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Guarding the Parchment Barrier:The Attorney General and Presidential Power in Wartime

  • Nancy V. Baker
Chapter
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Part of the The Evolving American Presidency Series book series (EAP)

Abstract

Definitions of the attributes of democratic governance vary, but at the core of every definition is the idea that citizens are engaged in the decision-making process. As Arend Lijphart noted, a democracy is government by the people, or in modern nation-states, “indirectly through representatives whom they elect on a free and equal basis.”1 The people, to share in democratic decision-making, must have access to accurate information about pending policies and official actions. To express its will, the citizenry must be free to seek out information, and to peacefully assemble and organize to oppose government policies. Scholars have noted, “A democratic political system is largely defined by the relative liberty of citizens to criticize existing distributions of political power and institutional arrangements.”2

Keywords

Attorney General Executive Branch Democratic Governance Justice Department Executive Power 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.
    Arend Lijphart, Democracies:Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven:Yale University Press, 1984), 1.Google Scholar
  2. 2.
    Samuel Issacharoff, Pamela Karlan, and Richard Pildes, The Law of Democracy:Legal Structure of the Political Process (Westbury, NY:Foundation Press, 1998), 1.Google Scholar
  3. 3.
    Robert A. Dahl, Polyarchy:Participation and Opposition (New Haven:Yale University Press, 1971).Google Scholar
  4. 4.
    James Madison, “Federalist No. 47,” The Federalist Papers, Roy Fairfield, ed. (Baltimore:Johns Hopkins University Press, 1981), 139.Google Scholar
  5. 6.
    Ira Glasser, “Visions of Liberty,” August 11, 1996, American Civil Liberties Union, available at <archive.aclu.org/library/vision6.html.> Accessed November 1, 2004.Google Scholar
  6. 8.
    Kenneth Mayer and Kevin Price, “Unilateral Presidential Powers:Significant Executive Orders, 1949–99,” Presidential Studies Quarterly 32 (2002):380.Google Scholar
  7. 13.
    Lee Epstein, and Thomas Walker, Constitutional Law for a Changing America:Institutional Powers and Constraints, 5th ed. (Washington DC:CQ Press, 2004), 283.Google Scholar
  8. 14.
    Quoted in Martha Sawyer Allen and Graydon Royce, “Defining the Common Good,” Minneapolis Star-Tribune, February 9, 2002, 7B. See also Robert Bellah, “Religion and Legitimation in the American Republic,” Society 15 (1978):16–23; and Brian Lowe, “Soviet and American Civil Religion:A Comparison,” Journal of Interdisciplinary Studies 13 (2001):73.Google Scholar
  9. 16.
    Maeva Marcus, Truman and the Steel Seizure Case (New York:Columbia University Press, 1977), 172.Google Scholar
  10. 17.
    Francis Biddle, In Brief Authority (Garden City, NY:Doubleday, 1962), 205–26.Google Scholar
  11. 19.
    Nancy Baker, Conflicting Loyalties:Law & Politics in the Attorney General’s Office, 1789–1990 (Lawrence, KS:University Press of Kansas, 1992), 25–6.Google Scholar
  12. 20.
    Betty Houchin Winfield, “ ‘To Support and Defend the Constitution of the United States against All Enemies, Foreign and Domestic’:Four Types of Attorneys General and Wartime Stress,” Missouri Law Review 69 (2004):1095–115.Google Scholar
  13. 22.
    Robert Dallek, Flawed Giant:Lyndon Johnson and His Times 1961–1973 (New York:Oxford University Press, 1998), 185–6, 624.Google Scholar
  14. 24.
    Arthur Schlesinger Jr., The Imperial Presidency (Boston:Houghton-Mifflin, 1973), Chap. 7.Google Scholar
  15. 25.
    Gerald McKnight, The Last Crusade:Martin Luther King Jr., the FBI and the Poor People’s Campaign (Boulder, CO:Westview Press, 1998), 93.Google Scholar
  16. 26.
    Harri Baker, Oral History Interview V with Ramsey Clark, June 3, 1969, Falls Church, Virginia, Lyndon Baines Johnson Library, University of Texas at Austin.Google Scholar
  17. 27.
    Harri Baker, Oral History Interview IV with Ramsey Clark, April 16, 1969, Falls Church, Virginia.Google Scholar
  18. 38.
    Dallek, Flawed Giant, 487–9. Dallek points out that Clark, like Johnson, believed the antiwar movement included groups with communist affiliations and that the attorney general attempted to undermine the protest’s effectiveness. Even so, Clark advised against “affirmative action … to outlaw the demonstration,” such as an injunction. See Ramsey Clark, “Memorandum for the President, Re:October 21 Demonstration,” October 3, 1967; and Roger Wilkins, “Memorandum for the Attorney General,” October 5, 1967, both in Warren Christopher Papers Box 8, “Anti-Vietnam Demonstration, Oct. 21–22,” Lyndon Baines Johnson Library, University of Texas at Austin. As deputy attorney general, Warren Christopher issued a statement on October 20 reiterating the view of the Justice Department that “The right of peaceful assembly and the right of expression are central to our country’s freedom,” and for these reasons a permit was issued for the antiwar march and rally, but that “it is also a law abiding country. We will do whatever is necessary to maintain law and order.” WHCFNimetz Ofc.- Box 14, “Weekend of Oct. 21 (2 of 3),” LBJ Library.Google Scholar
