Book Review: The National Security Presidency – A Primer with Provocation (Reviewing Denvir’s Freeing Speech: The Constitutional War Over National Security)
Freeing Speech: The Constitutional War Over National Security, by John Denvir. New York University Press, 2010, Pp. 189 pp., $45 (cloth).
If the volume of political dissent alone were the measure of a healthy democracy, then America has been thriving since 9/11. The roaring avalanche of critical perspectives on the “war on terrorism”— propelled by thousands of books, law review and political journal essays, and newspaper and magazine articles – might suggest that the state of our political discourse and of the constitutional order that it supports is fundamentally sound. Ironically, of course, this outpouring aims largely to prove the opposite: that unfounded claims of inherent executive authority to preserve national security imperil our free-speech system and tip the delicate balance of our tri-partite federal governmental powers.
To this resounding chorus of critique, John Denvir, the Research Professor of Constitutional Policy at the University of San Francisco School of Law, now adds his voice. Freeing Speech introduces Denvir’s concept of a “National Security Presidency” (NSP), explores several interrelated factors that have given rise to the phenomenon, and suggests political and judicial reforms as counter-forces to the excesses of the NSP. In all of this, Denvir hopes to contribute to a revitalization of democratic debate, a reanimation of political activism, a reaffirmation of constitutional safeguards – and, ultimately, to the reactivation of legislative and judicial checks on presidential overreaching in the name of national security.
Freeing Speech organizes its arguments by way of a triadic structure. After an introduction that discusses competing notions of the term “constitution,” the first three chapters of the book address the “problem” – that is, the complex of policies, practices, and pressures that have enabled Executive claims of extraordinary powers in the realm of national security. The final three chapters of the book then present the “solution” – that is, the reconfiguration of legislative and judicial responsibilities to secure the limitation of presidential power and the expansion of democratic discourse. As Denvir succinctly puts it: “The primary problem is the president’s ability to dominate debate on national security; the solution is a First Amendment that makes sure that opposition voices are heard.”
The most potent vision of the NSP, as Denvir outlines it in Chapter 1, holds that the Executive has an inherent and largely unchecked constitutional duty to protect American lives and interests. Whether or not Congress sanctions his conduct either ex ante or ex post facto, the president may discharge his constitutional duty by acting on his own authority, given that time may be of the essence or secret information may not be disclosed. Moreover, neither legislative mandates nor individual constitutional rights should stand in his way. This NSP vision evolved through both Republican and Democratic administrations, beginning with Abraham Lincoln’s exercise of “emergency war powers” in the wake of the firing on Fort Sumter and continuing through the decades until its fullest blossoming in George W. Bush’s initiation of the current “war on terrorism.” Assured by the Justice Department’s Office of Legal Counsel that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of force to be used in response, or the method, timing, and nature of the response,” Bush claimed powers to singlehandedly terminate treaty obligations, to employ “aggressive” interrogation techniques on suspected terrorists, and to issue “signing statements” authorizing underenforcement of legislative provisions that infringed on his constitutional authority, among other actions.
Although the Supreme Court has never definitively endorsed the NSP vision, Denvir bemoans the fact that the Court has never unambiguously rejected the Executive’s claim to inherent constitutional authority either. Moreover, although the Constitution’s text gives no explicit support for the NSP vision, the federal judiciary’s refusal to hear many cases involving controversial claims of presidential power, under jurisdictional doctrines such as standing, has enabled the NSP to become part of our “de facto Constitution.”
“The Manufacture of Consent,” as Chapter 2 is aptly named, connects the ascent of the NSP to the escalating power of presidential speech in the area of national security. Since the days of Theodore Roosevelt’s exploitation of the “bully pulpit” and his cousin Franklin’s use of “fireside chats,” presidential rhetoric has become a staple of war propaganda and a support for expansive exercises of national security powers. Not only does the president enjoy unequaled access to the mass media, but his symbolic position as our national leader lends greater authority to information on national security that his administration largely controls. As the example of the current Iraq war suggests, the NSP may attain its objectives by misleading the polity, overwhelming any contradictory evidence, and drowning out oppositional voices. The crucial issue, then, is to balance meaningful opportunities for democratic dissent against appropriate presidential persuasion regarding national security concerns.
The first triad concludes with a brief historical account of the Supreme Court’s development of the modern First Amendment. Today’s conservative high court justices have incrementally dismantled certain tenets of the free speech legacy of the Warren Court – what with their more than occasional disfavor for overbreadth challenges, their approval of public-forum restrictions via “content-neutral” time, place, and manner regulations, and the Robert Court’s more recent handiwork in Holder, Attorney General v. Humanitarian Law Project (2010), among other doctrinal changes. In the end, a weakened First Amendment undercuts the potential for robust and wide-open public debate to effectively challenge a virulent vision of presidential power in national security affairs.
In his second triad of chapters, Denvir lays out his recommendations for a reinvigorated free speech culture that might foster oppositional voices to challenge the NSP. The first two chapters argue for substantial reforms to existing First Amendment doctrines, and the third chapter calls out the federal judiciary for failing to check extravagant Executive claims of national security powers.
The breadth and strength of government control over public information, and the current First Amendment regime that permits such control, are the foci of Chapter 4. Denvir canvasses everything from administrative agency obstruction of Freedom of Information Act requests; to the president’s invocation of the state-secrets and executive privilege doctrines in litigation contesting its national security measures; to the deficits of “pool reporting” and “embedded reporting” systems for press access to war zones; and to the absence of federal constitutional or statutory privileges for reporters who safeguard the confidentiality of their sources. Unless these and other issues are resolved, Denvir holds, the First Amendment’s promise of a public’s “right to know” can never be realized.
