Either the United States will accept a future governed by an authoritarian Executive, with few safeguards of a citizen’s constitutional rights and no real checks and balances from other branches of government, or the American people will challenge the White House in defense of a traditional Republic, where no man is above the law.

George W. Bush has left almost no wiggle room. He has asserted as clearly as any Executive could that he is the law; that he can define his own powers; that the Constitution is whatever he says it is; that Congress can’t constrain him; and that the Courts must not try to “usurp” his authority.

If Bush’s royal view of his power wasn’t already apparent, his Justice Department spelled it out again in a remarkable rebuke to the conservative-dominated U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, on Dec. 28, 2005.

Bush’s lawyers scolded the judges for rebuffing Bush’s order to transfer alleged “enemy combatant” Jose Padilla from military control to the Justice Department. The court had stopped the move because the transfer frustrated Padilla’s legal challenge to Bush’s assertion of a right to detain a U.S. citizen indefinitely without charges or a trial.

The Justice Department countered by accusing the appeal court judges, including conservative icon J. Michael Luttig, of “an unwarranted attack on the exercise of Executive discretion” and a usurpation of Bush’s exercise of “prosecutorial discretion.”

Bush’s lawyers demanded that the Republican-controlled U.S. Supreme Court endorse Bush’s interpretation of his presidential powers, although it’s not clear what would happen if a majority of those justices reject Bush’s arguments.

Bush conceivably could order the military to turn over Padilla to federal marshals anyway. In other words, Bush might brush aside the Supreme Court as just one more “usurper.” Or the Supreme Court might acquiesce to Bush’s demands to avert a constitutional crisis.

No Limits

Since the terror attacks on Sept. 11, 2001, Bush has asserted, in effect, that there are no limits on his powers as commander in chief at a time of war, even a shadowy conflict like the War on Terror that may last forever.

The Justice Department’s tongue-lashing of the Appeals Court comes on the heels of Bush’s assertion that he can ignore the law that sets legal constraints on wiretaps of American citizens. In claiming the right to wiretap without warrants, Bush elbowed aside both a special court created to approve secret wiretaps and Congress, which passed the Foreign Intelligence Surveillance Act in 1978.

Over the past four years, Bush also has claimed that he doesn’t need congressional approval to attack other countries; that he can ignore treaty obligations at his discretion; and that he can authorize physical abuse of detainees in American custody.

Beyond his government powers, Bush and his allies also can deploy media assets – Fox News, AM talk radio, right-wing magazines, newspapers, books and the Internet. Billions of dollars invested by far-right moguls, such as Rupert Murdoch and the Rev. Sun Myung Moon, have created the capability to damage political critics, both big and small. [For details, see Robert Parry's Secrecy & Privilege.]

But cracks are appearing in Bush’s political juggernaut.

Polls show that most Americans now oppose his invasion of Iraq; mainstream news organizations have begun to publish skeptical articles; a few congressional Republicans have joined Democrats in seeking constraints on Bush’s authority; and even conservative jurists – like those on the Fourth Circuit – are objecting to high-handed legal strategies.

In 2005, Americans also got a look at the Bush administration’s incompetence, corruption and cronyism – characteristics that often accompany a loss of checks and balances, as in the old adage, “power tends to corrupt; absolute power corrupts absolutely.”

The scandal swirling around super-lobbyist Jack Abramoff has the potential to pull in a significant number of Republican lawmakers. After all, Abramoff’s rise was made possible by the Republican dominance of Congress in the latter 1990s and the GOP’s near monopoly on national political power since 2001.

The Washington Post has reported that the Abramoff case may open up “what could become the biggest congressional corruption scandal in generations.” [Washington Post, Dec. 29, 2005]

Abramoff’s close ties to Republican political strategists, such as Karl Rove, Grover Norquist and Ralph Reed, have spread the taint of the lobbying scandal to the highest levels of Congress and into the White House.

Members of Congress – mostly Republicans – could be implicated in bribery allegations if Abramoff strikes a plea agreement to minimize his possible jail time from a fraud trial in Florida, which is scheduled to start on Jan. 9, 2006.

Though most of the Abramoff case centers on high-priced influence peddling in Washington, one of Abramoff’s business deals for the purchase of a casino cruise line became entangled in the gangland-style murder of the company’s former owner. [For more details, see Consortiumnews.com’s “Holidays, Lobbyists & Murder.”]

Katrina Debacle

Another leak in Bush’s grand ship of state has come from the exposure of administrative incompetence.

While Bush’s defenders justify his extraordinary assertion of executive power as needed to protect Americans from another terrorist attack, Bush’s unchecked authority may do more to undermine security than to advance it. That seems to be the case with the Department of Homeland Security.

Instead of a bulwark against terrorist attacks, the new department has become better known as a snake pit of bureaucratic infighting. An investigation by the department’s inspector general found that DHS suffered from severe management problems that were glaringly exposed during its reactions to Hurricanes Katrina and Rita in summer 2005.

