The National Catholic Review
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It is now demonstrably clear that the president of the United States has subverted the rule of law in this country. The final confirmation came in April, when George W. Bush at last revealed the extent of his own involvement in approving the torture of our nation’s enemies. In an interview with ABC News, the president confirmed that in 2003, his top advisors, including Vice President Dick Cheney, met in the White House to discuss the specific procedures to be used for the interrogation of suspected terrorists. Mr. Bush indicated for the first time that he personally approved the interrogation procedures, which included the now infamous technique known as waterboarding. The president added that he did not think that these “enhanced interrogation techniques” were illegal and that he was “not sure what was so startling about” his admission.

Indeed, there is little that is startling about it. For over seven years, the administration has single-mindedly and with strident resolve sought to expand the power of the presidency beyond its constitutional limits. This administration’s modus operandi has been the unitary executive theory, a constitutional fiction repeatedly invoked to prohibit almost any judicial or legislative check on the powers of the president as commander in chief.

The U.S. Constitution limits the powers of the federal government as much as, if not more than, it specifies them. Changes in the balance of power among the various constitutional actors, therefore, constitute a zero-sum game; in order for someone to win, someone else must lose. As Mr. Bush plays the game, there are many losers and one big winner. The president’s power gains have come at great cost to the constitutional prerogatives of the legislative and judicial branches, which have frequently acquiesced in Mr. Bush’s consolidation of power, as well as at the expense of the civil liberties of American citizens and the human rights of our designated enemies.

Torture. Euphemisms are handy tools for dehumanizing people and for avoiding the appearance of illegality. The Bush administration deploys them with aplomb. “Enhanced interrogation techniques,” “rough interrogation” and “stress positions” are just a few of the code words the White House uses to describe its illegal and immoral torture of our fellow human beings, including, according to one published report, “a combination of painful physical and psychological interrogation tactics, including head slapping, frigid temperatures and simulated drowning.”

No one denies that these are unusually dangerous times, which call for unconventional approaches to our national security and a vigilant prosecution of international terrorism. In its pursuit of the “evil-doers,” however, as Mr. Bush has described the terrorists, the United States has itself done evil. Through the intentional infliction of “severe pain or suffering, whether physical or mental” in the process of intelligence gathering, the United States has violated the U.N. Convention Against Torture, the Geneva Conventions, at least four federal statutes and the spirit of the U.S. constitutional prohibition on “cruel and unusual punishment.”

Senator John McCain, who as a former prisoner of war has spoken in the past with unique credibility on the issue, has also denounced the use of torture as both immoral and impractical: information obtained through torture is famously unreliable and invites retaliation against captured U.S. personnel. The use of torture also displaces the United States from the moral high ground. Americans are told that the so-called war on terror is a defense of human freedom and liberal democracy. But liberal democracy rests on the twin pillars of human rights and the rule of law. That other human beings have made themselves our adversaries does not justify the theft of their human rights, however odious their actions.

We know a great deal now about what this administration has done in the name of American citizens, including its system of extrajudicial interrogations in foreign lands, known by the euphemism “rendition,” as well as its willful imprisonment of known innocents. What we do not know is what the administration is currently doing. Congress has been too reluctant to assert its constitutional rights for fear of being called soft on terror. The House of Representatives in March failed to override Mr. Bush’s veto of legislation that would have codified into U.S. law the interrogation procedures outlined in the U.S. Army Field Manual. This is still the most reasonable and just solution. Congress should continue to pursue restrictions on interrogations and must now, at a minimum, demand a full accounting of current U.S. interrogation practices for suspected terrorists.

Habeas corpus. The procedure that allows detainees to protest unlawful, indeterminate imprisonment before an impartial judge, known as habeas corpus, is a constitutive element of the rule of law. In late 2006, the outgoing Republican Congress passed the Military Commissions Act, which provided, among other troubling provisions, that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States,” when he or she had been properly detained. This extraordinary provision created military commissions as a parallel judicial system, in which the executive branch is both judge and jury, resulting in a grave violation of the constitutional principle of separation of powers.

