THE CASE AGAINST THOSE EXPANDING WHITE HOUSE POWERS
By Michiko Kakutani
New York Times
July 6, 2007
[Review of Unchecked and Unbalanced: Presidential Power in a Time of Terror by Frederick A.O. Schwarz Jr. and Aziz Z. Huq (New Press, 2007). 276 pages. $25.95.]
Days after 9/11, Bush administration lawyers began laying out a vision of sweeping executive power, designed to give the president authority, in the words of John C. Yoo, then deputy assistant attorney general, “to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters,” whether or not they can be linked to the specific terrorist incidents of Sept. 11. A Sept. 25, 2001, Justice Department memo declared that under the Constitution decisions regarding the “amount of military force to be used” in response to the terrorist threat, as well as “the method, timing, and nature of the response,” are “for the President alone to make.” And a January 2002 Justice Department memo argued that “customary international law has no binding legal effect on either the President or the military.”
In fact, as this important book, Unchecked and Unbalanced, points out, the Bush White House has repeatedly sought to expand its powers, often doing so in secret, while sidelining both Congress and the judiciary. President Bush secretly authorized the National Security Agency to eavesdrop without obtaining a court order on calls and e-mail messages sent from the United States to other countries. He has issued a steady stream of signing statements, signaling his intent not to comply with more than 750 provisions of laws concerning national security and disclosure, most notably one that questioned Congress’s authority to limit coercive interrogation tactics. And the administration has claimed that the president’s war powers give him the authority to detain people indefinitely and deny them access to lawyers and the courts, a policy that it would later be forced to modify in response to legal challenges.
In their chilling and timely book Frederick A. O. Schwarz Jr., senior counsel at the Brennan Center for Justice at the New York University School of Law, and Aziz Z. Huq, who directs the Liberty and National Security Project at the Brennan Center, argue that the Bush administration’s “monarchist claims of executive power” are “unprecedented on this side of the North Atlantic,” and that its “executive unilateralism not only undermines the delicate balance of our Constitution, but also lessens our human liberties and hurts vital counterterrorism campaigns” by undermining America’s moral authority and standing in the world.
Unchecked and Unbalanced contains little new reporting and is heavily indebted to the groundbreaking work of journalists like Jane Mayer of the New Yorker, James Risen and Eric Lichtblau of the New York Times, Dana Priest of the Washington Post and Charlie Savage of the Boston Globe. But the book serves as a valuable compendium and chronicle of the Bush administration’s aggressive efforts to expand the power of the executive branch, providing a detailed account of the unilateral actions it has taken on matters ranging from torture policy to domestic surveillance, and it is necessary reading for anyone interested in how those efforts by the Bush White House have tipped the constitutional system of checks and balances.
Mr. Schwarz was chief counsel for the Church Committee, which investigated executive branch overreaching in the mid=1970s, and he and Mr. Huq have done a powerful job of situating the actions of the current White House in perspective with the imperial presidency of Richard M. Nixon (who once declared that “when the president does it, that means that it is not illegal”). Equally devastating is their deconstruction of Bush administration lawyers’ efforts to assert a doctrine of unfettered presidential prerogative. They remind the reader that the founding fathers had “scant affection for strong executives” like England’s king, and they argue that many of the Bush White House’s claims are rooted in ideas “about the ‘divine’ right of kings” that “did not survive the English Civil War and the Glorious Revolution of 1688” and that certainly did not find their “way into our founding documents, the 1776 Declaration of Independence and the Constitution of 1787.”
Like many reporters Mr. Huq and Mr. Schwarz point out that expanded executive power was not a response to the terrorist attacks of 9/11 but the realization of a vision that conservatives like Dick Cheney had harbored since the 1970s, when they grew aggrieved over post-Watergate reforms that put the brakes on presidential power. That conservative backlash gained ground during the presidency of Ronald Reagan, and it was articulated in 1987 in the minority report of the Iran-contra committee. (The minority committee included Mr. Cheney and counted among its staff a young lawyer named David S. Addington, who years later in his role as the vice president’s legal counsel and chief of staff would play a major role in formulating the administration’s post-9/11 legal strategy.)
According to Mr. Huq and Mr. Schwarz the Iran-contra committee’s minority report asserted that “the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws,” and it also argued that “the President’s inherent powers” had historically allowed the executive to act “when Congress was silent, and even, in some cases, where Congress had prohibited an action.”
As Mr. Schwarz and Mr. Huq see it, the Bush White House’s “broader efforts to seize unfettered control of national security policy and to eliminate the checks and balances imposed by Congress and the courts” is exemplified by its post 9/11 decision “to ignore legal constraints on torture.” In February of 2002 President Bush signed an order declaring that “none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world,” a decision that would set the nation on a slippery slope toward torture, leading to the abuses at Abu Ghraib and other United States-run prisons.
In addition Justice Department lawyers undermined the spirit and purpose of anti-torture laws by promulgating a deliberately narrow definition of torture. One 2002 memo defined it as causing the sort of “intense pain or suffering” ordinarily associated “with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.”
Although significant public and Congressional attention was focused on the Patriot Act (which itself created an uproar over the threat it posed to Americans’ civil liberties), Mr. Huq and Mr. Schwarz write, “the official responses to the September 11, 2001, attacks largely took shape through under-the-radar executive orders” that not only excluded Congress from the debate but in many cases also circumvented the interagency policymaking process, cutting out experts from the State Department and members of the uniformed military.
For instance the authors observe that a presidential finding signed days after 9/11 gave the C.I.A. sweeping new powers to disrupt terrorist activity and permission to kill, capture, and detain members of Al Qaeda anywhere in the world: powers, in the view of some intelligence officers, that included the implicit authority to create black sites (secret detention facilities outside the United States, where terrorism suspects could be held beyond the oversight of the International Committee for the Red Cross).
Something similar occurred with President Bush’s signing of a 2002 presidential order authorizing N.S.A. surveillance in the homeland without a court-approved warrant, an order that effectively circumvented the Foreign Intelligence Surveillance Act, passed by Congress in 1978. Although briefings were provided to a handful of Congressional leaders, Mr. Schwarz and Mr. Huq report, those leaders were prohibited from saying anything about them to anyone, including other Intelligence Committee members, a stipulation that “gutted the possibility of effective oversight.”
“Making the executive supreme makes the nation no safer -- either from its enemies or its own worse impulses,” the authors conclude. “Indeed, the abiding genius of the Founding Generation was its rejection of the idea that unchecked unilateral power is ever properly vested in any one branch of government. Our government was framed ‘to control itself,’ as James Madison wrote in the Federalist Papers. ‘Ambition must be made to counteract ambition.’ Dividing powers between three branches, the Founders harnessed human passions in the cause of limited government. Madison, again writing in the Federalist Papers, provided the enduring explanation for this division of government: ‘The accumulation of all power, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’”
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