Philadelphia Daily News: When prez's aides Just Say No
By BERNARD I. FINEL
ON SEPT. 21, 1970, the Middle East almost erupted in all-out conflict.
Jordan’s moves to reduce the power of Palestinian forces had provoked a Syrian incursion.
Israel stood ready to intervene militarily, ensuring a dramatic escalation of the conflict.
The implications stretched beyond the Middle East. Israel’s U.S. ambassador, Yitzhak Rabin, contacted the White House shortly after 5 that morning seeking a U.S. response to a potential invasion by Israel.
In his memoirs, National Security Adviser Henry Kissinger gives a dramatic account of what happened next.
Kissinger conferred with President Nixon, who quickly decided to support an Israeli intervention. Kissinger urged a more thorough review, including a consultation with Secretary of Defense Melvin Laird and Secretary of State William Rogers. But Nixon was adamant, “I have decided it. Don’t ask anyone else. Tell him ‘go.’ “
Kissinger’s response: “I was not about to let the President run the risk of a major confrontation with the Soviet Union without consulting his senior advisors . . . I owed it to Nixon to check with Rogers and Laird.”
Ultimately, this consultation produced a more cautious response.
Israel held off on using ground forces. Syria withdrew. The conflict de-escalated.
Kissinger’s response was an example of a tremendously important and undervalued check on presidential power.
A president may be “the decider,” but in the end his decisions are subject to implementation by subordinates whose actions are shaped by their decency and professionalism.
Kissinger’s refusal to follow Nixon’s ill-considered initial response was not insubordination. It was a deeper form of loyalty – “I owed it to Nixon” – bound up in his sense of his professional obligation as coordinator of the national security process.
Kissinger could be self-serving and manipulative, but in this case he showed himself to be selfless public servant.
In the recent past, we seem to have lost this sense of a president as a fallible public servant served by honorable professionals duty-bound to oppose a rash or unlawful decision.
Instead, we’ve come to see the president as a figure endowed by virtue of national elections with some sort of unique insight and wisdom, in a sense existing above the law.
In the last administration, lawyers like Alberto Gonzalez, John Yoo and Jay Bybee signed off on badly argued legal briefs, providing the White House with cover for clearly illegal acts. While Gonzalez now finds himself out of work, Yoo remains a tenured professor and frequent public speaker, and Bybee is a federal judge on the 9th Circuit.
Worse still is the lack of professionalism shown by some senior military officers. The case of Gen. Michael Hayden is particularly problematic. Hayden, while a serving member of the armed forces, failed to refuse an unambiguously unlawful order. The domestic espionage program he oversaw as director of the National Security Agency for roughly 18 months after 9/11 until changes to the program were made after the infamous midnight meeting in Attorney General John Ashcroft’s hospital room was clearly unlawful.
Hayden has argued that he relied upon White House guidance in ignoring statutory requirements. But absolving military officers of their obligation to resist unlawful orders simply because their superior assures them the order is legal makes the obligation meaningless.
Hayden ought to have been subject to a court-martial. Instead, he was promoted to director of the CIA.
Presidents can make mistakes. They overreact, get angry, suffer from depression, become overly reliant on a single adviser, behave rashly. Subordinates using their judgment and professionalism can mitigate some of the consequences of presidential fallibility – sometimes with crucially important results.
BUT WE can only recover this powerful constraint on executive power if there are consequences for senior officials who ignore their professional obligations. An under-discussed reason to consider a truth commission to investigate the conduct of the Bush administration would be to shed light on the failure of some senior officials to live up to their ethical and legal responsibilities as lawyers, officers and public servants.
Unfortunately, in recent years, we’ve taken to rewarding blind obedience over principled personal responsibility. In doing so, we’ve eroded a key check and balance to abuse of presidential power. *
Bernard I. Finel is senior fellow at the American Security Project.
http://www.philly.com/philly/opinion/20090504_When_prez_s_aides_Just_Say_No.html