After Hurricane Katrina rumbled ashore flooding New Orleans and the Gulf Coast, the Bush administration’s bungled response shocked Americans and alerted the nation’s foreign enemies to the vulnerabilities of U.S. defenses.

As thousands of Americans in Louisiana and Mississippi struggled to survive and hundreds drowned, Bush grudgingly broke off a month-long vacation to visit the disaster zone. He then praised his hapless Federal Emergency Management Agency director Michael Brown with the now-infamous accolade, “Brownie, you’re doing a heck of a job.”

The DHS inspector general made clear that Brown’s subsequent resignation has not solved FEMA’s management problems.

“The circumstances created by Hurricanes Katrina and Rita prove an unprecedented opportunity for fraud, waste and abuse” largely because of administrative weaknesses at FEMA, which is part of DHS, the inspector general wrote. [Washington Post, Dec. 29, 2005]

Also underscoring Bush’s lack of competence has been his conduct of the Iraq War, which was started based on false intelligence about Iraq’s weapons of mass destruction and its supposed links to al-Qaeda terrorists. Bush then compounded the problem of an unjustified invasion by deploying insufficient forces and miscalculating Iraqi resistance.

To make matters still worse, many National Guard units lacked protective armor both for their vehicles and their flak vests. Some individual soldiers – such as Pvt. Lynndie England – were so poorly trained that they alienated Iraqis and much of the civilized world with prisoner abuses at Abu Ghraib.

Now, the American people are looking at the prospect of continuing troop casualties – already exceeding 2,100 dead – with an eventual outcome that is likely to be either a civil war fought among Iraq’s religious sects or a government run by Iraq’s Islamic Shiite clergy allied with Iran’s mullahs.

The strategic nightmare of Islamic fundamentalists controlling vast pools of oil in the Middle East – an outcome that Ronald Reagan and George H.W. Bush maneuvered to prevent by playing Iraq off against Iran in the 1980s – now appears close to reality, thanks to the misjudgments of George W. Bush.

Challenges Ahead

Whether this mix of arrogance and incompetence leads to Americans deciding that Bush – and future presidents – must be reined in will be the dominant political question of 2006, as the United States heads toward historic congressional elections in November.

Bush’s defenders are certain to argue that Bush has judiciously applied his executive authority at a dangerous time when terrorists are threatening to unleash chemical, biological or even nuclear attack inside the United States; that the tradeoff of constitutional protections for greater security is a wise one.

After all, the defenders will say, these expansive presidential authorities – to imprison people without trial, to permit torture of detainees, to wiretap without court warrants, to overthrow foreign leaders in defiance of the United Nations Charter – only hurt “bad guys” and fellow-travelers, not patriotic Americans.

But the gauntlet that Bush has thrown down publicly is one of presidential precedents. He is asserting for himself and his successors the unfettered right to do virtually whatever they want under their commander-in-chief powers, during an open-ended War on Terror that conceivably could last forever.

At first, Bush chose to conceal the scope of his claimed powers, usually by defining them in highly classified executive orders. Other times, he just lied.

For instance, in a speech in Buffalo, N.Y., on April 20, 2004 – about two years after signing an order for warrantless wiretaps – Bush went out of his way to state that he had not abrogated the rights of American citizens under the Fourth Amendment, which protects against searches and seizures without court orders.

“By the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order,” Bush said. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

Later that year, the White House kept this new authority hidden by persuading the New York Times to withhold a story about the warrantless wiretaps, which had been leaked to the newspaper before Election 2004. Only after the Times finally ran the article on Dec. 16, 2005, did Bush admit that he had authorized wiretaps without a court order.

Commenting on Bush’s confirmation of his warrantless wiretaps, Richard Nixon’s White House counsel John Dean remarked that Bush was “the first president to admit to an impeachable offense.”

But there is added significance to having Bush’s panoply of claimed authority out in the open.

The American people now have two choices: they can accede to Bush’s robust concept of Executive power – that it is virtually unlimited – or they can defend the traditional concept of a robust democratic Republic – that the rule of law applies to everyone no matter how exalted or modest your status.

In practical political terms, the public would signal its support for Bush’s broad powers by backing Republican candidates in Election 2006. Conversely, voters would seek to constrain Bush’s authority by repudiating his party in November.

A turnover of the House and Senate to the Democrats would set the stage for one of the most significant political battles in modern American history: a full-scale investigation of Bush’s actions since 2001, a likely battle over congressional subpoena powers, and possible articles of impeachment against Bush and Vice President Dick Cheney.

Some political observers certainly would prefer avoiding such a showdown, especially given the enfeebled state of the American political process and the ineptitude of the U.S. news media. But finessing the constitutional issues by ignoring the facts may no longer be a viable option.

To paraphrase Defense Secretary Donald Rumsfeld’s comment about shortcomings in the U.S. army that he sent to war in Iraq: Sometimes you have to go into battle with the political system you’ve got, not the one you wish you had.