I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, December 17, 2005

Bush's unchecked Executive power v. the Founding principles of the U.S.

Underlying all of the excesses and abuses of executive power claimed by the Bush Administration is a theory of absolute, unchecked power vested in the Presidency which literally could not be any more at odds with the central, founding principles of this country.

As this morning’s New York Times analysis put it in describing the rationale behind the Adminstration's violations of the Foreign Intelligence Security Act, pursuant to which it has been secretly spying on the commuincations of American citizens without judicial warrants:

A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.

From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority.

As the Times reports, Bush's claim to absolute executive power has its origins principally in one document:

a Sept. 25, 2001, memorandum [by the Justice Department’s John Yoo] that said no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."

The notion that one of the three branches of our Government can claim power unchecked by the other two branches is precisely what the Founders sought, first and foremost, to preclude. And the fear that a U.S. President would attempt to seize power unchecked by the law or by the other branches – i.e., that the Executive would seize the powers of the British King – was the driving force behind the clear and numerous constitutional limitations placed on Executive power. It is these very limitations which the Bush Administration is claiming that it has the power to disregard because the need for enhanced national security in time of war vests the President with unchecked power.

But that theory of the Executive unconstrained by law is completely repulsive to the founding principles of the country, as well as to the promises made by the Founders in order to extract consent from a monarchy-fearing public to the creation of executive power vested in a single individual. The notion that all of that can be just whimsically tossed aside whenever the nation experiences external threats is as contrary to the country’s founding principles as it is dangerous.

It cannot be said that the Founders were unaware of the potential for national emergencies and external threats. They engaged in a war with the British which was at least as much of an existential threat to the Republic as those posed by 9/11 and related threats of Islamic extremism. Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.

Among recent Republican Administrations, this theory of the unchecked President is not new. Digby recalls Richard Nixon's endorsement of it, and the theory came to life in the Iran-Contra scandal, where the Reagan Administration unilaterally deemed it necessary to U.S. national security to arm the Nicaraguan contras and then asserted for itself the power to circumvent the law enacted by the Congress which prohibited exactly that.

But the situation we have now is far more egregious, and far more dangerous, because the Administration is not even bothering to pretend now (as the Reagan Administration at least did) that the Executive acts undertaken really did adhere to Congressional intent, or alternatively, to the extent that such acts violated Congressional mandates, the acts were simply the by-product of overzealous and rogue officials who broke the law without the knowledge or approval of President Reagan.

The Bush Administration’s position now is almost the opposite of that posture, in that the Administration is expressly claiming that the President does have the right to violate laws of Congress because his executive power is absolute and thus cannot be restricted by anything. And rather than applying this theory of unchecked executive power to a single case (as the Reagan Administration did in Iran-contra), the Bush Administration has arrogated unto itself this monarchical power as a general proposition, applicable to each and every issue which can be said to relate, however generally, to this undeclared "war" against terrorism.

This view of the Presidency – which now exists not just in odious theory but in real, live, breathing form vested in George Bush – is precisely what the monarchy-fearing Founders insisted should never occur and, with the enactment of the U.S. Constitution, would never occur.

This absolute power claimed and enthusiastically exercised by George Bush violates not just specific Constitutional limitations, but the core principles of the Constitution: that we are a nation of laws not men; that each branch shall be "co-equal" to the others and checked and limited by the other two; and that the people shall retain ultimate power by vesting in them the right to enact supreme laws through the Congress which shall bind all other citizens, including the President.

That the Bush Administration’s claim to unchecked and supra-legal Executive power is squarely inconsistent with basic constitutional principles is conclusively demonstrated by James Madison’s Federalist No. 48, which is devoted to the principle that liberty cannot be maintained unless each branch remains accountable and subordinate to the others:

It was shown in the last paper that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.

Similarly, Madison, in Federalist No. 51, defined the central objective for avoiding tyranny as ensuring that no branch be able to claim for itself powers which are absolute and unchecked by the other branches:

What expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . .

In particular, Madison emphasized in Federalist 51 that liberty could be preserved only if the laws enacted by the people through the Congress were supreme and universally binding:

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.

Hamilton made the same point in Federalist No. 73. where he emphasized:

"[t]he superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, . . . "

To the Founders, the defining characteristics of the tyrannical British King was that he possessed precisely those powers which the Constitution prohibits but which the Bush Administration is now claiming it can exercise. From Federalist 70:

In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred.

Based on the fear of such unchecked executive power, Federalist 69 emphasized that unlike the British King, who did possess the absolute power to nullify duly enacted laws , the sole power possessed by the President to negate a law enacted by the Congress -- including with regard to matters of national security and war -- is the President’s qualified (i.e., override-able) veto power:

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. . . .

The one [the American President] would have a qualified negative upon the acts of the legislative body; the other [the British King] has an absolute negative.
The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority.

An extremely potent demonstration that the Bush Administration’s claim to unchecked Executive Power is fundamentally inconsistent with the most basic constitutional safeguards comes from one of the unlikeliest corners – Antonin Scalia’s dissent in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004):

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime.

Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

Both the Bush Administration’s theory of its own unchecked power and its indiscriminate and aggressive use of that power to violate Congressional law contradicts every constitutional principle created to ensure that we do not live under unchecked Executive tyranny. If the President is allowed to get away with secretly decreeing that he can violate the law and then doing exactly that, then there really are no remaining checks on Executive power -- and we have, without hyperbole, arrived at the very definition of tyranny.

The country has, more or less with a quiet complacency, stood by while this Administration imprisoned American citizens with no due process, while the Administration sanctioned torture and then used it to extract "evidence" to justify those detentions, and while the Administration exploited the fear of terrorist acts to bestow onto itself unprecedented powers.

If the naked assertion of absolute power by the Bush Administration -- and the use of that power to eavesdrop on American citizens without any judicial review -- does not finally prompt the public regardless of partisan allegiance to take a stand against this undiluted claim to real tyrannical power, then it is impossible to imagine what would ever prompt such a stand.

UPDATE: The more one thinks about the fact that the New York Times was aware of this patently illegal behavior for a full year and concealed it from the public because the Administration told it keep quiet, the more disturbing that complicity becomes.

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