The progress of these commissions has also been uneven. Even now, more than two months after military officials announced war crimes charges against six detainees at Guantánamo, the prisoners have yet to meet with their military lawyers. This makes it increasingly likely that none of these cases will come to trial before the end of Mr. Bush’s presidency. In response to the charge that “justice delayed is justice denied,” a Pentagon spokesman recently said the military has “gone to great lengths to provide a system that is full, fair and just.” If so, why is the administration afraid to try these people in U.S. courts? Is not our legal system the envy of the world?

Domestic spying. Mr. Bush has repeatedly used the threat of terrorist attacks to strong-arm his way to a more robust use of presidential power. These fear tactics were again employed in the recent debate over the Foreign Intelligence Surveillance Act (FISA), the 1978 law that regulates domestic spying by federal agencies. Mr. Bush argued that allowing the law to expire would endanger the national security of the United States. Yet, tellingly, he preferred to let it expire rather than negotiate with Congress, indignantly insisting on his version of the bill, which would have allowed surveillance of American citizens without a court warrant. Mr. Bush was also seeking immunity from prosecution for the telecommunications companies that participated in his illegal spying program after the terrorist attacks of Sept. 11, 2001, seeking this immunity without revealing to Congress and the American people exactly what the companies had done.

If domestic surveillance is necessary, U.S. citizens deserve the full protection of the law and the assurance that such actions will be approved and monitored by competent judges independent of the executive branch. If Congress is to authorize this activity, it should demand a full accounting of every surveillance program and should continue to insist on the constitutional rights of the legislative and judicial branches. This is of paramount importance, given the abuses that have occurred. An internal Justice Department report in March 2007, for example, identified over 100 violations of federal wiretapping laws by the Federal Bureau of Investigation. Published reports indicate that the violations continued through 2006, after the F.B.I. instituted new internal procedures designed to prevent further violations of privacy.

Signing statements. To facilitate his consolidation of power, President Bush has relied heavily on an obscure and, until 2001, largely benign instrument of presidential communication known as a signing statement. This is a letter attached to a law when the president signs it that conveys the president’s reasons for approving the law or states his view of its constitutionality in the event of a challenge to the law in court. Every president since James Monroe has used signing statements. Yet Mr. Bush has used them to subvert basic constitutional procedures by declaring in the statements which provisions of a law he will enforce and which he will not. His constitutional obligation to ensure that “the laws be faithfully executed,” meanwhile remains unfulfilled, while he implicitly ignores the U.S. Supreme Court’s exclusive right to judge the constitutionality of a law.

Mr. Bush has indicated in various signing statements his unwillingness to enforce nearly 1,000 provisions of federal laws that he believes infringe upon his rights and powers as president. The presidential candidates have weighed in on the issue. Senators Obama and Clinton have both indicated that they would return to the traditional, narrower use of signing statements. Senator John McCain has a better idea. He has vowed that as president he would not use signing statements at all, but give every bill a straight-up signature or veto. This would do much to restore accountability and proper constitutional procedures to federal lawmaking.

Still, too little has been said by the presidential candidates about Mr. Bush’s abuses of power. That is unfortunate, for the first priority of the next chief executive must be to restore the rule of law envisioned by America’s founders by dismantling Mr. Bush’s neo-imperial presidency. “The aim of the patriots,” John Stuart Mill once remarked, “was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.”

