize the railroads and to generally place the U.S. economy under a semi-dictatorship. Furthermore, Congress in 1917 passed the Trading with the Enemy Act, which gave the president powers to restrict or forbid trade with individuals from countries whose governments were “hostile to the United States.”
Perpetual emergencies
It comes as no surprise that the Progressive economic and political agenda ultimately led to a crisis — the Great Depression. After Franklin Roosevelt took office in 1933, he invoked the “emergency powers” that had been written into the Trading with the Enemy Act in 1917 to seize privately held gold in order to inflate the dollar. Presumably he thought that inflation would stimulate consumer spending and “revitalize” the moribund U.S. economy. Like his other New Deal policies, this one provided little relief but instead further undermined private enterprise. Thanks to Progressive rhetoric, however, the myth lives on to this day that Roosevelt’s economic policies somehow “ended” the Great Depression.
The ultimate irony here is that the Great Depression came about because of government intervention into the economy through monetary policies, short-sighted trade policies, and huge tax increases. Whatever “state of emergency” existed in the United States at that time was due to government itself and certainly could not be ended by endowing a president with even more power.
Harry Truman and Richard Nixon later continued the use of “emergencies.” Truman declared an emergency when war broke out in Korea, while Nixon said that a 1970 postal strike and the 1971 “crisis” created by U.S. monetary policies fit the “state of emergency” category. (See “The New Deal and Roosevelt’s Seizure of Gold: A Legacy of Theft and Inflation,” Freedom Daily, September 2006, for more on the 1971 crisis.)
International emergencies
In 1976 Congress passed the National Emergencies Act, ostensibly to attempt to have the so-called emergencies formalized and to increase the powers of congressional oversight. The Watergate scandal had politically weakened Nixon and his successor, Gerald R. Ford, and ultimately brought in a heavily Democratic Congress in the 1974 elections. At that point, Congress attempted to rein in some of the presidential powers, for example by enacting the War Powers Act, which limited the president’s power to initiate war. Presidents, however, have continued to ignore it. Unfortunately, the members of Congress were more liberal than the presidents and pushed through a number of additions to the welfare state that continue to burden taxpayers and the economy today.
In the first year of Jimmy Carter’s presidency, Congress passed the International Economic Powers Act, supposedly in the spirit of reform. The law gives the president the authority to claim an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States” that is caused by circumstances outside or mostly outside the United States. The law gives presidents the power to freeze financial assets of countries (and companies located in them) as well as levy trade sanctions and the like. As part of the National Emergencies Act, it supposedly codifies the limits of presidential authority, requiring annual renewal of the emergency declaration, which Congress has the authority to end.
Whatever the intentions of this act may have been, the reality has been that presidents have used it to grab even more power at the expense of individual liberty.
The scenario for invoking the International Economic Powers Act is usually as follows: First, a political crisis develops in a foreign country, often one which is relatively small and which poses no threat to the United States. Second, an outcry arises from certain political groups, which is then amplified in the news media. Third, the president announces “economic sanctions” on that country, ostensibly to force its government to “behave.”
For example, in November 1979, while Iran and the United States were trading partners, Iranian students and demonstrators took over the U.S. embassy in Tehran, holding embassy personnel as hostages. (The crisis began when the Carter administration permitted the deposed shah to receive medical treatment for cancer in New York City. The students demanded the return of the shah to Iran in exchange for the embassy hostages.)
Under the authority granted in the IEPA, Carter declared economic sanctions on Iran (that remain in effect to this day), which not only dried up trade between the two countries, but also limited the personal travel of Americans to Iran and essentially ended cross-cultural contacts between Americans and Iranians. (Part of the scandal of the Iran-Contra affair was the fact that Ronald Reagan authorized the selling of arms to Iran, which violated his own executive orders made under the IEPA.)
Iran is hardly the only state to be listed in the IEPA hit list. Iraq was on the list from 1990 (when its armies invaded Kuwait) until 2004 — after the U.S. invasion. Other countries include:
- Haiti (1991—1994 for deposing elected president Aristide)
- Kuwait (1990—1991, while occupied by Iraq)
- Liberia (2001—2004 for human rights violations)
- Libya (1986—2004 for sponsoring terrorism)
- Nicaragua (1985—1990 for aggressive activities in Central America)
- Panama (1988—1990 for a military coup by Manuel Noriega)
- Serbia and Montenegro (1992—2003 for sponsoring Serb nationalist groups)
- Sierra Leone (2001—2004 for human rights violations)
- South Africa (1985—1991 for maintaining apartheid)
- Angola (1993—2003 for interference with UN peacekeeping efforts)
What is striking about this list is that none of these countries posed a threat to the peace, security, or economy of the United States. While Libya’s government did sponsor terrorist attacks in which some Americans were killed, at no time did Libya actually threaten this country with invasion and occupation.
Although none of these countries ever truly threatened the United States, it is clear that they were the targets of certain political groups that had political influence — and good access to the news media. For example, the sanctions against South Africa were imposed because of the country’s internal racial policies, not because of any real threat to the United States. While apartheid clearly was obnoxious, it was no worse in practice than the internal policies of the USSR, which enjoyed “most favored nation” trade status in its relationships with this country.
Likewise, conservatives, while decrying sanctions on South Africa, had no problems with economic isolation of Nicaragua when the Sandinistas were in power, and conservatives are behind the current trade and travel sanctions against Cuba. Likewise, liberals opposed sanctions against the Sandinistas but were happy to levy sanctions against Serbia and Montenegro and later to bomb those countries into submission in 1999.
The IEPA is not so much a law that protects the United States and its people as it is a political tool to be used by the U.S. government against countries that both are relatively weak militarily and are opposed by certain political groups in this country.
The terrorism emergency
Abuse of authority naturally comes with this kind of political power. Indeed, the very reason that the Founders of this country stressed separation of powers was to keep any one branch from becoming all-powerful, precisely because the Founders understood human nature and political power-grabbing.
Consider the so-called war on terrorism. Justice Department prosecutors have been quick to apply the “terrorism” statutes to cases that clearly do not involve anything resembling “terrorism.” Conservatives are even calling for editors of the New York Times to be arrested and tried for aiding and abetting terrorism by revealing that the NSA was monitoring and recording telephone conversations without obtaining warrants. Some of them are even calling for the Times to be prosecuted for treason, a capital crime.
Another example: the latest version of the USA PATRIOT Act permits lawyers from the U.S. Department of Justice to wiretap business executives in the name of “investigating” antitrust accusations. Since any firm is vulnerable at any time to antitrust “violations,” given the broad nature of antitrust law, it is safe to say that any executive at any time can assume that his telephone may be tapped, in the name of the “war on terrorism.”
Likewise, as federal agents troll through individual financial accounts, it is not difficult to imagine that they will be looking to find evidence of financial crimes. Given the broad nature of federal criminal statutes, we can rest assured that in the name of the “war on terrorism” this latest hunt for “terrorists” by examining individual financial transactions of ordinary businessmen will result in the conviction and imprisonment of people who are engaging in normal business activity. A vast government network that is spying on people’s financial accounts is going to accomplish nothing more than empower government prosecutors to charge ordinary people with crimes that historically have not been considered to be crimes at all.
