Janine Wedel - Shadow Elite - How the World's New Power Brokers Undermine Democracy, Government, and the Free Market

The Project on Government Oversight provides excellent analysis of the problem of service contractor personal conflicts of interest (see, for example, The Project On Government Oversight, “Strong, Consistent Federal Contractor Conflict of Interest Regulations Needed,” July 17, 2008, http://www.pogo.org/pogo-files/letters/contract-oversight/co-fcm-20080717.html).

71. For William Studerman and Booz Allen vice presidents, see Tim Shorrock, “The Spy Who Billed Me,” Mother Jones , January/February 2005, http://www.motherjones.com/politics/2005/01/spy-who-billed-me. See also Booz Allen’s Web site, at http://www.boozallen.com/about/people. For SAIC board members, see Shane, “U.S.: Uncle Sam Keeps SAIC On Call,” p. 1A; and Siobhan Gorman, “Little-known Contractor Has Close Ties with Staff of NSA,” Baltimore Sun , January 29, 2006, Telegraph, p. A13.

72. Intelligence expert Steven Aftergood, quoted in Tim Shorrock, “Former High-Ranking Bush Officials Enjoy War Profits,” Salon.com, May 29, 2008, http://www.salon.com/news/excerpt/2008/05/29/spies_for_hire/index1.html.

73. For additional material on privatization, waning institutional loyalty, and the relationship between them, see Cullen Murphy, Are We Rome? The Fall of an Empire and the Fate of America (New York: Houghton Mifflin Company, 2008), especially chapter 3.

74. With regard to enhanced U.S. executive power in the twentieth century, see James P. Pfiffner, The Modern Presidency , 5th ed. (Belmont, CA: Thompson Wadsworth, 2007), p. 141.

With respect to the growth of executive power via the adoption of international security law, see Kim Lane Scheppele, The International State of Emergency , forthcoming.

John L. Comaroff and Jean Comaroff discuss “law laundering,” a form of licensed corruption that can be used to bolster executive power (John L. Comaroff and Jean Comaroff, “Introduction,” Law and Disorder in the Postcolony , John L. Comaroff and Jean Comaroff, eds. [Chicago, IL: University of Chicago Press, 2006].)

William G. Howell lays out the unilateral tools available for presidents. William G. Howell, “Unilateral Powers: A Brief Overview,” Understanding the Presidency , 4th ed., James P. Pfiffner and Roger Davidson, eds. (New York: Person-Longman, 2007), pp. 367–382. With regard to signing statements, see, for example, author interview with James Pfiffner, September 5, 2007; and James P. Pfiffner, Power Play: The Bush Administration and the Constitution (Washington, DC: Brookings, 2008).

75. With regard to Reagan’s use of signing statements, see James P. Pfiffner, The Modern Presidency , p. 157. With the Carter and Ford presidencies, issuing such statements gained recognition as a way of putting on record reservations about the constitutionality of a particular law; see also Pfiffner, Power Play .

76. On constitutional challenges issued via signing statements by Presidents Carter, Bush I, and Clinton, see Pfiffner, Power Play , pp. 194–202. The number of constitutional challenges contained in signing statements rose from 24 issued by Carter to 71 by Reagan and 146 by George H. W. Bush, declined to 105 under Clinton, and jumped to 1,168 (as of October 15, 2008) under George W. Bush. Christopher S. Kelley, “‘Faithfully Executing’ and ‘Taking Care’—The Unitary Executive and the Presidential Signing Statement,” paper presented at the American Political Science Association annual convention, 2002. The number of Bush II constitutional challenges is from the Web site of Christopher S. Kelley, a political scientist who writes about presidential power. He maintained an up-to-date tally of the signing statements and provisions of laws challenged by Bush II, at http://www.users.muohio.edu/kelleycs/. See also Charlie Savage, “Obama Looks to Limit Impact of Tactic Bush Used to Sidestep New Laws, New York Times , March 10, 2009, http://www.nytimes.com/2009/03/10/us/politics/10signing.html (accessed 3/13/2009).