Comments

ROBERT HANLON | 5/2/2008 - 7:36pm
Very well said, thank you! If Jeremiah Wright had taken this direction instead of his rant, he could well have contributed to the ongoing dialog about our government's use of power. Keep up the good work.
M. Keelan | 4/21/2008 - 12:09am
This editorial is one of the more extraordinary and courageous pieces of writing I have read in America or elsewhere on this unfortunate topic. Is there a forum anywhere that will discuss it and with this degree of thoughtfulness and honest statement? The challenge to current candidates is most appropriate. This editorial should be emailed to them by anyone who reads it and who resonates with its thoughtful articulation of the current state of affairs in our country. The editors of America should make every effort to get such an essay into a more public forum. Are there any philanthropic persons out there who could underwrite its reproduction in the New York Times, USA Today, etc.? It provokes a dialogue among concerned persons that is long overdue. It also testifies to the culpability of all of us in allowing our country and its current leaders to lead us down such a demonic trail. Some amazing grace is needed and soon.
ANDY GALLIGAN | 4/20/2008 - 6:41pm
The award winning documenary Taxi To The Dark Side points out that the overwhelming majority of the Afghan prisoners the U.S. holds without the right of habeas corpus and subject to officially approved "rough interrogation" were captured by Pakastani and Northern Alliance warlords who were being paid handsomely by the U.S. government for ANY person they turned over to our forces, irregardless of their guilt or innocence. It is chilling to hear our President saying in that film after 9/11 that we will show those people what American justice is! And still our officials solemnly pledge daily "with liberty and justice for all." I am as ashamed of our behavior toward many terrorist suspects as the Pope has said he is of our sexual abuse scandal. Some justify our actions. I don't. Evil means have never justifed righteous goals.
lLetha Chamberlain | 4/20/2008 - 5:33pm
I have two comments about Mr. Bush's antiConstitutional activities over his Presidency. 1) If our culture were not so prone to being "terror-struck" we would not be having this problem with a "war on terror" (for many diverse reasons mainly having to do with our dependence on getting information from mass media) and he would not be having his easy way getting us to comply with his reasoning that this is necessary 2) We were warned this was happening by good leaders whom we spurned because of the mass media's rampaging--who also asked us to take impeachment actions long ago... which we dumbly ignored. So who's to blame but ourselves... and we still CAN do something about it--watch where we get our information AND don't fall for the quirks of mass media.
Kathy Pesta | 4/20/2008 - 12:29pm
Hubris. Pure hubris. The result of arrogance coupled with ignorance. What a sad disaster it has all been.
Christopher Kelley | 4/19/2008 - 8:33pm
Despite what the critics say or believe, there was nothing "benign" about the way previous presidents used the signing statement, including Bush's predecessor, Bill Clinton. Your article on President Bush's abuse of presidential power, and specifically his use of the signing statement, has a number of errors with it. First, President Bush has not used the signing statement any differently than his predecessors. And since 1981, the start of the Reagan presidency, the presidents have challenged defective provisions of law. In fact, President Clinton's Justice Department went on record, with two opinions, defending the president's obligation to use the signing statement to refuse defense or enforcement of constitutionally repugnant provisions of law. The only difference between them and the Bush administration is quantity--President Bush has issued nearly 1,200 challenges since 2001, a record to be sure. Second, the Supreme Court does not have an "exclusive right to judge the constitutionality of a law." By giving the Supreme Court "final say," you have unbalanced our system of co-equal branches, creating a "first among equals." The President's "Oath clause" commands that he "preserve, protect, and defend" the Constitution. Thus the president--as well as the Congress and the courts--may "independently" interpret the meaning of the Constitution. Third, if you listen to Senators Clinton and Obama carefully, you should pay attention to how they qualify their statements regarding the use of the signing statement. Each claim they will use the signing statement, but not in the way that President Bush uses them, to subvert the law and the Constitution. What does that mean, exactly? They will continue to use the signing statement, but not to defend the groups or ideals that President Bush does? Mrs. Clinton has claimed a use of the signing statement similar to her husband's use, but President Bush used the signing statement to protect HIV positive military personnel