Takeover, page 40
Business groups hailed Bush’s executive order, saying that it was the most aggressive attempt by any president yet to reduce burdensome new regulations. Critics charged that Bush was seeking to reward special interests by choking off new rules opposed by corporate interests.44 But beyond the policy debate, there was no doubt about one thing: The order represented a significant expansion of presidential power. As Peter L. Strauss, a professor at Columbia Law School, told one reporter, the executive order “achieves a major increase in White House control over domestic government.” He added, “Having lost control of Congress, the president is doing what he can to increase his control of the executive branch.”45
13
The Politics of Presidential Power
1.
At just past lunchtime on Wednesday, September 6, 2006, President Bush stepped to a podium in the East Room of the White House to loud applause. Behind the president stood row upon row of American flags, and assembled before him were such officials as Vice President Cheney, Attorney General Alberto Gonzales, and Central Intelligence Agency director Michael Hayden, along with Republican leaders in Congress and some family members of victims of the 9/11 attacks. As news channels transmitted his image around the world, Bush spoke steadily for thirty-seven minutes, delivering a series of momentous announcements.1 The president acknowledged for the first time that the CIA had been running secret overseas prisons for high-value captives in the war on terrorism. The prisoners had been kept hidden from the Red Cross and subjected, in the president’s words, to “an alternative set of procedures” by their interrogators. Bush said the program was “one of the most vital tools in our war against the terrorists,” but for now it was being put on hiatus. All fourteen of the CIA’s current prisoners—including the accused mastermind of 9/11, Khalid Sheikh Mohammed—had just been transferred to military custody at Guantánamo, and they would now be granted Red Cross visits. (Bush made no mention of other prisoners who were believed to have been in the CIA’s custody; Human Rights Watch would later identify more than forty missing CIA prisoners whose fate was unknown; most were presumed to have been handed off to foreign governments.) Nevertheless, the president quickly insisted, nothing that the U.S. government had previously done to the prisoners was illegal under “our laws, our Constitution, and our treaty obligations,” and he reserved the option to put more prisoners in the CIA’s hands in the future.
“This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers,” Bush said. “They’ve determined it complied with our laws.”
Bush also said that the fourteen former prisoners of the CIA would be put on trial for their alleged crimes as soon as Congress enacted a bill he was sending over that very day, the Military Commissions Act of 2006. One of the things the administration’s bill would do, if it became law, was roll back the Supreme Court’s two-month-old Hamdan v. Rumsfeld decision. Although five justices had declared that Bush’s original military commission trials were illegal and ordered them to be shut down, they had also suggested that some form of military commissions would be legal under certain conditions. One such condition, the Supreme Court had said, was the president’s getting explicit permission from Congress before setting them up.
“Today, I’m sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes,” Bush said. “… We’re now approaching the five-year anniversary of the 9/11 attacks—and the families of those murdered that day have waited patiently for justice. Some of the families are with us today—they should have to wait no longer.”
After the audience broke into another round of applause, Bush revealed that the administration hoped the Military Commissions Act would go beyond trials. It turned out that the White House wanted to erase another part of the Hamdan ruling as well. One of the reasons the Supreme Court had decided that Bush’s military commissions were illegal was that the draconian trial rules violated a section of the Geneva Conventions requiring wartime courts to give defendants all the procedural rights “which are recognized as indispensable by civilized peoples.” This holding meant that the Geneva Conventions restricted the president’s options in the war on terrorism after all, contrary to the opinion of the Bush-Cheney legal team, and it had sweeping implications.
The same section of the Geneva Conventions that requires fair trials, as noted earlier, also bans “cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” Thus, from the moment the Hamdan ruling made clear that the Geneva Conventions applied after all, any U.S. official who inflicted harsh interrogation tactics on detainees, and any Bush-Cheney administration figure who signed off on that treatment, might be considered a war criminal. Bush now announced that he wanted Congress, in the Military Commissions Act, to take that possibility off the table. “Some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act—simply for doing their jobs in a thorough and professional way,” he said. “This is unacceptable. So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror.”
