Power play: why Bush is facing a backlash against his 'imperial' presidency
Power play: why Bush is facing a backlash against his 'imperial' presidency
By Caroline Daniel
Copyright The Financial Times Limited 2006
Published: July 6 2006 03:00 | Last updated: July 6 2006 03:00
Dick Cheney never comes out well in New Yorker cartoons. Last week's issue depicts the vice-president as a gleeful zealot, hands clasped ecstatically together, as his chief aide, with a knowing gleam, shreds a copy of the US constitution. In the background, President George W. Bush looks on, eyebrows arched in curiosity.
The two men will have grown accustomed to this iconography of hubris. Since assuming office, Mr Cheney has led a calculated effort to restore the power of the presidency. In January 2002 he laid out his philosophy. "In 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. One of the things that I feel an obligation on - and I know the president does too - is to pass on our offices in better shape than we found them."
That ambition is now at risk. Last week, in Hamdan v Rumsfeld, the Supreme Court ruled that Mr Bush did not have the right to hold military commissions to try terror suspects held at Guantánamo Bay. More disturbingly for the president, it slapped downhis assertion that, as a wartimecommander-in-chief, he had the authority to exclude Congress from decisions concerning national security.
This court decision marks a defining moment in the Bush presidency. Not only does it dismantle some of the elaborate legal scaffolding he has erected since the attacks of 9/11 to prosecute the war on terror. It also potentially heralds a 1970s-style backlash against executive power, triggered by the perceived overreach of the last six years.
"The White House could be left with fewer powers than when Bush entered," says Bruce Fein, deputy attorney general in Ronald Reagan's administration. "Like President Nixon, Mr Bush's craving for an imperial presidency could bring his office to its ebb."
Other historical analogies can be drawn in a country where the powers of the presidency have traditionally waxed and waned. In his first term, Franklin D. Roosevelt drove a huge amount of legislation through a compliant Congress, says Fred Greenstein, professor of politics at Princeton. "Then he took a far-reaching step to change the structure of the Supreme Court, to stop the [judges] declaring his legislation unconstitutional. There was a rebellion. The proposal went nowhere. He achieved few substantial initiatives for the rest of hispresidency."
Other presidents suffered similar fates. "L.B. Johnson led the nation into Vietnam war, then faced not running for a second elected term. Richard Nixon talked about independent initiatives in his first term but then came Watergate and the demise of his presidency," he adds.
Congress reasserted itself in the wake of Vietnam and Watergate. In 1973, the War Powers Act was passed, forcing the president to give Congress a role in authorising similar conflicts. The legislature flexed its muscles again in 1974 when the Church committee, established to investigate alleged CIA dirty tricks in the 1960s and 1970s, asserted its authority over intelligence activities.
In the middle of this was Mr Cheney. As chief of staff under President Gerald Ford in 1975, he saw the power of the presidency diminished on his watch. By 1989, he had forged his own critique of Congressional overreach in foreign policy. "When Congress steps beyond its capacities, it takes traits that can be helpful to collective deliberation and turns them into a harmful blend of vacillation, credit claiming, blame avoidance and indecision," he warned. "The presidency, in contrast, was designed as a one-person office to ensure it would be ready for action," capable of "decision, activity, secrecy and dispatch".
Mr Cheney arrived at the White House in 2000 determined to avoid the "unwise compromises" made by presidents over the past three decades. For Mr Bush, the motivation has been more visceral. Shocked by the events of 9/11, he vowed he would do "whatever it takes" to defend the American people.
This interplay of ideological and intuitive motivations has played out in the war on terror. Recognising that congressional power is greatest at times of peace and presidential power at times of war, officials seized their opportunity.
The administration authorised the detention of American citizens as alleged illegal combatants; it denied the reach of the Geneva Convention in such cases; and it claimed that Congress could not limit the president's authority to use harsher interrogation techniques. Officials used Congress's authorisation for the use of military force after 9/11 to justify overriding legislation such as the Foreign Intelligence Surveillance Act (Fisa), allowing the National Security Agency to monitor the phone calls of suspectedterrorists.
Richard Epstein, an influential conservative legal theorist who also filed an amicus brief in the Hamdan case questioning the executive's view of the inherent powers of the commander-in-chief, sums up the results. "They wanted to claim commander-in-chief powers . . . but they engaged in the most extreme over-reading of the texts [the Federalist Papers, a source for interpretation of the constitution]. It takes your breath away. I had never seen anything like this . . . It was basically the assertion: 'nobody can stop me'. They did that with the Geneva Convention, with Fisa and the whole operation at Gitmo [Guantánamo]. And it changed the nature of the dialogue with Congress - because they did not have to bother to try to get legitimacy."
