Elizabeth Drew: [Bush] Power Grab


Richard Moore

Original source URL:

Power Grab
By Elizabeth Drew
George W. Bush


During the presidency of George W. Bush, the White House has made an 
unprecedented reach for power. It has systematically attempted to defy, control,
or threaten the institutions that could challenge it: Congress, the courts, and 
the press. It has attempted to upset the balance of power among the three 
branches of government provided for in the Constitution; but its most aggressive
and consistent assaults have been against the legislative branch: Bush has time 
and again said that he feels free to carry out a law as he sees fit, not as 
Congress wrote it. Through secrecy and contemptuous treatment of Congress, the 
Bush White House has made the executive branch less accountable than at any time
in modern American history. And because of the complaisance of Congress, it has 
largely succeeded in its efforts.

This power grab has received little attention because it has been carried out 
largely in obscurity. The press took little notice until Bush, on January 5 of 
this year, after signing a bill containing the McCain amendment, which placed 
prohibitions on torture, quietly filed a separate pronouncement, a "signing 
statement," that he would interpret the bill as he wished. In fact Bush had been
issuing such signing statements since the outset of his administration. The 
Constitution distinguishes between the power of the Congress and that of the 
president by stating that Congress shall "make all laws" and the president shall
"take care that the laws be faithfully executed." Bush claims the power to 
execute the laws as he interprets them, ignoring congressional intent.

Grover Norquist, a principal organizer of the conservative movement who is close
to the Bush White House and usually supports its policies, says, "If you 
interpret the Constitution's saying that the president is commander in chief to 
mean that the president can do anything he wants and can ignore the laws you 
don't have a constitution: you have a king." He adds, "They're not trying to 
change the law; they're saying that they're above the law and in the case of the
NSA wiretaps they break it." A few members of Congress recognize the 
implications of what Bush is doing and are willing to speak openly about it. 
Dianne Feinstein, Democratic senator from California, talks of a "very broad 
effort" being made "to increase the power of the executive." Chuck Hagel, 
Republican senator from Nebraska, says:

There's a very clear pattern of aggressively asserting executive power, and the 
Congress has essentially been complicit in letting him do it. The key is that 
Bush has a Republican Congress; of course if it was a Clinton presidency we'd be
holding hearings.

The public scenes of the President surrounded by smiling legislators whom he 
praises for their wonderful work as he hands out the pens he has used to sign 
the bill are often utterly misleading. The elected officials aren't informed at 
that time of the President's real intentions concerning the law. After they 
leave, the President's signing statements‹which he does not issue verbally at 
the time of signing‹ are placed in the Federal Register, a compendium of US 
laws, which members of Congress rarely read. And they are often so technical, 
referring as they do to this subsection and that statute, that they are 
difficult to understand.

For five years, Bush has been issuing a series of signing statements which 
amount to a systematic attempt to take power from the legislative branch. Though
Ronald Reagan started issuing signing statements to set forth his own position 
on a piece of legislation, he did it essentially to guide possible court 
rulings, and he only occasionally objected to a particular provision of a bill. 
Though subsequent presidents also issued such statements, they came nowhere near
to making the extraordinary claims that Bush has; nor did they make such 
statements nearly so often.

According to an article in The Boston Globe, Bush has claimed the right to 
ignore more than 750 laws enacted since he became president. He has unilaterally
overruled Congress on a broad range of matters, refusing, for example, to accept
a requirement for more diversity in awarding government science scholarships. He
has overruled numerous provisions of congressional appropriations bills that he 
felt impinged on his executive power. He has also overruled Congress's 
requirement that he report back to it on how he has implemented a number of 
laws. Moreover, he has refused to enforce laws protecting whistle-blowers and 
providing safeguards against political interference in federally funded 
research. Bush has also used signing statements to place severe limits on the 
inspectors general created by Congress to oversee federal activities, including 
two officials who were supposed to inspect and report to Congress on the US 
occupation of Iraq.

The President could of course veto a bill he doesn't like and publicly argue his
objections to it. He would then run the risk that Congress would override his 
veto. Instead, Bush has chosen a method that is largely hidden and is difficult 
to challenge. As of this writing, Bush has never vetoed a bill (though he has 
threatened to do so in the case of a spending bill now pending in Congress). 
Some of the bills Bush has decided to sign and then ignore or subvert were 
passed over his objections; others were the result of compromises between 
Congress and the White House. Arlen Specter, the Republican senator from 
Pennsylvania and chairman of the Senate Judiciary Committee, told me, "Under the
Constitution if the president doesn't like a bill he vetoes it. You don't 
cherry-pick the legislation."