Wrapping up, Bush called upon Congress to pass the bill within the next few weeks, before lawmakers went home to finish campaigning for the midterm election. He explained that “the need for this legislation is urgent” and that “time is of the essence.”
Political analysts said that Bush’s move was a masterstroke. In just two months Americans were scheduled to go to the polls for midterm elections. Polls showed that Republican candidates were in trouble. The increasingly unpopular war in Iraq, the flawed response to Hurricane Katrina, spreading corruption scandals, and runaway pork barrel spending were combining to put Democrats within striking distance of retaking at least one chamber of Congress. By launching a new fight over granting dramatic powers to the president for use in the war on terrorism, Republican strategists hoped to change the subject on the eve of the vote—reuniting their party and once again portraying Democrats as weak on national security.
Sensing the political danger, Democrats stayed on the sidelines during the next three weeks, largely letting Republicans debate among themselves about what should be in the Military Commissions Act. But in late September, when the House of Representatives passed the bill, 160 Democrats—including all of the party’s House leadership—voted against it. Immediately, as the pundits had predicted, Republicans pounced, seeking to use the vote to define the differences between the two parties in the starkest terms: The GOP backed strong presidential powers necessary to keep terrorists from destroying America, while Democrats were willing to put the security of the nation at risk by hamstringing the commander in chief. “Republicans are committed to ensuring the president has every resource at his disposal to stop terrorist plots and protect the American people,” said House majority leader John Boehner, Republican of Ohio, immediately after the vote. “It is outrageous that House Democrats, at the urging of their leaders, continue to oppose giving President Bush the tools he needs to protect our country.”2 And at a campaign stop the next day, Bush delivered a fiery partisan speech declaring that congressional Democrats’ distrust of executive power made them weak and unworthy of voters’ faith. As the commander in chief, Bush announced, his “most solemn duty… is to protect the American people.” But the Democrats, he said, were unwilling to give “those responsible for defending you… all the tools necessary to do so.”3
2.
Ambitious presidents do not always have to resort to seizing extra power through secret and complex legal maneuvers. Under the right conditions, Congress sometimes willingly cedes extraordinary new authority to the White House. That extra power can become a permanent addition to the president’s arsenal, even after political support for it in Congress and among the public has fallen away.
This “politics of presidential power” draws strength from two potential factors. First, when the same political party controls both Congress and the White House, the president is the party leader of the leaders of the legislative branch. This can make Congress behave more like a subordinate and deferential arm of the executive branch than like the independent and coequal institution the Founders intended it to be. Second, when there are pervasive fears about grave and imminent threats to national security, both the public and Congress historically have tended to be more willing to grant the president extra powers in order to protect the country—powers that later the president may not be willing to put down again, especially if it is still unclear whether the crisis is over. Both of these factors came into alignment during the first six years of the Bush-Cheney administration.