  19. 41.
    Nancy Baker, “The Impact of Antiterrorism Policies on Separation of Powers:Assessing John Ashcroft’s Role,” Presidential Studies Quarterly 32, no. 4, (December 2002):765–78.Google Scholar
  20. 42.
    U.S. Senate, Committee on the Judiciary, “Hearings on Department of Justice Oversight:Preserving Our Freedoms While Defending Against Terrorism.” Witness:John Ashcroft, U.S. Attorney General. December 6, 2001. 107th Cong. 1st Sess, Federal News Service.Google Scholar
  21. 43.
    U.S. House, Committee on the Judiciary, “Hearings on the Justice Department and the USA Patriot Act.” Witness:John Ashcroft, U.S. attorney general, June 5, 2003, Federal News Service, 24. Wen Ho Lee, a weapons code scientist at Los Alamos National Laboratory, was indicted and detained for nine months in 1999 for stealing nuclear secrets for China, a charge that did not hold up after an inept federal investigation. See Dan Stober and Ian Hoffman, A Convenient Spy (New York:Simon & Schuster, 2001).Google Scholar
  22. 44.
    John Ashcroft, Memorandum for Heads of All Federal Departments and Agencies, “Subject:The Freedom of Information Act,” October 12, 2001, Department of Justice. Available at <www.usdoj.gov/04foia/011012.htm.> Accessed on January 15, 2005.Google Scholar
  23. 45.
    Winfield, “To Support and Defend the Constitution of the United States against All Enemies, Foreign and Domestic,” 1099.Google Scholar
  24. 46.
    Tom Curley, “AP President’s Speech before the Associated Press Managing Editors,” Hays Press-Enterprise Lecture Series, May 7, 2004. Available at <www.apme.com/news/curley.shtml.> Accessed on January 15, 2005.Google Scholar
  25. 47.
    Nancy Baker, “National Security versus Civil Liberties,” Presidential Studies Quarterly 33, no. 3 (September 2003):547–67.Google Scholar
  26. 48.
    Adriel Bettelheim, “Changing Tone of Homeland Security Debate,” Congressional Quarterly, August 1, 2002, 2222; Jackie Koszczuk, “Ashcroft Drawing Criticism from Both Sides of the Aisle,” Congressional Quarterly, September 7, 2002, 2286.Google Scholar
  27. 49.
    Alan Elsner, “Bush Expands Government Secrecy, Arouses Critics,” Reuters, September 3, 2002.Google Scholar
  28. 50.
    U.S. Senate, “Hearings on Department of Justice Oversight,” 2001.Google Scholar
  29. 51.
    Dan Eggen, “Ashcroft Defends Tough Policies,” Washington Post, February 2, 2005, A02.Google Scholar
  30. 53.
    Eric Lichtblau, “F.B.I. Scrutinizes Antiwar Rallies,” New York Times, November 23, 2003, A1.Google Scholar
  31. 54.
    John Ashcroft, “The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations,” May 30, 2002, available at www.usdoj.gov/olp/generalcrimes2.pdf. Accessed on November 15, 2004.Google Scholar
  32. 56.
    Jeff Eckhoff and Mark Siebert, “Group Fights Anti-War Inquiry,” Des Moines Register, February 7, 2004, A1. Monica Davey, “Subpoenas on Antiwar Protest Are Dropped,” New York Times, February 11, 2004, A18.Google Scholar
  33. 57.
    Louis Fisher, Constitutional Conflicts between Congress and the President, 4th ed. (Lawrence, KS:University Press of Kansas, 1997); William Gwyn, The Meaning of the Separation of Powers (New Orleans:Tulane Studies in Political Science, 1964). For a discussion of the shared aspects of separation of powers, see Fisher, Constitutional Conflicts between Congress and the President; Gwyn, “The American Constitutional Tradition of Shared and Separated Powers:The Indeterminacy of the Separation of Powers in the Age of the Framers,” 30 (1989) William & Mary Law Review, 263; and Laurence H. Tribe, American Constitutional Law, vol. 1, 3rd ed. (New York:Foundation Press, 2000).Google Scholar
  34. 58.
    See, George W. Bush, Memorandum for the attorney general. Subject:Congressional subpoena for executive branch documents, White House Office of the Press Secretary, December 12, 2001.Google Scholar
  35. 59.
    See Baker, “The Impact of Antiterrorism Policies,” pp. 765–8.Google Scholar
  36. 66.
    Jim Oliphant, “Justice During Wartime:Order on Military Trials Final Piece of Sept. 11 Response,” Legal Times, November 19, 2001, 1. The office of White House Counsel Alberto Gonzales was the primary draftsman of the order. See Elisabeth Bumiller, “The Office Where Law Meets War,” New York Times, September 23, 2002, A22.Google Scholar
  37. 72.
    Carol Leonnig, “U.S. Stymies Detainee Access Despite Ruling, Lawyers Say,” Washington Post, October 14, 2004, A11.Google Scholar
  38. 74.
    Carol Leonnig, “Judge Rules Detainee Tribunals Illegal,” Washington Post, February 1, 2005, A1.Google Scholar
  39. 75.
    Schlesinger, The Imperial Presidency (Italics in the original), x.Google Scholar
  40. 76.
    Ramsey Clark, “Excerpts of an Address before the American Judicature Society,” Honolulu, Hawaii, August 9, 1967, Department of Justice Press Release, Papers of Ramsey Clark, Box 35, “D.C./Governors’ Conference— Midyear,” LBJ Library, University of Texas at Austin.Google Scholar

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© Michael A. Genovese and Lori Cox Han 2006

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  • Nancy V. Baker

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