Bush has cited two grounds for flouting the will of Congress, or of unilaterally
expanding presidential powers. One is the claim of the "inherent" power of the 
commander in chief.

Second is a heretofore obscure doctrine called the unitary executive, which 
gives the president power over Congress and the courts. The concept of a unitary
executive holds that the executive branch can overrule the courts and Congress 
on the basis of the president's own interpretations of the Constitution, in 
effect overturning Marbury v. Madison (1803), which established the principle of
judicial review, and the constitutional concept of checks and balances.

The term "unitary government" has two different meanings: one simply refers to 
the president's control of the executive branch, including the supposedly 
independent regulatory agencies such as the SEC and the FDA. The other, much 
broader concept, which is used by Bush, gives the executive power superior to 
that of Congress and the courts. Previous presidents have asserted the right not
to carry out parts of a bill, arguing that it impinged on their constitutional 
authority; but they were specific both in their objections and in the ways they 
proposed to execute the law. Clinton, for example, objected to provisions in a 
bill establishing a semi-autonomous National Nuclear Security Administration, 
which set out the reasons for removing the director. Clinton objected that that 
impinged on his presidential prerogatives. Bush asserts broad powers without 
being specific in his objections or saying how he plans to implement the law. 
His interpretations of the law, as in his "signing statement" on the McCain 
amendment, often construe the bill to mean something different from ‹and at 
times almost the opposite of‹what everyone knows it means.

The concept of the unitary executive, which has been put forward in conservative
circles for several years, has been advocated mainly by the Federalist Society, 
a group of conservative lawyers who also campaign for the nomination of 
conservative judges. The idea was seriously considered in the Reagan 
administration's Justice Department. One of its major supporters was Samuel 
Alito, then a lawyer in the Justice Department. In his confirmation hearing, 
Alito said that the memorandum he wrote saying that the president's 
interpretation of a bill "should be just as important as that of Congress" was 
"theoretical." But no president until Bush explicitly claimed that the concept 
of a unitary executive was a basis for overruling a bill.

The theory was formulated by John Yoo, a mid-level but highly influential 
attorney in the Justice Department between 2001 and 2003, who took the view that
the president had the power to do pretty much whatever he wanted to do. (He also
wrote the infamous memorandum defending what amounted to torture.[1] ) As White 
House counsel, Alberto Gonzales, now attorney general, also publicly supported 
the theory of the unitary executive.

The theory rests on the Oath of Office, in which, according to the Constitution,
the newly elected president promises to "faithfully execute the office of 
President," and also on the section of Article II that states that the president
"shall take care that the laws be faithfully executed." The administration has 
put forward unprecedented interpretations of both clauses, claiming that they 
give the president independent authority, unchecked by the other branches of 
government, to decide what the law means. This theory overlooks the fact that 
the framers were particularly wary of executive power. A number of 
constitutional scholars I have spoken with describe the administration's theory 
of the unitary executive as no more than a convenient fig leaf for enlarging 
presidential power.


Bush's claims of extraordinary power as commander in chief have been mainly 
invoked since September 11, 2001. He was able to exploit the anxieties the 
attacks had stirred, causing people to look to the President to defend them. 
Senator Jack Reed, Democrat of Rhode Island, recalled that everyone

looked to the presidency, not to the 535 senators and congressmen, to protect 
them from a further crippling attack and suspended their mistrust of government.
So they [the administration] took great power, which has to be handled wisely, 
but they didn't.

It is under the authority of his powers as commander in chief that Bush asserted
the right to keep nearly five hundred "enemy combatants" in detention in 
Guantánamo, of whom only ten were charged with a crime. Most were handed over by
Afghan bounty hunters who were paid by the US to turn in Arabs. Bush has also 
asserted the same authority in dealing with numerous bills passed by Congress, 
most spectacularly in his treatment of the McCain amendment banning "cruel, 
inhuman or degraded treatment" of POWs. In his signing statement, Bush said:

The executive branch shall construe [the torture provision] in a manner 
consistent with the constitutional authority of the President to supervise the 
unitary executive branch and as Commander in Chief and consistent with the 
constitutional limitations on the judiciary....

