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
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
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
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.”]
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
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
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
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.
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
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
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
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.