This month, I spoke at an event commemorating the 40th anniversary of the Watergate scandal with some of its survivors at the National Press Club. While much of the discussion looked back at the historic clash with President Nixon, I was struck by a different question: Who actually won? From unilateral military actions to warrantless surveillance that were key parts of the basis for Nixon's impending impeachment, the painful fact is that Barack Obama is the president that Nixon always wanted to be.
Four decades ago, Nixon was halted in his determined effort to create an "imperial presidency" with unilateral powers and privileges. In 2013, Obama wields those very same powers openly and without serious opposition. The success of Obama in acquiring the long-denied powers of Nixon is one of his most remarkable, if ignoble, accomplishments. Consider a few examples:
Nixon's use of warrantless surveillance led to the creation of a special court called the Foreign Intelligence Surveillance Court (FISA). But the reform turned out to be more form than substance. The secret court turned "probable cause" into a meaningless standard, virtually guaranteeing any surveillance the government wanted. After hundreds of thousands of applications over decades, only a couple have ever been denied.
Last month, the Supreme Court crushed any remaining illusions regarding FISA when it sided with the Obama administration in ruling that potential targets of such spying had to have proof they were spied upon before filing lawsuits, even if the government has declared such evidence to be secret. That's only the latest among dozens of lawsuits the administration has blocked while surveillance expands exponentially.
Unilateral military action
Nixon's impeachment included the charge that he evaded Congress' sole authority to declare war by invading Cambodia. In the Libyan "mission," Obama announced that only he had the inherent authority to decide what is a "war" and that so long as he called it something different, no congressional approval or even consultation was necessary. He proceeded to bomb a nation's capital, destroy military units and spend more than a billion dollars in support of one side in a civil war.
Nixon ordered a burglary to find evidence to use against Daniel Ellsberg, who gave the famed Pentagon Papers to the press, and later tried to imprison him. Ellsberg was later told of a secret plot by the White House "plumbers" to "incapacitate" him in a physical attack. It was a shocking revelation. That's nothing compared with Obama's assertion of the right to kill any U.S. citizen without a charge, let alone conviction, based on his sole authority. A recently leaked memo argues that the president has a right to kill a citizen even when he lacks "clear evidence (of) a specific attack" being planned.
Nixon was known for his attacks on whistle-blowers. He used the Espionage Act of 1917 to bring a rare criminal case against Ellsberg. Nixon was vilified for the abuse of the law. Obama has brought twice as many such prosecutions as all prior presidents combined. While refusing to prosecute anyone for actual torture, the Obama administration has prosecuted former CIA employee John Kiriakou for disclosing the torture program.
Other Nixonesque areas include Obama's overuse of classification laws and withholding material from Congress. There are even missing tapes. In the torture scandal, CIA officials admitted to destroying tapes that they feared could be used against them in criminal cases. Of course, Nixon had missing tapes, but Rose Mary Woods claimed to have erased them by mistake, as opposed to current officials who openly admit to intentional destruction.
Obama has not only openly asserted powers that were the grounds for Nixon's impeachment, but he has made many love him for it. More than any figure in history, Obama has been a disaster for the U.S. civil liberties movement. By coming out of the Democratic Party and assuming an iconic position, Obama has ripped the movement in half. Many Democrats and progressive activists find themselves unable to oppose Obama for the authoritarian powers he has assumed. It is not simply a case of personality trumping principle; it is a cult of personality.
Long after Watergate, not only has the presidency changed. We have changed. We have become accustomed to elements of a security state such as massive surveillance and executive authority without judicial oversight. We have finally answered a question left by Benjamin Franklin in 1787, when a Mrs. Powel confronted him after the Constitutional Convention and asked, "Well, Doctor, what have we got — a republic or a monarchy?" His chilling response: "A republic, if you can keep it."
We appear to have grown weary of the republic and traded it for promises of security from a shining political personality. Somewhere, Nixon must be wondering how it could have been this easy.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.