Mr Bush also used his belief that his office endows him with independent authority in other ways. For example, he has adopted a more aggressive posture towards overruling or ignoring bills sent to him by Congress for his signature. A study by the Boston Globe found that Mr Bush had used presidential "signing statements" to challenge the constitutional validity of more than 750 laws. While such statements can be used simply to set forth how the president intends to interpret legislation, Mr Bush has been accused of using them in a systematic way to expand presidential power.
"That's far more than all the signing statements signed by every single president from George Washington to Bill Clinton put together," said Patrick Leahy, a Democratic senator, during the hearing last week on these statements. "Basically, the president signs laws enacted by people's representatives in Congress, but he's crossing his fingers behind his back. And when he says he never had to make a veto, heck, why? He just signs laws saying he is not going to follow them."
While the Hamdan ruling will not, on its own, lead to the closure of Guantánamo Bay or end the president's right to hold those deemed to be unlawful combatants for the duration of hostilities, it could have far-reaching consequences.
Some legal scholars believe it could force changes to NSA surveillance. "He will lose on it. Bush had argued the inherent executive power was so great that Fisa is unconstitutional. That is just preposterous now [after Hamdan]. Being able to claim inherent authority is just over now and good riddance to it," says Mr Epstein.
John Yoo, a leading architect of the administration's legal policy, admitted defeat when he told the New York Times: "It could affect every aspect of the war on terror. It could affect detention conditions, interrogation methods, the use of force . . . the court is saying it is going to be a player now."
The court may have asserted itself, but will it be joined by the legislature? "The Supreme Court told Congress: you have the authority to check the president. It is up to Congress to decide if it wants to exercise that authority," says Mr Fein.
Over the last six years, the White House has faced little opposition in Congress. The Republican majority, who put national security at the core of their campaign in 2004, have been reluctant to undercut Mr Bush's authority. Moreover, the president has been aided by a fractured Democratic party.
Only a handful of Democrats have truly engaged with the issue, such as Senator Russ Feingold and Al Gore, the former vice-president. "Democrats have not put together a case in an effective way. They have been cowed by the White House and unwilling to make arguments about executive power," says Jim Pfiffner, professorof public policy at George MasonUniversity.
In March, when a Senate committee held hearings on Mr Feingold's motion to censure the president over the spying programme, only one other Democrat showed up.
Yet there are signs that Congress is starting to assert itself. The clearest example came last October, when senators defied the White House by voting by 90 to 9 for an amendment proposed by Republican Senator John McCain that puts limits on interrogation methods. Two weeks ago, the House voted narrowly against an effort to require the White House to comply with Fisa. Last week, after six years, the Senate judiciary committee finally held a hearing on presidential signing statements.
Arlen Specter, chairman of that committee, has grown steadily angrier. Last month he took the unusual step of making public a letter to Mr Cheney, citing concerns about the expansion of presidential power in areas such as the use of signing statements.
Mr Fein concedes that Congress has "not done nothing" but says "it is pretty skimpy. Mr Specter has vacillated. On a Monday he is very critical, and then he on Tuesday he takes back half of what he said . . . There have been a lot of pyrotechnics but on the substance, not much."
Indeed, for all the genuflection to constitutional niceties about the separation of powers, such criticism may become an unaffordable luxury as November's midterm elections approach. In spite of an initial outcry over the NSA spying issue, a majority of Americans support the wire-tapping policy and are not so outraged by assaults on the civil liberties of suspected terrorists.
While some Republicans may think Mr Bush overreached, national security has again become the chief way to differentiate themselves from Democrats. That requires them to stand by the president and argue that he was willing to make the tough legal choices in order to defend the American people.
That is why, in spite of the legal setback, many Republican strategists regard last week's Hamdan decision as good news. They have plans to draft legislation to support Mr Bush and give his administration the authority to try detainees before a military tribunal. The hope is that Democrats will be forced into the uneasy position of having to defend the rights of terror suspects to be tried in US courts. John Boehner, Republican leader in the house, has already hinted at the strategy, accusing Democrats of supporting "special privileges for terrorists".
Whoever wins that debate is likely to determine the state in which Mr Bush leaves the presidency.
But for aspiring Democratic presidential candidates, victory in that battle may look pyrrhic. That is one reason former Reagan lawyers such as Mr Fein are getting cold feet about Mr Bush's legacy: a Democrat could inherit a powerful White House.