This general formula had by then become a standard part of Bush's signing 
statements, though few noticed. What Bush said about the torture bill was 
particularly egregious since Vice President Cheney, Bush's liaison with 
Congress, had tried to negotiate with the Senate a provision watering down 
McCain's bill, and failed. The Senate passed it by a vote of 90 to 9, and the 
House endorsed it by a vote of 308 to 122. It had been an open, well-publicized 
fight and the President lost.

In late February, shortly after Bush's signing statement on the McCain 
amendment, the Constitution Project, a bipartisan, nonprofit organization in 
Washington, issued a protest signed by former government officials of both 
parties, prominent conservatives, and scholars, saying that they "are deeply 
concerned about the risk of permanent and unchecked presidential power, and the 
accompanying failure of Congress to exercise its responsibility as a separate 
and independent branch of government." They objected to Bush's assertions that 
he "may not be bound" by statutes enacted by Congress, such as the McCain 
amendment, and that he can ignore "long-standing treaty commitments and statutes
that prohibit the torture of prisoners." It concluded that "we agree that we 
face a constitutional crisis."[2]

Another egregious use of the signing statements occurred when Bush said in March
that, in interpreting the bill reauthorizing the Patriot Act, he would ignore 
the requirement that the president report to Congress on the steps taken to 
implement the law, thus denying that the executive should be accountable to 
Congress. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee,
issued an angry protest calling Bush's use of signing statements "nothing short 
of a radical effort to re-shape the constitutional separation of powers and 
evade accountability and responsibility for following the law." Leahy added, 
"The President's signing statements are not the law, and we [the Congress] 
should not allow them to become the last word."

Bush went still further in his extraordinary claim of supreme power on December 
17, 2005, when he acknowledged that, as revealed in The New York Times the day 
before, the government was conducting warrantless wiretapping of domestic calls.
He claimed that he had the power to order such taps "to save lives," regardless 
of what the existing law said.

His claim rested on two contradictory arguments. First, he said that warrantless
wiretaps were authorized in the resolution enacted three days after September 
11, which said that the president could "use all necessary and appropriate 
force" to combat al-Qaeda. But the administration also argued that it didn't 
need authorization because of the inherent powers of the commander in chief. 
Former Senate Majority Leader Tom Daschle wrote that the administration had 
asked for a much broader resolution on the use of force than the one Congress 
approved. At the last minute the White House sought to have the resolution also 
include actions "in the United States" but was turned down.

One problem with the President's claims of extraordinary powers as commander in 
chief is that the "war on terror" is by definition an open-ended one, with no 
time limit on the president's powers, as Bush interprets them, to do virtually 
whatever he wants in order to conduct that war. There are undefined limits on 
how far the legislature can go in instructing the president on how to conduct a 
war; clearly it cannot tell him how to deploy combat troops. But during the 
Vietnam War, Congress used the power of the purse, voting to cut off funds. The 
Nixon administration didn't argue that Congress had no power to do so.


There is no way of knowing how many other laws already on the books are being 
reinterpreted by Bush, as he's done in the case of the NSA wiretapping program. 
The Foreign Intelligence Surveillance Act, or FISA, passed in 1978 after the 
Supreme Court had unanimously rejected as illegal Richard Nixon's domestic 
wiretapping, set forth what it said were the "exclusive means" by which an 
administration could conduct surveillance on Americans. The FISA law set up a 
special, secret court that could grant the government permission to wiretap 
American citizens after a showing of probable cause. One of the administration's
justifications for initiating a wiretapping program outside the FISA law is that
taps on potential terrorists must be initiated speedily; but the FISA law gives 
the executive three days to conduct a warrantless tap in an emergency and 
fifteen days if there's been a declaration of war. Gonzales complains that the 
law is too burdensome, since the attorney general still has to sign off on 
emergency taps and that they have to meet FISA standards. (A Republican senator,
upon being told these complaints, said, "So what's the problem?") But the FISA 
law has been amended twice since it was enacted and the administration has never
specifically and clearly asked Congress to revise the law to take account of 
changed circumstances.

