LIKE ONE HALF of a vaudeville team, Checks is hard put to get employment anymore without his old partner, Balances. You book them as a single act. Together, they almost are the Constitution, according to modern explicators. We congratulate our-selves on what, because of interposing Cs and Bs, our government cannot do. We boast of its talent for stalling. The system of checks and balances is a clever device for limiting power, dividing responsibility and inhibiting actions by a single part of the government.
Yet the greatest power in the world -- power to destroy that world -- is not hedged about with constitutional restrictions. The president has a monopoly on the decision to release nuclear weapons. Neither Congress nor the Supreme Court can retard or scrutinize that power if the president deems their use necessary. The president would be acting under his authority to repel sudden attack -- employing what Richard Barnet of the Institute for Policy Studies calls, with anticipatory officialese, "anticipatory retaliation." The massiveness of presumed external threat precludes the luxury of internal challenge or self-correction. Constitutional machinery will, at that point, be irrelevant.
But, at that point, is not everything but the threat irrelevant? In such a case, all bets would be off. Constitutional niceties would be the least of our concerns when many things besides the Constitution -- including the world -- might not be working much longer. We cannot judge our everyday government in terms of Doomsday.
Yet the shadow of Doomsday has darkened everyday government. President Roosevelt built and President Truman dropped the first atom bombs by their wartime authority as commander in chief. But the discipline of secrecy adopted in that period of emergency has been extended and normalized, like the office of commander in chief, into our half-war time of global conflict. Keeping our nuclear secrets was a principal concern of the security program Truman initiated in 1947 -- a regime in which power was symbolized by graduated "clearances" to progressively "classified" material; in which keeping ordinary citizens from such arcana was a constant self-policing task; in which an attorney general's list created whole categories of "un-American" citizens; and in which the president had a secret army, the CIA, for use as his preventer of nuclear conflicts by preemptive intelligence and subversive feats.
The CIA is an unconstitutional body. It evades the provision, in Article I, that "a regular statement and account of the receipts and expenditures of all public money shall be published from time to time." (From one time to the next time means continually, without a gap, as in the reporting requirement of the president.) Reporting in secret to a few select members of Congress is not "publishing"; and the approximate sums smuggled into the defense budget do not constitute a "regular statement and account" -- not the kind, for instance, that the IRS demands of citizens.
Thus the government is not accountable to its citizens, while the citizens have to be accountable to the government -- a reversal of the order spelled out by the framers of the Constitution. Yet how, in our world, could it be otherwise? We cannot let the public scrutinize things for which it lacks the proper clearance; and telling what the CIA does -- by showing how it spent its money -- goes against the whole reason for having a CIA, which is to act in the dark. And such actions are required by our quasi-war status.
In time of war, constitutional liberties are regularly suspended or interrupted. Manpower and resources are commandeered for the national need. Censorship is imposed. War having been declared, the office of commander in chief expands with the growing military forces over whom the president exercises that office. With a return to peace, the secrecy of censorship is lifted, resources are returned to private disposal, and the commander in chief has military authority over a dwindling number of citizens still under arms.
Yet that is not what happened after World War II. War measures were partially retained or reactivated -- which means that the Constitution was only partially restored. Much of the government's activity would now be beyond the ordinary citizen's scrutiny. Its actions could be justified, not by accountability to an informed public, but only by access to information from which the public (for its own good) must be excluded. Undeclared wars would be waged by the commander in chief, without the consent (or, at times, the knowledge) of Congress. The office of commander in chief became the ordinary diplomatic stance of the president. Loyalty to the commander in chief was treated as a duty of all citizens in peacetime, not simply that of a soldier in war. Continual arming, and guarding of our arms, was a form of deterrent warfare that might become, at any moment, actual warfare. The nation was made up of "minutemen" on standby.
Quasi-soldiers do not often treat their highest officer the way advocates of the Constitution envisioned that citizens would treat the president and other public officials. We hear a good deal about distrust of power and suspicion of officeholders in the arguments for ratification. James Wilson, for instance, the principal figure in Pennsylvania's ratification, answered fears of the single executive by saying the president would be exposed and vulnerable. The single executive's responsibility is not diffused, as it would be in an executive council. His peril is the pledge of our safety, since, in Wilson's words, he is "conspicuously held up to the view and examination of the public . . . Our first executive is not obnubilated behind the mysterious obscurity of counselors." He who stands alone will easily fall. The citizens will be quick to punish offenses so obvious to their gaze. "The executive power," Wilson said, "is better to be trusted when it has no screen . . . The President cannot roll upon any other the weight of his criminality."
Only such arguments could justify the adoption of an executive office so startling in its powers as the Constitution proposed to the nation in 1787. The experience with so many royal governors during the colonial period had made Americans shy away from singular authority. The president of Congress during the Confederation period had only precarious tenure on a position of little leverage in itself. The Articles of Confederation provided that "no person be allowed to serve in the office of president more than one year in any term of three years."
