February 12, 2008 4:47 PM

Twelve Steps to Restore Checks & Balances

On a day when the Legislative Branch has effectively given up its responsibility of oversight and sanctioned the worst tendencies of our current Executive Branch, it's important to remember that there are still steps we can take in the other direction. Aziz Huq, the Director of the Liberty and National Security Project at one of our favorite progressive allies, the Brennan Center for Justice, outlines some possible options.

America's system of checks and balances is out of joint. Recognizing that people are "not angels," the Constitution's Framers crafted a system of government designed to "control itself." They installed three co-equal branches - Congress, the executive, the federal judiciary - to watch over each other and to guard against both overreaching harmful to the people and unwise acts arrived at without careful consideration. Setting each institution against each other in this way, the Framers hoped "[a]mbition [would] be made to counteract ambition." The resulting system of checks and balances would be "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other."

Invoking "monarchical" prerogatives, this Administration has applied a theory first articulated by then-Congressman Richard Cheney in the 1987 congressional minority report on the Iran-Contra scandal. Coordinated by Cheney, the minority report rejected congressional checks when the executive claims to act in the name of "national security." It repudiated as a "fallacy" the Constitution's core notion that government power, republican or kingly, risks abuse. It scorned long-standing structures intended to check that power, and warned that the presidency would have to exercise "monarchical" powers should Congress try to check it.

This theory has led to a host of actions of that have gone far beyond the bounds of the presidency. Torture. Warrantless wiretapping. Secret legal opinions. Rendition. Indefinite detention. Violations of the Geneva Conventions. The list goes on, yet Congress is meek about asserting its own authority and has been relegated to the constitutional margin along with our federal courts.

The result: power - legislative, executive, and judicial - is now concentrated in the executive branch. And a frightening idea decisively rejected at America's birth - that a president, like a king, can do no wrong - has reemerged to justify excessive secrecy, disregard for federal and international law, and even torture. The separation of powers has always been vital to our national security because it augments accountability and promotes wise choices. Checks and balances are not a historical curiosity. They are imperative today.

What can be done to right the constitutional balance? In a new proposal issued by the Brennan Center for Justice at NYU School of Law - Twelve Steps to Restore Checks and Balances - we offer twelve specific things that can be done to revitalize our American government. Its recommendations aim at fidelity to the original Constitution's overarching design, in which each branch plays an active role in keeping the nation secure and free. The twelve steps would undo much damage that has been inflicted by six years of erratic, lawless unilateralism. They do not proscribe all detention, all surveillance, or all interrogation, but promote wise use of those powers.

The first part of our proposal are aimed as much at the current crop of presidential candidates as at the White House. The public, after all, has a right to know where its candidates stand. These include renouncing the theory of the monarchical presidency and the use of signing statements to circumvent the law, and disclosing past legal opinions that influence the use of national security powers.

The next steps demand legislative action. This requires political will on Congress's part, which has recently been wanting. These recommendations provide ways in which Congress can leverage even limited political openings to guard against abuse of national security powers. Most importantly, new devices, laws, and institutions will ensure that Congress and the public know what has been done, and is being done, behind closed doors.

To reassert itself, our next steps call on Congress to stop U.S. torture, restore habeas corpus, pass new laws to limit the state secrets privilege and reduce excessive secrecy, regulate the invocation of executive privilege, strengthen oversight of intelligence activities and the inspector general system, reform the Office of Legal Counsel and create a new Church Committee to conduct a thorough accounting of national security policy and its systemic flaws.

Together, such measures would help ensure that Congress can provide the proper kind of oversight, not foolishly capitulating to poorly considered "innovations" such as the Protect America Act.

But new commitments and reforms are only as durable as the people they serve. In 1792, James Madison, the great champion of checks and balances, observed that such checks "are neither the sole nor the chief palladium of constitutional liberty. The People, who are the authors of this blessing, must also be its guardians." Madison remains correct.

These measures in part ensure that the American people understand what is being done in their name. But they depend on the continued will of the people who must be committed to protecting and upholding the Constitution, even in times of uncertainty.

Aziz Huq is the Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law and the co-author of the forthcoming paperback edition of Unchecked and Unbalanced: Presidential Power in a Time of Terror. The complete Twelve Steps to Restore Checks and Balances can be found here.