The administration's wiretapping program appears to violate the Fourth 
Amendment's guarantee that "the right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable searches and 
seizures, shall not be violated, and no warrants shall issue, but upon probable 
cause...."[3] The original impetus for the Bush program reportedly came from 
General Michael V. Hayden, then head of the National Security Agency, which 
collects information in the name of national security, and Bush's nominee to 
head the CIA. Hayden told a receptive White House that the NSA counsel had said 
the program was legal. The government claims that if a member of al-Qaeda, or of
a group "supportive of" al-Qaeda, calls or e-mails someone in the United States,
or if someone in the US initiates the conversation, the government, which could 
already tap the suspected terrorist, can now tap the US resident as well. This 
raised the question whether that US citizen's other calls would be tapped.

In a press briefing given at the White House by Gonzales and Hayden on January 
19 this year, Gonzales emphasized that "one party to the communication has to be
outside the United States" and insisted there has to be "a reasonable basis" for
concluding that one party to the communication is affiliated with or "supportive
of" al-Qaeda, an extremely vague standard. And the administration is now making 
that decision, not the FISA court. Gonzales, moreover, has told congressional 
committees that he couldn't rule out that the President has the authority to 
wiretap purely domestic calls. Asked why the administration didn't go to 
Congress for authorization to wiretap domestic calls in terrorism cases without 
seeking a warrant, Gonzales replied: "We have had discussions with Congress in 
the past‹certain members of Congress ‹as to whether or not FISA could be amended
to allow us to adequately deal with this kind of threat, and we were advised 
that that would be difficult, if not impossible." In other words, having been 
told that Congress was unlikely to authorize the warrantless wiretaps of 
domestic calls, the administration went ahead and did the tapping.

The Bush administration's reaction to the revelations about the wiretapping 
program has been to attack the leaks. In his statement acknowledging the 
wiretapping program, Bush said, "The fact that we're discussing this program is 
helping the enemy." In an attempt to limit congressional oversight, the 
administration tried to restrict the number of members of Congress it would 
brief on such matters. According to a presidential directive issued quietly 
after September 11, officials were to discuss highly classified information with
only the Republican chairman and the ranking Democrat on the Senate and House 
Intelligence Committees‹committees that were established to conduct oversight on
intelligence activities following the CIA scandals in the mid-Seventies‹as well 
as the Republican and Democratic leaders of each chamber (a total of eight 
people) and not with the full intelligence committees.

Under the new rules, the members of this small group of people weren't permitted
to discuss the program with other members of the intelligence committees, or 
with their own staffs. It was for the administration to decide which 
intelligence matters were too sensitive to discuss with the entire intelligence 
committees. One problem with this White House­imposed arrange-ment was that just
as members of other congressional committees become cozy with the government 
agencies they are supposed to oversee, the intelligence committee heads‹with the
notable exception of Democratic Senator Jay Rockefeller, of West Virginia‹are 
known to be close to the intelligence agencies. In July 2003, Rockefeller sent 
Cheney a handwritten letter saying that the restrictions on briefings "raise 
profound oversight issues."

Rockefeller also wrote that the wiretapping program recalled the highly 
intrusive Pentagon Total Information Awareness program headed by John 
Poindexter, which Congress voted to abolish. The resemblance, he wrote, 
"exacerbat[ed] my concern regarding the direction the Administration is moving 
with regard to security, technology, and surveillance." (Rockefeller released 
the statement following the Times's disclosure.) Earlier this year, Chuck Hagel 
and Olympia Snowe, Republican of Maine, threatened to vote with the Democrats 
for an investigation of the wiretapping program unless the full committee was 
briefed on it. In early March, on the eve of a scheduled vote on the matter, 
Cheney was called to a meeting with some committee Republicans in S207, the 
committee's highly secured room in the Capitol. The Republicans, including 
Snowe, sharply criticized Cheney for the administration's attempts to prevent 
other committee members from being briefed about the program.