With regard to Bush II’s use of signing statements, as Pfiffner puts it, Bush II has employed signing statements “to assert the unilateral and unreviewable right of the executive to choose which laws to enforce and which to ignore.” In issuing signing statements, Bush signaled his lack of obligation to adhere to certain aspects of laws that are of great consequence to the nation. Bush used signing statements both to effectively veto provisions of laws by simply not enforcing them and to decline to provide information to Congress despite laws mandating that the executive branch do so (Pfiffner, The Modern Presidency , p. 160). Bush, among other things, threatened to ignore laws that protect whistle-blowers, put restrictions on the congressionally mandated inspectors general who oversee government work, and—most controversially—altered the McCain amendment of 2005 intended to curb the exercise of torture. See, for example, Elizabeth Drew, “Power Grab,” The New York Review of Books 53, no. 11 (June 22, 2006), http://www.nybooks.com/articles/19092. Bush also issued signing statements that allowed him to sidestep providing information to Congress. For example, in December 2004, Bush signed a law saying that, when requested, scientific information from government researchers and scientists should be given to Congress “uncensored and without delay.” However, Bush later wrote in a signing statement that he could order researchers to withhold any information that he deemed might impair U.S. foreign relations or national security. See Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown and Company, 2007) p. 238–239. With regard to 9/11 as justification, see Pfiffner, The Modern Presidency , p. 159–160. In Takeover , Charlie Savage writes that President George W. Bush’s legal team has used signing statements “as something better than a veto—something close to a line-item veto.” In 1998 the Supreme Court ruled that line-item vetoes, even when approved by Congress, are unconstitutional. See Savage, Takeover , p. 231.

77. The American Bar Association panel made specific recommendations to both the president and the Congress. As ABA president Karen Mathis stated in her testimony before the House Judiciary Committee, “James Madison said it best: ‘The preservation of liberty requires the three great departments of power should be separate and distinct.’” Statement of Karen J. Mathis, President of the American Bar Association before the Committee on the Judiciary of the U.S. House of Representatives concerning Presidential Signing Statements, January 31, 2007, p. 6, http://www.abanet.org/poladv/letters/antiterror/2007jan31_signingstmts_t.pdf.

78. The Bush administration proposed new pay and personnel rules pertaining to how employees are compensated, hired, promoted, and disciplined for the 850,000 civil servants in the departments of Defense and Homeland Security, which account for almost half of the federal workforce (Stephen Barr, “It Could Be Auld Lang Syne For Annual Pay Raises,” Washington Post , January 1, 2006, p. C02, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/31/AR2005123100867_pf.html). Unions in both departments contested aspects of the new rules (see, for example, Stephen Barr and Christopher Lee, “Director of Civil Service Resigns: James Oversaw Key Rule Changes,” Washington Post , January 11, 2005, p. A13, http://www.washingtonpost.com/wp-dyn/articles/A63283-2005Jan10.html). In the end, these rules were put into effect on a limited basis only: for a fraction of the DOD workforce and for a short time for the DHS workforce (author’s conversation with John Threlkeld, AFGE Legislative Representative, American Federation of Government Employees, March 19, 2008). The Bush Administration proposed to extend the Defense and Homeland Security pay-for-performance systems to a much larger portion of federal employees through the “Working for America Act,” which was to do away with the General Schedule by 2010 (Stephen Barr, “Labor Keeps Its Guard Up Against Efforts to Change Workplace Rules,” Washington Post , November 8, 2005, p. B02, http://www.washingtonpost.com/wp-dyn/content/article/2005/11/07/AR2005110701401.html, and Karen Rutzkik, “Administration Continues Quest to Tie Pay to Performance Across Government,” Government Executive , July 19, 2005, http://www.govexec.com/dailyfed/0705/071905r1.htm). In 2006 the General Schedule applied to some 1.8 million federal employees (Barr, “It Could Be Auld Lang Syne”). However, some of the pay-for-performance standards for Defense and Homeland Security were struck down in U.S. District Court. (See, for example: http://www.govexec.com/dailyfed/0805/081705r1.htm.)