When Bush took the oath of office on January 20, 2001, the Republican Party found itself in full control of the White House and Congress for the first time since 1954. With the exception of a brief moment in the Senate (after Senator Jim Jeffords of Vermont left the Republican Party in mid-2001, giving Democrats a razor-thin majority in the Senate until the 2002 election), one-party rule prevailed in Washington until 2007. This extended partisan hegemony undercut a central pillar of the Founders’ plan for maintaining the constitutional balance between the branches of government: Pride and ego would ensure that officials in each branch would resist encroachments by the other on their own institutional turf. “Ambition must be made to counteract ambition,” James Madison explained in the Federalist Papers.4 But as Thomas Mann and Norman Ornstein argued in their 2006 book The Broken Branch, the leaders of the Republican Congress saw themselves “as field lieutenants in the president’s army far more than they [did] as members of a separate and independent branch of government,”5 allowing party to trump institution. “The arrival of unified Republican government in 2001 transformed the aggressive and active GOP-led Congress of the Clinton years into a deferential and supine body, one extremely reluctant to demand information, scrub presidential proposals, or oversee the executive,” they observed.6
One-party control of government alone, however, does not fully explain what happened from 2001 to 2006. After all, the United States had also seen one-party rule during the first two years of the Clinton administration, but Congress then retained a sense of independence from the White House’s agenda—rejecting Clinton’s health-care proposals, for example. One important difference is that Democrats had continuously controlled one or both chambers of Congress for four decades by 1993, so congressional leaders identified strongly with their institutional role and had the self-confidence that comes from feeling permanently entrenched in power. In 2001, by contrast, Republicans had controlled Congress for just six years. Moreover, their hold was tenuous, with only tiny majorities in both chambers and a brief loss of Senate control in 2002. Led by such avowedly partisan figures as House majority leader Tom DeLay of Texas, the GOP Congress responded to its precarious standing with a strategy of marching in lockstep in order to pass uncompromisingly conservative bills without much Democratic support. Such a tactic demanded strong centralized control of Congress by party leadership, giving Bush, as the head of the Republican Party, more leverage over the congressional majority than Clinton had enjoyed as leader of the Democratic Party in 1993–1994.
But the most dramatic factor bolstering the wholesale obeisance to the president by the Republican Congress was 9/11 and the subsequent wars in Afghanistan and Iraq. Clinton took office after the Cold War had ended, significantly diminishing his political standing as the official most responsible for defending the nation from foreign attack. But the sudden murder of nearly three thousand civilians on U.S. soil on 9/11 unleashed a new climate of extraordinary fear and uncertainty across the United States, recharging the office Bush held with full wartime prominence. Like many periods of national security emergency, the war on terrorism proved to be conducive to the logic of strongman politics: The stronger the president, the safer America supposedly would be.
Recognizing the political benefits that naturally accrue to a wartime leader, the Bush-Cheney White House went to great efforts to emphasize the president’s role as commander in chief. “I’m a war president,” Bush declared in the midst of the 2004 election, and he referred to his role as the commander in chief constantly when he gave political speeches around the country.7 Examples of this were everywhere. When the president traveled outside Washington and wore more casual clothes, he was often photographed wearing a jacket with his name and the title “Commander in Chief ” embroidered on its front. When Bush landed aboard an aircraft carrier off San Diego on May 1, 2003, and proclaimed the end of major combat in Iraq beneath a “Mission Accomplished” banner, both his flight suit and the navy plane flying him were emblazoned with the words “George W. Bush Commander-in-Chief.”8 Emulating a theatrical move made popular by Ronald Reagan, Bush always exchanged salutes with his marine honor guard when boarding a helicopter on the White House lawn. Yet, as the historian Garry Wills has pointed out, “Dwight Eisenhower, a real general, knew that the salute is for the uniform, and as president he was not wearing one. An exchange of salutes was out of order.”9
Wills, writing in 2007, also lamented the increasing use of the constitutionally incorrect phrase “our commander in chief” or “the commander in chief of the United States” as synonyms for “the president.” The Constitution makes the president the commander in chief only of the members of the armed forces, not of the nation’s civilian population. As Wills noted: “The representative is accountable to citizens. Soldiers are accountable to their officer. The dynamics are different, and to blend them is to undermine the basic principles of our Constitution.” That distinction had begun breaking down during the Cold War, as presidents of both parties fostered a cult of authority based around the sense that everyone had a patriotic duty to support the wartime leader. The war on terrorism allowed the Bush-Cheney White House and its supporters to revive and expand this theater of the president as everyone’s “commander in chief,” equating the president with both the military and the nation’s security, and diminishing criticism of the president’s policies as essentially unpatriotic and borderline treasonous. At the 2004 Republican National Convention, for example, Georgia senator Zell Miller, the erstwhile Democrat turned full-throated Bush supporter, thundered, “While young Americans are dying in the sands of Iraq and the mountains of Afghanistan, our nation is being torn apart and made weaker because of the Democrats’ manic obsession to bring down our commander in chief.”10
The Republican majorities in both chambers were driven by a desire to see the leader of their party succeed, by their need to march in lockstep in order to achieve partisan ends without having to compromise with Democrats, and by the sometimes overwhelming dynamic of wartime deference to “our commander in chief.” For the nearly six years that these factors stood in alignment—a perfect storm of political pressures—Congress made only muted protests as the White House systematically accumulated greater powers, and at key moments Congress rallied around the president to pass legislation enabling the executive branch to consolidate and lock down its gains.
