Beyond the imperial presidency
December 25, 2005
President Bush is a bundle of paradoxes. He thinks the scope of the federal government should be limited but the powers of the president should not. He wants judges to interpret the Constitution as the framers did, but doesn’t think he should be constrained by their intentions.
He attacked Al Gore for trusting government instead of the people, but he insists anyone who wants to defeat terrorism must put absolute faith in the man at the helm of government.
His conservative allies say Bush is acting to uphold the essential prerogatives of his office. Vice President Cheney says the administration’s secret eavesdropping program is justified because “I believe in a strong, robust executive authority, and I think that the world we live in demands it.”
But the theory boils down to a consistent and self-serving formula: What’s good for George W. Bush is good for America, and anything that weakens his power weakens the nation. To call this an imperial presidency is unfair to emperors.
Even people who should be on Bush’s side are getting queasy. David Keene, chairman of the American Conservative Union, says in his efforts to enlarge executive authority, Bush “has gone too far.”
He’s not the only one who feels that way. Consider the case of Jose Padilla, a U.S. citizen arrested in 2002 on suspicion of plotting to set off a “dirty bomb.” For three years, the administration said he posed such a grave threat that it had the right to detain him without trial as an enemy combatant. In September, the U.S. Court of Appeals for the 4th Circuit agreed.
But then, rather than risk a review of its policy by the Supreme Court, the administration abandoned its hard-won victory and indicted Padilla on comparatively minor criminal charges. When it asked the 4th Circuit Court for permission to transfer him from military custody to jail, though, the once-cooperative court flatly refused.
In a decision last week, the judges expressed amazement that the administration suddenly would decide Padilla could be treated like a common purse snatcher–a reversal that, they said, comes “at substantial cost to the government’s credibility.” The court’s meaning was plain: Either you were lying to us then, or you are lying to us now.
If that’s not enough to embarrass the president, the opinion was written by conservative darling J. Michael Luttig–who just a couple of months ago was on Bush’s short list for the Supreme Court. For Luttig to question Bush’s use of executive power is like Bill O’Reilly announcing that there’s too much Christ in Christmas.
This is hardly the only example of the president demanding powers he doesn’t need. When American-born Saudi Yasser Hamdi was captured in Afghanistan, the administration also detained him as an enemy combatant rather than entrust him to the criminal justice system.
But when the Supreme Court said he was entitled to a hearing where he could present evidence on his behalf, the administration decided that was way too much trouble. It freed him and put him on a plane back to Saudi Arabia, where he may plot jihad to his heart’s content. Try to follow this logic: Hamdi was too dangerous to put on trial but not too dangerous to release.
The disclosure that the president authorized secret and probably illegal monitoring of communications between people in the United States and people overseas again raises the question: Why?
The government easily could have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists. The court that handles such requests hardly ever refuses. But Bush bridles at the notion that the president should ever have to ask permission of anyone.
He claims he can ignore the law because Congress granted permission when it authorized him to use force against Al Qaeda. But we know that can’t be true. Atty. Gen. Alberto Gonzales says the administration didn’t ask for a revision of the law to give the president explicit power to order such wiretaps because Congress–a Republican Congress, mind you–wouldn’t have agreed. So the administration decided: Who needs Congress?
What we have now is not a robust executive but a reckless one. At times like this, it’s apparent that Cheney and Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can’t be bothered to earn it.
I’m not sure Chapman has it right on all the details of the NSA warrantless-wiretapping question. It’s quite possible both that the program has real value and that it involves technology that can’t be squared with the particularity requirement of a warrant. But the revelation of the program by the New York Times and the nature of the claims the Administration has made in defending that program have helped to precipitate the super-saturated solution of distrust created by five long years of continual abuse of power.