Cheney had to report to the White House that its plan to shut out all but the 
top committee members was no longer feasible. But, working with Pat Roberts, 
chairman of the Senate Intelligence Committee, and Senate Majority Leader Bill 
Frist, the administration was able to limit the additional committee members to 
be briefed to four Republicans and three Democrats, still leaving most of the 
intelligence committee members, not to mention other elected officials, in the 
dark. On the eve of Hayden's confirmation hearings, Roberts, facing a public 
revolt by committee members of both parties, agreed that all of the committee 
members should be briefed on the surveillance programs. This was also a way of 
preventing committee members who hadn't been briefed from asking awkward 
questions in public. (This led to the tepid questioning of Hayden in his public 
confirmation hearings.) Despite the briefing, in the public hearing Snowe said,

the Congress was really never really consulted or informed in the manner that we
could truly perform our oversight role as co-equal branches of government, not 
to mention‹I happen to believe‹required by law.

In March, after the Senate Intelligence Committee declined to hold hearings on 
the matter, Arlen Specter, Republican of Pennsylvania, convened four days of 
hearings before the Judiciary Committee. But Specter concluded that Gonzales's 
testimony was too vague to be informative. In late April he threatened to cut 
off NSA funds for the wiretapping program if the administration didn't reveal 
more about it. Asked by a reporter why he didn't call Gonzales back to appear 
before his committee, Specter replied, "Because he won't tell us anything." The 
administration, apparently on the orders of the White House, shut down a Justice
Department investigation into the wiretapping program.

Bush's nomination of Hayden to be the next CIA director set off an undoubtedly 
greater clamor than the White House expected over his role in the wiretapping 
program and his strenuous public defense of it, but the White House claimed it 
welcomed the fight. And then another clamor was set off by the revelation by USA
Todaythat the NSA was collecting the phone records of tens of millions of 
Americans from major telephone companies. In a statement to the press, Bush said
the NSA wasn't listening to the calls but was only tracing the pattern of 
contacts they revealed. But it would be easy for the NSA or another agency to 
correlate the numbers with the names of the callers. In any event, the program 
is quite possibly illegal. (Specter is to hold hearings.) These disclosures led 
some lawmakers to wonder what else they hadn't been told that the administration
was doing in the name of national security.

A big congressional fight over the wiretapping program would fit neatly into 
Karl Rove's strategy, declared earlier this year to a meeting of the Republican 
National Committee, of cynically making the issue of national security central 
to the 2006 election, as he did in 2002. "Republicans," he said, "have a 
post-9/11 worldview and many Democrats have a pre-9/11 worldview." With its 
penchant for propagandistic titles (the "Patriot Act"), the administration calls
the warrantless wiretapping program the "terrorist surveillance" program, and it
imputes to its opponents the view that terrorists should not be wiretapped. But 
of course that is not the issue: most of the critics on Capitol Hill are simply 
arguing that wiretapping programs should be subject to the law. Hagel says, "You
cannot have one branch of government make the decision on whose rights would be 
violated. That's the very basis of having three co-equal branches of 


As for the judicial branch, the Bush administration, like previous 
administrations, has tried to appoint judges compatible with the President's 
views. But Bush has been strikingly successful at putting extreme conservatives 
on the bench, and probably now has four votes on the Supreme Court for his 
"unitary executive" rationale for executive authority over what the other 
branches do. His administration has several times told the Supreme Court that it
should not hear the cases of detainees. Also by his appointments and by exerting
pressure Bush has bent the supposedly independent regulatory agencies (the EPA, 
SEC, FDA, etc.) closer to his political views‹in his case, pro-deregulation‹than
any president before him.[4] The explicit rationale for these agencies is that 
they were to be independent of both the executive and Congress. There have 
already been two federal court rulings charging the EPA with defying federal 
environmental law.

As for the press, Justice Department officials have threatened to prosecute not 
only officials who leak classified information, but also anyone else who simply 
receives classified information, whether they disclose it or not. Gonzales has 
suggested that journalists might be prosecuted for disclosing classified 
information (for example, The New York Times reporters for revealing the 
warrantless wiretapping program). On May 16, ABC News reported on its Web site 
that the FBI had stepped up government efforts to seek reporters' phone records 
in investigations of leaks. Many reporters and editors find it ominous that the 
administration prosecuted two lobbyists for AIPAC, the American Israel Public 
Affairs Committee, for receiving such information (as well as passing it on to 
Israel), and that, in early March, the FBI demanded the papers of the late 
investigative reporter Jack Anderson.

