The Imperial Presidency

A couple of days ago, Dahlia Lithwick posed a question: Why does George W. Bush refuse to obey the law?

There are two explanations for the Bush administration's failure to stay within the boundaries of the legal structures for which it's bargained: One is that the administration believes it is fighting this war on its own; the courts, the Congress, and the American people are all standing in its way. The other is that the administration is convinced that none of our statutes or policies or systems will actually work in a pinch. Our laws aren't just broken. They are unfixable.

I think the first explanation could more bluntly be characterized this way: Pres. Bush and his top aides do not act in accordance with legal procedures because they do not feel they should have to. There is no other way to understand Alberto Gonzales' assertion on Monday that the Bush administration had considered going to Congress for the authority to do electronic surveillance on Americans without a court order, but decided not to do so because "we were advised [by unnamed members of Congress] that that was not something we could likely get" without the American people finding out about the program.

So they did it without telling Congress or the American people.

The day after Gonzales' statement, Dick Cheney said straight out that there should be no limits on presidential power in matters of national security.

Returning from a trip to the Middle East, Cheney said that threats facing the country required that the president's authority under the Constitution be "unimpaired."

Watergate and a lot of the things around Watergate and Vietnam, both during the 1970s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area," Cheney told reporters traveling with him on Air Force Two. "Especially in the day and age we live in ... the president of the United States needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy."

But "the day and age we live in" has very little to do with Cheney's belief that the Executive Branch should be able to make decisions about foreign policy, defense, the military, and intelligence-gathering at will, with no oversight and, indeed, without informing anybody. The beliefs that underlie Cheney's assertions have far more to do with power -- both for himself and for the office of the president -- than with national security.

Peter Baker and Jim VandeHei write in the WaPo that Dick Cheney's determination to strengthen the power of the presidency predates 9/11 by three decades.

Speaking with reporters traveling with him aboard Air Force Two to Oman, Cheney said the period after the Watergate scandal and Vietnam War proved to be "the nadir of the modern presidency in terms of authority and legitimacy" and harmed the chief executive's ability to lead in a complicated, dangerous era. "But I do think that to some extent now we've been able to restore the legitimate authority of the presidency."

For Cheney, the post-Watergate era was the formative experience shaping his understanding of executive power. As a young White House chief of staff for President Gerald R. Ford, he saw the Oval Office at its weakest point as Congress and the courts asserted themselves. But scholars such as Andrew Rudalevige, author of "The New Imperial Presidency," say the presidency had recovered long before Cheney returned to the White House in 2001. The War Powers Act, the legislative veto, the independent counsel statute and other legacies of the 1970s had all been discarded in one form or another.

"He's living in a time warp," said Bruce Fein, a constitutional lawyer and Reagan administration official. "The great irony is Bush inherited the strongest presidency of anyone since Franklin Roosevelt, and Cheney acts as if he's still under the constraints of 1973 or 1974."

Sen. John E. Sununu (R-N.H.) said: "The vice president may be the only person I know of that believes the executive has somehow lost power over the last 30 years."

Both the WaPo piece and an editorial in today's New York Times point out that reversing what George W. Bush and Dick Cheney view as a 30-year weakening of presidential power was a key goal for them when Bush ran for office in 2000.

The Times (hypocritically, given that it sat on the illegal spy program story for a year and then only published it because a new book by James Risen was about to break the news), calls the current administration "Mr. Cheney's imperial presidency":

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency -- from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. Most Americans looked at wrenching events like the Vietnam War, the Watergate scandal and the Iran-contra debacle and worried that the presidency had become too powerful, secretive and dismissive. Mr. Cheney looked at the same events and fretted that the presidency was not powerful enough, and too vulnerable to inspection and calls for accountability.
[...]
Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contractors rich. Early in his tenure, Mr. Cheney, who quit as chief executive of Halliburton to run with Mr. Bush in 2000, gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. But the task force was not an exercise in diverse views. Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

When you know that Cheney holds it as a basic political value that the presidency needs essentially unlimited power in military, defense, and intelligence matters; and given that Congress has always given the president wide latitude during wartime, then Cheney's eagerness for war with Iraq after 9/11 takes on added significance. Invading Iraq was the path to widening the war. Although I am not one of those who believe that the Bush administration wanted 9/11 to happen so they could increase their own power at the expense of Americans' civil liberties, I do think 9/11, once it had occurred, was viewed by Cheney as an enormous (one might even say heaven-sent) opportunity to do what they had wanted to do for decades.