from being terminated from the service, to protect abortion rights policies, and to refuse the addition of an office within the Department of Energy that had independence from the President. There were many in the Republican Congress who were aghast over Clinton's actions. And Senator McCain has made a "No New Taxes" claim when he promised he would never use a signing statement. That will simply be impossible. The signing statements will come to him from the Department of Justice as well as various agencies and departments inside the Executive Branch. Many serve a very useful purpose to reach out to important constituencies as well as to go on record not to accept violations of the president's prerogatives. For instance, during World War II, the Congress gave President Roosevelt a must-sign military bill that contained a provision that punished a few State Department employees. President Roosevelt signed the bill, but attacked the provision as unconstitutional, which the Supreme Court agreed with in U.S. v Lovett (1946). The real culprit in the President's use (or abuse) of power, which you rightly note yet do not dwell upon, is the Congress (and to a lesser extent the courts). You write: "The president's power gains have come at great cost to the constitutional prerogatives of the legislative and judicial branches, which have frequently acquiesced in Mr. Bush's consolidation of power..." From 2001-2006, the Republicans who controlled the Congress gave the president whatever he desired, declaring itself to be a junior partner to the president. We must continue to support the Democrats in Congress who have increased the number of oversight hearings plus its direct challenges to the president. You owe it to your readers to give them information that is accurate so that they may adequately understand the nature of presidential power, both historically and now in the 21st century.
Mike Pennett | 4/19/2008 - 7:10pm
Why is impeachment not being considered for Bush and Cheney, in consideration of these and all the other serious actions they have committed?
patrick hughes | 4/19/2008 - 2:58pm
Your editorial could not be more correct. Unfortunately it falls on deaf ears in the United States, and I assume on Catholic ears. Part of the problem is illustrated in Pope Benedict's visit. He has a lovely time with George Bush, and never says a word. He goes to the UN and touts human rights, but never mentions the legalization of torture in the US. You write an editorial, but where is there a joint Bishops statement to Catholics and Christians calling for a national response in the name of Christ? In what church on Sundays is there a Christian witness to the victims of our war in Iraq? Why? Because this would divide the Church! So we all go along to get along. This is not the path of Christ who did not come to bring a wishy-washy lukewarm faith that was no more than a Protestant private affair and a private choice of a private conscience.
ROBERT ROWDEN | 4/18/2008 - 8:44pm
While I agree with your editorial "Abuse of Power", I believe that when it comes to consolidation of power the President is a rank amateur in comparison with Pope John Paul II. The late Pope managed to stiffle legitimate dissent from qualified theologians, emasculate the national bishops conferences, and appoint a large contingent of docile compliant prelates whose performance ranged from mediocre to frankly criminal. Would that the church structure had a constitutional restraint on such monarchial discretion.
Bob | 4/18/2008 - 4:13pm
It won't matter what the president admits to. He could say (admit?) that he helped engineer 9-11, and it wouldn't matter. If the events of 9-11 were equivalent to the Reichstag fire of Germany, and the Patriot Act was the same thing as the Nazi's Enabling Act, it still wouldn't matter. And if "Homeland Security".... And if "Free Speach Zones".... And if "Torture".... You get the idea. At some point our country has tumbled into a state of fascism. It will have to go bankrupt before we can fix it.
LEONARD VILLA | 4/18/2008 - 1:29pm
The idea that this President is expanding the power of the presidency in unprecendented fashion is unhistorical. Take a look at FDR's actions before and during World War II or Lincoln's actions during the Civil War. I am also not convinced that you believe our country is at war with an enemy that is bent on destroying us. This involves a blind appeasement mindset exemplified by Neville Chamberlain blathering about "peace in our time" or 60's "all we are saying is give peace a chance" that the communists laughed at. That being said you rightly raise the issue of torture and US interogation techniques to avoid the application of the end justifies the means. How prevalent these techniques were/are is an issue given descriptions of conditions at GITMO where inmates are provided with Korans and opportunities to practice their religion,exercise, while they abuse and spit at the guards at every opportunity.

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