The danger of executive power grabs in times of crisis

Two decades of efforts to pare down big government in the United States were left in tatters just two weeks after the attack in New York and Washington on September 11, 2001. Advocates of restrained and limited government lament that proposals for new federal powers, new programmes, new spending to combat “terrorism” are rushing forward in Washington, while yesterday’s demands for budget restraint seem like anachronisms. Within hours after the attacks, the Bush administration and Congress approved a $40 billion spending bill, followed a few days later by an unprecedented $15 billion bale-out of US airlines. The Pentagon now wants $17 billion more for national defence and legislation has been introduced to provide $71 billion in tax-exempt bonds, loans and loan guarantees to Amtrak to build a nation-wide network of high-speed rails. The White House is creating an entirely new cabinet department entitled “The Office of Homeland Security” and proposals are erupting to give new powers to the Immigration and Naturalisation Service, the FBI, the Treasury Department and other departments and agencies.

White House spokesman, Ari Fleischer put this construction on it: “Proposals for expanding government must be viewed less from an ideological strain and more through a wartime approach to helping this nation through an emergency.”

Wars and crises have frequently led to the expansion of government power in general and the enhancement of US presidential powers in particular. Presidents Lincoln, Wilson and Roosevelt expanded previous White House authority to meet the demands of the American Civil War, World Wars I and II and the economic Depression. The US Supreme Court subsequently ruled some of their actions unconstitutional. Nonetheless, in later periods other incumbents used some of these actions as precedents for expanding their authority:

  • During the Civil War Abraham Lincoln imposed martial law on areas of the North sympathetic to the South, suspended habeas corpus (a constitutional protection for people who are arrested) and authorised secret military tribunals.
  • Lincoln also instituted the first military draft (conscription) in the US and the first federal income tax (later ruled unconstitutional).
  • Woodrow Wilson used administrative measures and broad congressional authorisation to command and control the economy to an unprecedented degree during World War 1. His administration seized and operated communications and transportation networks, fixed prices, managed production and distribution and controlled manufacturing plants and mines.
  • Civil liberties were curtailed by the Espionage Act, under which even peaceful protests against the wartime draft led to imprisonment.

    Franklin D. Roosevelt used the precedent set by Wilson to implement “New Deal” controls of the economy during the Depression. He also did the following:
  • Directed shipbuilding, mining, transportation and manufacturing.
  • Instituted comprehensive wage and price controls, rationed goods and made major changes to labour laws.
  • Forced 120 000 people of Japanese ancestry, including American citizens, Italian-Americans and resident aliens, into internment camps.

    The Bush administration is now seeking authority to collect vast amounts of information on terrorism suspects, although experts question how the data will be analysed. Aside from constitutional and ideological considerations, the ability to collect oceans of data is not necessarily matched by sufficient tools to sort and interpret it.

    The Bush administration’s anti-terrorism bill is said to contain the most sweeping expansion of government surveillance and investigative authority since the Cold War. It involves an increase in wiretaps, Internet monitoring and expanded tracking of students and immigrants.

    Even Attorney-General John Ashcroft has admitted that had the proposals now before lawmakers been in place previously, they might not have done anything to stop the attacks of September 11, 2001. Moreover, senior Justice Department officials say that there is some justifiable scepticism about the FBI’s ability to handle the massive amounts of information generated by the current terrorism investigation, let alone head off future attacks.

    In terms of the legislation now being proposed, FBI agents will have far greater leeway to search homes without informing the occupants, and immigrants or resident aliens could be jailed under more circumstances and for longer periods without having to be brought before a court. In addition, a 1978 anti-espionage law will be broadened to let the FBI use it against alleged terrorists. Furthermore, prohibitions on the CIA and the NSA sharing information with domestic law enforcement agencies or receiving it from them will be at least partially dismantled.

    Whilst this chronicles some of the infringements and abridgements of civil liberties and economic freedoms during crises in the United States, far greater abuses have been experienced in many other countries. These infringements are usually presented as being only temporary but necessary to solve an immediate and pressing problem. However, once introduced, they take decades to remove and, as the above record has shown, are often subsequently revived on grounds that some would consider spurious or unjustified.

    The world is entering a dangerous period, the most fearful part of which is likely to be the loss of hard-won human rights and civil liberties. Voter and civil society vigilance in containing the growth of government is therefore critically important right now.

    Source: Dr Brian Benfield is the Deputy Chairman of the Free Market Foundation. The views expressed in the article are the author's and are not necessarily shared by the members of the Foundation.

    FMF Feature / 16 October 2001 - Policy Bulletin / 15 September 2009
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