3.
In the years that followed 9/11, Congress often proved eager to hand the Bush-Cheney administration new powers when the White House asked for them. Shortly after the attacks, overwhelming bipartisan majorities had approved war on Al Qaeda and passed the USA Patriot Act. On the eve of the 2002 midterm election, Congress had gone along when Bush asked them to delegate to him the power to decide whether to attack Iraq if diplomacy later failed. After that election, lawmakers had passed the White House’s version of the Homeland Security Act, giving presidential appointees the power to make personnel decisions about employees at the new department without the usual federal worker protections. And as the Iraq war had begun to go poorly and scandals such as Abu Ghraib arose, the GOP-led Congress had kept a light touch on its oversight hearings rather than holding the executive branch’s feet to the fire.
The year 2006—the final year of one-party rule in Washington—would bring the politics of presidential power to a climax. The year began with two debates over the proper level of executive power. In late December 2005, as noted earlier, the New York Times revealed that Bush had authorized the National Security Agency to monitor Americans’ international phone calls and e-mails without court oversight, violating a 1978 law. At the same time, Congress was debating a bill that would make permanent the USA Patriot Act. Almost everyone in the legislature supported reauthorizing the Patriot Act, but most Democrats and some Republicans wanted to amend the bill to include greater oversight provisions forcing the executive branch to periodically tell Congress how it was using its enhanced powers, a move the White House opposed. Seeking to pressure Congress over both issues, the Bush-Cheney administration attacked its critics for being soft on terrorism because they were unwilling to give the president the powers he needed in order to protect the country. It insisted that the wiretapping program was legal and necessary for fighting Al Qaeda, and it also insisted that Congress was endangering America by failing to pass its version of the Patriot Act reauthorization bill.
A very shaky foundation supported the White House’s two-pronged attack on critics of the wiretapping program and the Patriot Act. Beneath the simplistic rhetoric, the administration’s position was self-contradicting. The warrantless surveillance program was legal only if Bush could set his own rules for fighting Al Qaeda on U.S. soil—in which case it was unnecessary to reauthorize the Patriot Act, because the commander in chief could just issue an executive order doing the same thing as the bill. Likewise, if Congress was truly endangering the war on terrorism by holding up the Patriot Act, then statutes must matter after all—in which case the wiretapping program was illegal. In an unsigned, forty-two-page “white paper” about the wiretapping program issued by the Justice Department on January 19, 2006, the Bush-Cheney legal team acknowledged this gap in its logic and tried to paper it over.11 A key 462-word footnote explained that while Bush had the wartime power to set his own rules for investigating Al Qaeda, the Patriot Act was still important because the government needed the act’s extra police powers for “contexts unrelated to terrorism.”12 In other words, the administration’s own position, hidden in the fine print, was that the Patriot Act was superfluous and irrelevant to the war on terrorism—a somewhat absurd stance made necessary by their desire to say the wiretapping program was legal.13 But such nuances were lost amid the sweeping rhetoric as Bush traveled around the country before handpicked crowds and pounded on Congress for its criticism of his wiretapping program and its failure to pass his preferred version of the Patriot Act. “The Patriot Act may be set to expire, but the threats to the United States haven’t expired,” Bush declared at a rally in Kansas.14
