Author: David Skover

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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 “Problem”

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.

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