By Caroline Daniel
Copyright The Financial Times Limited 2006
Published: July 6 2006 03:00 | Last updated: July 6 2006 03:00
Dick Cheney never comes out well in New Yorker cartoons. Last week's issue depicts the vice-president as a gleeful zealot, hands clasped ecstatically together, as his chief aide, with a knowing gleam, shreds a copy of the US constitution. In the background, President George W. Bush looks on, eyebrows arched in curiosity.
The two men will have grown accustomed to this iconography of hubris. Since assuming office, Mr Cheney has led a calculated effort to restore the power of the presidency. In January 2002 he laid out his philosophy. "In 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. One of the things that I feel an obligation on - and I know the president does too - is to pass on our offices in better shape than we found them."
That ambition is now at risk. Last week, in Hamdan v Rumsfeld, the Supreme Court ruled that Mr Bush did not have the right to hold military commissions to try terror suspects held at Guantánamo Bay. More disturbingly for the president, it slapped downhis assertion that, as a wartimecommander-in-chief, he had the authority to exclude Congress from decisions concerning national security.
This court decision marks a defining moment in the Bush presidency. Not only does it dismantle some of the elaborate legal scaffolding he has erected since the attacks of 9/11 to prosecute the war on terror. It also potentially heralds a 1970s-style backlash against executive power, triggered by the perceived overreach of the last six years.
"The White House could be left with fewer powers than when Bush entered," says Bruce Fein, deputy attorney general in Ronald Reagan's administration. "Like President Nixon, Mr Bush's craving for an imperial presidency could bring his office to its ebb."
Other historical analogies can be drawn in a country where the powers of the presidency have traditionally waxed and waned. In his first term, Franklin D. Roosevelt drove a huge amount of legislation through a compliant Congress, says Fred Greenstein, professor of politics at Princeton. "Then he took a far-reaching step to change the structure of the Supreme Court, to stop the [judges] declaring his legislation unconstitutional. There was a rebellion. The proposal went nowhere. He achieved few substantial initiatives for the rest of hispresidency."
Other presidents suffered similar fates. "L.B. Johnson led the nation into Vietnam war, then faced not running for a second elected term. Richard Nixon talked about independent initiatives in his first term but then came Watergate and the demise of his presidency," he adds.
Congress reasserted itself in the wake of Vietnam and Watergate. In 1973, the War Powers Act was passed, forcing the president to give Congress a role in authorising similar conflicts. The legislature flexed its muscles again in 1974 when the Church committee, established to investigate alleged CIA dirty tricks in the 1960s and 1970s, asserted its authority over intelligence activities.
In the middle of this was Mr Cheney. As chief of staff under President Gerald Ford in 1975, he saw the power of the presidency diminished on his watch. By 1989, he had forged his own critique of Congressional overreach in foreign policy. "When Congress steps beyond its capacities, it takes traits that can be helpful to collective deliberation and turns them into a harmful blend of vacillation, credit claiming, blame avoidance and indecision," he warned. "The presidency, in contrast, was designed as a one-person office to ensure it would be ready for action," capable of "decision, activity, secrecy and dispatch".
Mr Cheney arrived at the White House in 2000 determined to avoid the "unwise compromises" made by presidents over the past three decades. For Mr Bush, the motivation has been more visceral. Shocked by the events of 9/11, he vowed he would do "whatever it takes" to defend the American people.
This interplay of ideological and intuitive motivations has played out in the war on terror. Recognising that congressional power is greatest at times of peace and presidential power at times of war, officials seized their opportunity.
The administration authorised the detention of American citizens as alleged illegal combatants; it denied the reach of the Geneva Convention in such cases; and it claimed that Congress could not limit the president's authority to use harsher interrogation techniques. Officials used Congress's authorisation for the use of military force after 9/11 to justify overriding legislation such as the Foreign Intelligence Surveillance Act (Fisa), allowing the National Security Agency to monitor the phone calls of suspectedterrorists.
Richard Epstein, an influential conservative legal theorist who also filed an amicus brief in the Hamdan case questioning the executive's view of the inherent powers of the commander-in-chief, sums up the results. "They wanted to claim commander-in-chief powers . . . but they engaged in the most extreme over-reading of the texts [the Federalist Papers, a source for interpretation of the constitution]. It takes your breath away. I had never seen anything like this . . . It was basically the assertion: 'nobody can stop me'. They did that with the Geneva Convention, with Fisa and the whole operation at Gitmo [Guantánamo]. And it changed the nature of the dialogue with Congress - because they did not have to bother to try to get legitimacy."