And simply invading the country that had harbored the mastermind behind 9/11 was not enough. Cheney needed to widen the war into a "global war on terror": a war that not only would not end anytime soon, but conceivably could last forever. Invading Iraq was key to making the case for the existence of this "global war on terror."

Why is it that when a reporter asked Pres. Bush at his Monday press conference whether a possibly permanent war on terror implied a "more or less permanent expansion of the unchecked power of the executive in American society," the president's only objection was to the term "unchecked power" -- not to the idea that this war is permanent?

My feeling is, this administration knows full well that the war on terror as they have framed it is permanent, and that they are using this permanence to cement their power.

Katherine at Obsidian Wings says we shouldn't be surprised that the Bush administration has been so shamelessly unapologetic about breaking the law:

I was shocked by the brazen defense of the wiretapping thing like anyone else, but when I thought about it for a moment...it's not like this should be news to us.

Look. We have a President here who is making a claim of unlimited power, for the duration of a war that may never end. Oh, he says it's limited by the country's laws, but they've got a crack legal team that reliably interprets the laws to say that the President gets to do whatever he wants. It amounts to the same thing.

I am not exaggerating. I am really and truly not.

September 11 started the war. When will it end? Maybe never. Where is the battlefield? The entire world, including the United States. Who is an enemy combatant? Anyone the President says is an enemy combatant, including a U.S. citizen--no need for a charge, no need for a trial, no need for access to a lawyer. What if they're found not to be an enemy combatant? We can keep them in prison anyway, and we don't have to tell their families they're alive or their lawyers that they were cleared. What can you do to an enemy combatant? Anything you want. Detain him forever, for the rest of his life, because this is a war like any other and we have always been able to detain POWs for the duration of the war. But you don't need to follow the Geneva Conventions, because this is a war like no other in our history. And oh yes--if the President decides that we need to torture a prisoner for the war effort, it's unconstitutional for Congress to stop him. They took that position in an official memo, and they have not backed down from it. They have said it was "unnecessary" but they have never backed down from it.

They are not only entitled to do these things to people; they are entitled to do them in secret. When Congress asks for information about them, they can just ignore it. And they are entitled to actively deceive the public about all this.

That's the power they claim. At what point are we going to take that claim seriously?

There are some signs that this is beginning to happen. Consider that, in the past couple of weeks alone:

• The Senate voted to extend the current Patriot Act for six months to provide enough time to craft stronger civil liberties protections. Yes, the House did whittle that down to five weeks, but the White House still did not get the rubber stamp reauthorization before Dec. 31 that it wanted; and Congress sent a message that it might not let Pres. Bush destroy all of our civil liberties without a peep of protest.
• The Bush administration lost its twin bid to (1) have Jose Padilla's enemy combatant status voided by the federal district court in Richmond that last September had upheld the Bush administration's request to identify Padilla as an enemy combatant; and (2) have Padilla transferred to Justice Department custody to face criminal charges in Florida. This ruling means that the Supreme Court might yet agree to take Padilla's case to decide the central issue of whether the Bush administration has the right to hold someone in military detention indefinitely without charges, trial, or access to an attorney if that detainee is defined as an enemy combatant. It was precisely this possibility that the White House was trying to avert by asking the Richmond court to void the ruling upholding Padilla's enemy combatant status.
• Pres. Bush was forced to retreat on a bill banning torture by U.S. personnel: The White House fought the McCain amendment ferociously; initially trying to get it defeated, and when that didn't work, trying to get an exemption for the C.I.A. That didn't work either; and both the House and Senate have now passed the legislation, and Pres. Bush has promised to sign it.

Maybe it's a sign of how truly awful things have gotten that I feel encouraged by these signs of change, but I do feel encouraged.