Activist groups nurture new political ideas and social structures. From yesterday’s abolitionists and suffragettes to today’s environmentalists and human rights advocates, powerful dissenters have changed the face of American law and society. Given the modern contours of free-speech jurisprudence, however, Denvir wonders whether civil protest itself is an endangered species. Chapter 5 identifies several culprits: among them, the Supreme Court’s “public forum” doctrine and its “time, place, and manner” exceptions, which often frustrate effective public demonstrations, and the government’s “national security investigations” of dissident groups without any evidence of criminal activity. Here too, the author craves a reformed First Amendment that would shore up the rights of dissenters against regulatory impediments and investigatory abuses.
Finally, a heavy hammer slams down on the “failures of the Supreme Court to fulfill its duty to (in John Marshall’s words) ‘say what the law is.’” Chapter 6 highlights two such failures: the Court’s perennial dodging of the NSP claim of inherent power to use military force, and its development of jurisdictional and justiciability barriers, such as the standing and political question doctrines, to avoid adjudication of the NSP’s alleged constitutional and statutory violations. Not only is the federal judiciary shirking its responsibility to expound on the meaning of the Constitution and federal laws, but it now allows the Executive to act functionally as the judge of its own cause in the national security context.
The strongest attribute of Freeing Speech is its broad-based approach. It offers a holistic perspective (somewhat akin to the “intersectionality” preferred by critical legal studies scholars) to explore the dynamics of multiple forces that constitute the NSP. Thus, the book teases out the interrelationships playing among the president’s growing claims of independent constitutional authority as Executive and Commander-in-Chief, the domination of presidential speech in our modern mass media culture, the First Amendment’s recent retrenchments on the potential for informed and robust public debate, and other factors.
Because of its approach, this work may be particularly instructive for undergraduates in political science departments, law students in specialized seminars on free speech or presidential war powers, and serious lay readers who hope for a synthetic overview on our current state of executive overreaching. For them, Denvir’s clear and coherent writing style, infused with an admirable degree of rhetorical elegance, adds to the material’s accessibility. By that measure, it is a useful and inviting work.
The book’s strength for some, however, may prove to be its weakness for others. Knowledgeable readers, and certainly constitutional law experts, might view the book as a mile wide and a foot deep, and thus operating at too shallow a level of abstraction. To them, Freeing Speech could appear largely as a primer.
After all, the major topics of each chapter have been more thoroughly explored and deeply analyzed in other, more narrowly focused books. For only a few examples, the history of the NSP’s evolution (the subject of Chapter 1) has been dealt with more searchingly by Louis Fisher in his plethora of writings on the presidential war powers, as well as by Christopher May [In the Name of War (Harvard U. Press, 1989)] and Edward Keynes [Undeclared War (Penn State Press, 1982)], among others. The desecration of First Amendment rights and other civil liberties by legislative mandates and judicial doctrines that are influenced by national security concerns (the subjects of Chapters 2, 3, and 5) is scrutinized more rigorously by Geoffrey Stone [Perilous Times (Norton, 2004)] and by Jarret Lovell [Crimes of Dissent (New York U. Press, 2009)], and much more theoretically by the contributors to The Constitution in Wartime [Mark Tushnet, ed., Duke U. Press, 2005]. And the federal judiciary’s abdication of its duty of constitutional exposition via the standing doctrine and other prudential limitations is more systematically described and exhaustively critiqued in the classic articles by Cass Sunstein [“Standing and the Privatization of Public Law,” 88 Columbia Law Review 1432 (1988)] and Robert Pushaw, Jr. [“Article III’s Case/Controversy Distinction,” 69 Notre Dame 447 (1994)], among others.
Yet there is more here: For sophisticated readers may well find value in the book’s presentation of provocative recommendations for legislative and judicial reforms to curb the NSP. Although the proposals are typically sketched out rather than developed fully, the expert might be intrigued enough to delve into their interstices, which can be quite thought-provoking.
For only one example, Denvir advocates the promulgation of a federal “disinformation felony.” Given that presidents and their surrogates sometimes purposefully mislead the public on national security matters, he posits: “Congress should make it a felony for the president, the vice-president, and cabinet-level officials to make public false statements on material national security issues with knowledge or reckless disregard of their falsity.” (p. 54) In this regard, the book leaves relatively thorny questions to be explored by other scholars. Among them: What is the source of Congress’s constitutional power to enact such a statute? Would the statute violate the constitutional doctrine of executive immunity? Can the First Amendment’s intolerance for false statements in the context of defamation or securities law be extended this far?
Freeing Speech is peppered with more tantalizing propositions — congressional grants of press rights to access war zones, judicial reinterpretation of First Amendment rights against national security investigations, the Supreme Court’s rejection of “the myth of independent presidential power,” and more. Here too, Denvir provides the broad outlines for his suggestions without supplying much in the realm of operational details and pragmatics. This tack may understandably frustrate some. Others, however, may be inspired to expand upon his preliminary ideas.
In the end, it is up to you to judge whether and how the First Amendment can realistically be bolstered against the machinations of the Executive. In that regard, this book stands to help inform all of us as to what that verdict should be.
David Skover is the Fredric C. Tausend Professor of Law at Seattle University School of Law. He is the co-author, with Ron Collins, of The Trials of Lenny Bruce (2002) and of On Dissent (forthcoming, Cambridge University Press).