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Bush’s Bogus Theory of Absolute Power


The Bush administration has a theory to explain why the Founding Fathers secretly intended for the president to have boundless power. Even though the new unitary executive theory is nowhere in the Constitution, White House officials continually invoke it to justify scorning federal law. The fact that the administration is getting away with this charade symbolizes how docile much of the American media and political opposition have become.

Earlier this year, members of Congress anguished publicly over how many of the original USA PATRIOT Act surveillance powers should be renewed. A bipartisan agreement was finally reached, giving the White House almost everything it wanted. As part of the deal to renew the Patriot Act, Bush administration officials agreed to provide Congress more details on how the new powers were being used.

However, Bush reneged in a signing statement quietly released after a heavily hyped White House signing ceremony on March 9. He decreed that he was entitled to withhold any information that would impair foreign relations, national security, the deliberative process of the executive, or the performance of the executives constitutional duties. He announced that he would interpret any provision in the law obliging notifying Congress in a manner consistent with the presidents constitutional authority to supervise the unitary executive branch and to withhold information.

In other words, any provision of the law that requires disclosure is presumptively null and void. The crux of the unitary executive is that all power rests in the president, and that checks and balances are an archaic relic. This is the same principle the Bush administration invoked to deny Congress everything from Iraqi war plans to the records of the Cheney Energy Task Force. Bush has invoked the unitary executive doctrine almost a hundred times since taking office, according to a study by Miami University professor Christopher Kelley.

One of the starkest statements of this theory came in the confidential August2002 Justice Department/White House memo justifying torture. That memo revealed, In light of the presidents complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the presidents ultimate authority in these areas. And even if Congress did try to explicitly restrain executive power, any such law would be unconstitutional because of the inherent power vested in the presidency, according to the memo. When he was White House counsel, Alberto Gonzales spoke of a commander-in-chief override to justify scorning the Anti-Torture Act.

The Bush administrations sense of entitlement is obvious from the ongoing controversy over warrantless National Security Agency wiretaps of Americans. Such wiretaps are clearly prohibited by the 1978 Foreign Intelligence Surveillance Act. Yet Bush declared that he is entitled to order such wiretaps because of the inherent authority of the presidency.

The administrations attitude toward both the law and Congress was stark in the responses recently delivered to congressional questions on the scope and nature of the NSA warrantless wiretap program.

The basic answer to almost all the questions was, None of your business. Again and again, the White House declared that decisions about what communications to intercept are made by professional intelligence officers. Apparently, the job titles of the NSA officials automatically negate the Fourth Amendments requirement for a warrant before the feds can intrude.

The Bush administration has claimed that the wiretaps are legal because of the presidents duty to protect America. Democratic members of the House Judiciary Committee asked, What is the limiting principle of the presidents claimed inherent authority as commander in chief?

The administration replied, In light of the strictly limited nature of the Terrorist Surveillance Program, we do not think it a useful or a practical exercise to engage in speculation about the limits of the presidents authority as commander in chief. There is no reason to accept that the program is strictly limited because Bush in 2004 publicly declared that no wiretaps could be done without a court order. The administration has done nothing since then to signal greater respect for the truth. And Attorney General Alberto Gonzaless written responses to Senate Judiciary Committee questions hinted that there may be other surveillance programs not yet revealed to the public.

The Bush White House also asserted that the September2001 Authorization to Use Military Force resolution passed by Congress after 9/11 entitled Bush to tap Americans phones. But if the authorization actually entitled the president to do whatever he thinks necessary on the home front, then Americans have been living under martial law for the last four and a half years.

At this point, Americans can only guess which laws Bush feels obliged to obey. According to Newsweek, Steven Bradbury, head of the Justice Departments Office of Legal Counsel, recently informed the Senate Intelligence Committee that Bush could order killings of suspected terrorists within the United States.

Americans cannot expect to have good presidents if presidents are permitted to make themselves czars. The unitary executive theory is simply another in a long series of intellectual cons crafted to trample freedom. The sooner that it is tarred and feathered and ridden out of Washington on a rail, the safer Americans remaining rights will be.

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.