By offering a plan for a president perpetually re-affirmable in continuous four-year terms, the Constitution raised the fears of elected monarchy in some, fears of the very plan Hamilton had espoused in the convention. Jefferson wrote from France that no president should be allowed more than one term. Wilson, who said the president would have a special bond with the people at large, combined the argument for efficiency through concentrated authority with his argument for vulnerability through concentration of responsibility. Any forfeiture of the popular trust would lead directly to impeachment. The president was denied that immunity the Constitution conferred on members of the Senate or House: "For any speech or debate in either House, they shall not be questioned in any other place." The president, Wilson argued, would be questioned for all his words and acts:
"The executive as well as the legislative power ought to be restrained. But there is a remarkable contrast between the proper modes of restraining them. The legislature, in order to be restrained, must be divided. The executive power, in order to be restrained, should be one. Unity in this department is at once a proof and an ingredient of safety and of energy in the operations of government."
Accountability to the public is the essence of the president's office in Wilson's profound argument on its authority and its responsibility. And exposure was the basis of accountability. The president's office was to be phototropic, living on the trust established by openness: "Appointments made and sanctioned in this highly respectable manner will, like a flagrant and beneficial atmosphere, diffuse sweetness."
Yet the modern presidency has become nyctitropic, turning toward the darkness, preferring covert actions, replacing accountability with deniability. The discipline of darkness that surrounds his most awesome power -- custody over nuclear weaponry -- sheds the reverse of an aura, a penumbra, on any actions that can be associated with "national security." That term, as Egil Krogh pleaded at his Watergate sentencing, tends to unstring the knees of citizens, making them fall down in genuflection. When we have given the president the power to blow up the world at his discretion, it seems captious to deny him the right to bomb Cambodia or Libya at will.
In the nyctitropic presidency, secrecy is a source of power as well as its symbol. The wartime justification of secrecy used to run this way: The citizens must be kept in the dark, as a necessary evil, in order to keep the enemy from knowing what one's country is doing and taking action on the basis of that knowledge. The modern presidency takes the old means and makes it the end: The citizens are kept in the dark about what the enemy already knows, lest the citizens take action to stop their own government from doing things they disapprove of. The Cambodians knew they were being bombed by the Nixon administration; the American Congress was deceived on that matter, not the Soviet Politburo. Fidel Castro knew of the assassination plots against him, but we did not -- which means that when Castro accepted missiles to put an end to the secret war against him, President Kennedy was lying to the world about the unprovoked placing of missiles, and Khrushchev was telling the truth about the provocations that had led to the crisis. The Soviets and the Cubans knew what Kennedy was still hiding from Americans (the existence of Operation Mongoose).
The president as commander in chief is not called to account -- indeed, cannot be, without disobedience in the militarized citizenry. Loyalty to him is the measure of "American" strength. Questioning him is weakening the country, which cannot "afford to see another presidency destroyed." Political scientist Aaron Wildavsky has even written: "Another effort to impeach or to force a president to resign, thus reversing the result of the election without recourse to the people, would create a crisis of legiti- macy." Impeachment may reverse the result of an election, but it hardly does so without resort to the people. It is a constitutional procedure, derived from the people's fundamental compact. Wildavsky must think the Constitution allows only one impeachment try per generation (or, perhaps, one per century).
Leonard Garment, who seems to specialize in protecting government officials from accountability, says that Watergate's evil legacy was a "prosecutorial ethic" in government. Here is the situation he denounces: "Watergate marked the beginning of an unprecedented attempt to root out evil and wrongdoing from American politics and to promote virtue and rectitude in the country's public life." We have traveled some distance from the days of the founders when the promotion of political virtue is called an evil outcome. The situation Garment describes sounds like the state Wilson thought he was setting up. The president, according to Wilson, "should be alike unfettered and unsheltered by counselors. No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to public view."
Impeachment is not a breakdown of the system. When presidents violate the Constitution, impeachment is the system at work. The unhealthy state is one in which presidents are no longer held accountable. An active citizenry demanding that an administration give an account of itself is the one requirement the framers made on the people. They did not expect the public at large to be loyal soldiers, obeying orders without question. In fact, a citizenry unwilling to impeach a president who has broken his oath to uphold the Constitution would be considered a corrupted citizenry by the framers, the one constitutional defect for which there is no cure. As Wilson put that condition: "For a people wanting to themselves, there is indeed no remedy in the political dispensary."
The president is not our "commander in chief" (unless we are all in the military forces). That is what George Washington taught us, by such emphasis on his civil authority and his citizen responsibility as president. He maintained the neutrality policy against great opposition, because he thought the young republic should not form its ethos under war conditions. We see the evil of that in the retention of a war mentality through our whole "postwar" period of the last 40 years. The president's authority to make decisions in the dark, to conduct a continual half-war on the verge of nuclear war or to let his subordinates do so is profoundly at odds with a Constitution based on constant scrutiny by, and accountability to, the citizens. The Constitution is being hollowed out by the very means we have adopted to protect "the free world." When the executive branch of the United States imitates the enemies of freedom by mining the harbors of nations with which we are not at war, then lies about that to Congress, then holds itself immune from popular judgment, the opposition to despotism has taken on the forms of despotism. This is not the kind of executive power the framers envisioned when they proposed -- with trepidation but with a corresponding determination -- to impose limits on all parts of the government, especially the presidency. ::