Cheney and his chief of staff, David Addington, formerly his counsel, are 
understood by most informed observers to be mainly responsible for the expansive
interpretations of the president's powers, as well as the unprecedented secrecy 
with which the administration conducts public affairs. According to The New York
Times, after September 11 Cheney and Ad-dington pushed for the wiretapping of 
domestic calls. A Republican lobbyist I talked to told me that the 
administration's attitude on various issues is simple: "It's we just want it our
way and we don't want to be bothered by talking to other people about it."

Some Republican observers suggest that Cheney is living in a time warp, reacting
to what he saw as congressional encroachment (including FISA) on the president's
powers during the time that he served in the Ford White House and as a minority 
member of a Democratic Congress. Despite rumors of a decline in his standing 
with Bush, Cheney remains the most powerful vice-president in American history, 
with an octopus-like reach into many parts of the government. He has placed his 
own people in each of the national security agencies‹the Departments of Defense 
and State as well as the CIA and the National Security Council. (Until she 
recently took a maternity leave, his daughter Elizabeth was principal deputy 
assistant secretary of state for the Near East, a position that does not require
Senate confirmation and from which people on Capitol Hill saw her as effectively
in charge of the State Department's Middle East bureau.) Cheney installed Porter
Goss in the CIA, with orders to root out people who leaked information 
inconvenient to the administration. It's difficult, however, to know much about 
what Cheney is doing because his office operates in such secrecy that a reporter
friend of mine refers to it as a "black hole."

In Bush, Cheney has had a very receptive listener. Bush's own overweening 
attitude toward the presidency is clear from his behavior. He bristles at being 
challenged. He told Bob Woodward, "I do not need to explain why I say things. 
That's the interesting thing about being the president. Maybe somebody needs to 
explain to me why they say something, but I don't feel I owe anybody an 
explanation." His comment, "I'm the decider," about not firing Rumsfeld, is in 
fact a phrase he has used often.

Why have the members of Congress been so timorous in the face of the steady 
encroachment on their constitutional power by the executive branch? 
Conversations with many people in or close to Congress produced several reasons.
Most members of Congress don't think in broad constitutional terms; their chief 
preoccupations are raising money and getting reelected. Their conversations with
their constituents are about the more practical issues on voters' minds: the 
prices of gasoline, prescription drugs, and college tuition. Or about voters' 
increasing discontent with the Iraq war.

Republicans know that the President's deepening unpopularity might hurt them in 
the autumn elections; but, they point out, he's still a good fund-raiser and 
they need his help. Moreover, the Republicans are more hierarchical than the 
Democrats, more reverential toward their own party's president; it's 
unimaginable that Republicans would be as openly critical of Bush as the 
Democrats were of Jimmy Carter and Bill Clinton. Republicans are more 
disciplined about delivering their party's "talking points" to the public. 
Republican fund-raising is done more from the top than is the case with 
Democrats, and there's always the implicit threat that if a Republican isn't 
loyal to the president, the flow of money to their campaigns might be cut off. A
Republican opponent can challenge an incumbent in a primary, in which not many 
people vote. Here Arlen Specter has shown unusual courage. He barely survived a 
conservative challenge in the primary election in 2004 (though Bush supported 
him), and then had to beat back a conservative attempt to remove him as chairman
of the Senate Judiciary Committee because of his views in favor of abortion 
rights. He survived by promising not to let his pro-choice views hold up the 
judicial nominations before the committee. Specter told me, "What I worry about 
most is the restrictions of Congress's constitutional authority, which the 
Congress doesn't resist."

Bush's declining popularity can occasionally impel Republicans to try to seem 
independent of him‹as, say, on the issue of Dubai being awarded a contract to 
administer US ports; after all the administration's talk about security, this 
arrangement sounded outrageous in the American heartland, and members of 
Congress rushed to kill it. But the Republican legislators have also become 
convinced, in the words of one Republican senator, "We've got to hang with the 
president because if you start splitting with him or say the president has been 
abusing power we'll all go down." Karl Rove has recently been arguing along 
these lines to congressional Republicans. In the end, a Republican lobbyist told
me, Republican politicians feel that Bush is "still their guy." The fierce 
partisanship on Capitol Hill also blocks serious discussion of the issue of 
unlimited executive power: many Republicans have concluded that the Democrats 
are exploiting such issues for partisan purposes and have dug in against them. 
On May 11, at a regular weekly luncheon of about twenty conservative senators, 
Senator Roberts denounced criticism of Bush's surveillance and data-collecting 
programs as "dangerous" and "insulting" to the President and charged the 
Democrats with treating national security as a political issue. Members of 
Congress who are protective of their institution and capable of looking beyond 
their parochial concerns‹and who might have objected to Bush's encroachments on 
the legislative branch‹are largely gone.