Mr Bush also used his belief that his office endows him with independent authority in other ways. For example, he has adopted a more aggressive posture towards overruling or ignoring bills sent to him by Congress for his signature. A study by the Boston Globe found that Mr Bush had used presidential "signing statements" to challenge the constitutional validity of more than 750 laws. While such statements can be used simply to set forth how the president intends to interpret legislation, Mr Bush has been accused of using them in a systematic way to expand presidential power.
"That's far more than all the signing statements signed by every single president from George Washington to Bill Clinton put together," said Patrick Leahy, a Democratic senator, during the hearing last week on these statements. "Basically, the president signs laws enacted by people's representatives in Congress, but he's crossing his fingers behind his back. And when he says he never had to make a veto, heck, why? He just signs laws saying he is not going to follow them."
While the Hamdan ruling will not, on its own, lead to the closure of Guantánamo Bay or end the president's right to hold those deemed to be unlawful combatants for the duration of hostilities, it could have far-reaching consequences.
Some legal scholars believe it could force changes to NSA surveillance. "He will lose on it. Bush had argued the inherent executive power was so great that Fisa is unconstitutional. That is just preposterous now [after Hamdan]. Being able to claim inherent authority is just over now and good riddance to it," says Mr Epstein.
John Yoo, a leading architect of the administration's legal policy, admitted defeat when he told the New York Times: "It could affect every aspect of the war on terror. It could affect detention conditions, interrogation methods, the use of force . . . the court is saying it is going to be a player now."
The court may have asserted itself, but will it be joined by the legislature? "The Supreme Court told Congress: you have the authority to check the president. It is up to Congress to decide if it wants to exercise that authority," says Mr Fein.
Over the last six years, the White House has faced little opposition in Congress. The Republican majority, who put national security at the core of their campaign in 2004, have been reluctant to undercut Mr Bush's authority. Moreover, the president has been aided by a fractured Democratic party.
Only a handful of Democrats have truly engaged with the issue, such as Senator Russ Feingold and Al Gore, the former vice-president. "Democrats have not put together a case in an effective way. They have been cowed by the White House and unwilling to make arguments about executive power," says Jim Pfiffner, professorof public policy at George MasonUniversity.
In March, when a Senate committee held hearings on Mr Feingold's motion to censure the president over the spying programme, only one other Democrat showed up.
Yet there are signs that Congress is starting to assert itself. The clearest example came last October, when senators defied the White House by voting by 90 to 9 for an amendment proposed by Republican Senator John McCain that puts limits on interrogation methods. Two weeks ago, the House voted narrowly against an effort to require the White House to comply with Fisa. Last week, after six years, the Senate judiciary committee finally held a hearing on presidential signing statements.
Arlen Specter, chairman of that committee, has grown steadily angrier. Last month he took the unusual step of making public a letter to Mr Cheney, citing concerns about the expansion of presidential power in areas such as the use of signing statements.
Mr Fein concedes that Congress has "not done nothing" but says "it is pretty skimpy. Mr Specter has vacillated. On a Monday he is very critical, and then he on Tuesday he takes back half of what he said . . . There have been a lot of pyrotechnics but on the substance, not much."
Indeed, for all the genuflection to constitutional niceties about the separation of powers, such criticism may become an unaffordable luxury as November's midterm elections approach. In spite of an initial outcry over the NSA spying issue, a majority of Americans support the wire-tapping policy and are not so outraged by assaults on the civil liberties of suspected terrorists.
While some Republicans may think Mr Bush overreached, national security has again become the chief way to differentiate themselves from Democrats. That requires them to stand by the president and argue that he was willing to make the tough legal choices in order to defend the American people.
That is why, in spite of the legal setback, many Republican strategists regard last week's Hamdan decision as good news. They have plans to draft legislation to support Mr Bush and give his administration the authority to try detainees before a military tribunal. The hope is that Democrats will be forced into the uneasy position of having to defend the rights of terror suspects to be tried in US courts. John Boehner, Republican leader in the house, has already hinted at the strategy, accusing Democrats of supporting "special privileges for terrorists".
Whoever wins that debate is likely to determine the state in which Mr Bush leaves the presidency.
But for aspiring Democratic presidential candidates, victory in that battle may look pyrrhic. That is one reason former Reagan lawyers such as Mr Fein are getting cold feet about Mr Bush's legacy: a Democrat could inherit a powerful White House.
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