From the time of the vote on the Iraq war, many Democrats have been reluctant to
be caught on the "wrong side" of "national security" issues, even those 
blatantly cooked up by the White House. It usually requires a strong public 
reaction, as there was on the subject of torture, for Congress to make a move 
against the President's actions. A Republican senator told me, "There's a 
feeling on the Hill that the public doesn't care about it, that it's willing to 
give up liberties in order to defeat the terrorists." Some of the proposals 
offered on Capitol Hill for regulating the NSA wiretaps amount to little 
regulation at all.

At the center of the current conflict over the Constitution is a president who 
surrounds himself with proven loyalists, who is not interested in complexities, 
and who is averse to debate and intolerant of dissenters within his 
administration and elsewhere. (A prominent Washington Republican who had raised 
a lot of money for Bush was dropped from the Christmas party list after he said 
something mildly critical of the President.) A Republican lobbyist close to the 
White House described to me what he called the Cult of Bush: "This group is all 
about loyalty and the definition of loyalty extends to policy-making, politics, 
and to the execution of policy‹and to the regulatory agencies." The result, this
man said, is that the people in the agencies, including the regulatory agencies,
"become robotrons and just do what they're told. There's no dialogue."

The President's recent political weakness hasn't caused the White House to back 
away from its claims of extraordinary presidential power. The Republican 
lobbyist Vin Weber says, "I think they're keenly aware of the fact that they're 
politically weakened, but that's not the same thing as the institution of the 
presidency being damaged." People with very disparate political views, such as 
Grover Norquist and Dianne Feinstein, worry about the long-term implications of 
Bush's power grab. Norquist said, "These are all the powers that you don't want 
Hillary Clinton to have." Feinstein says, "I think it's very dangerous because 
other presidents will come along and this sets a precedent for them." Therefore,
she says, "it's very important that Congress grapple with and make decisions 
about what our policies should be on torture, rendition, detainees, and 
wiretapping lest Bush's claimed right to set the policies, or his policies 
themselves, become a precedent for future presidents."

James Madison wrote in Federalist Paper No. 47:

The accumulation of all powers legislative, executive and judiciary in the same 
hands, whether of one, a few or many...may justly be pronounced the very 
definition of tyranny.

That extraordinary powers have, under Bush, been accumulated in the "same hands"
is now undeniable. For the first time in more than thirty years, and to a 
greater extent than even then, our constitutional form of government is in 

‹May 24, 2006

[1] See the review by David Cole of John Yoo's The Power of War and Peace: The 
Constitution and Foreign Affairs After 9/11 (University of Chicago Press, 2005),
in The New York Review, November 17, 2005.

[2] Among the signers were David Keene, chairman of the American Conservative 
Union; Abraham Sofaer, of the Hoover Institution and former legal adviser to 
Reagan's State Department; Richard Epstein, a conservative legal scholar at the 
University of Chicago; Bruce Fein, formerly of the Reagan Justice Department and
a conservative legal activist; and William Sessions, FBI director under George 
H.W. Bush. See www.constitutionproject.org.

[3] For other constitutional arguments against the wiretapping program see "On 
NSA Spying: A Letter to Congress," signed by David Cole et al., The New York 
Review, February 9, 2006. See also a second letter at 

[4] See Marcia Angell's article on the failures of the FDA, "Your Dangerous 
Drugstore," The New York Review, June 8, 2006.

Escaping the Matrix website     http://escapingthematrix.org/
cyberjournal website            http://cyberjournal.org
subscribe cyberjournal list     mailto:•••@••.•••
Posting archives                http://cyberjournal.org/show_archives/
  cyberjournal forum            http://cyberjournal-rkm.blogspot.com/
  Achieving real democracy      http://harmonization.blogspot.com/
  for readers of ETM            http://matrixreaders.blogspot.com/
  Community Empowerment http://empowermentinitiatives.blogspot.com/
  Blogger made easy             http://quaylargo.com/help/ezblogger.html