Dispatches from the Creation Wars

Bush’s Unlimited Powers

I just realized I’ve neglected to discuss last week’s stunning statement from Attorney General Alberto Gonzales that he could not rule out President Bush authorizing the warranteless wiretapping of purely domestic calls in the US. This shouldn’t really be a shock to anyone, as it is the logical next step in the administration’s perception of its own powers as essentially limitless. If the administration believes that it has the inherent authority to arbitrarily suspend habeas corpus in specific cases as it sees fit and hold an American citizen indefinitely without filing charges against them or giving them access to an attorney, then surely that inherent authority extends to other protections found in the Bill of Rights as well.

What all this means is that the President believes that if the nation is at war, he can declare any protection found in the bill of rights to be null and void as it applies in specific cases. And he can do it without any oversight whatsoever. And he can do it in secret as well. I have a difficult time coming up with a more perfect definition of a dictatorship than that. Jack Balkin has it exactly right when he writes:

The President’s other argument is that even if the AUMF does not give him this authority, he has inherent constitutional authority, and hence FISA is simply unconstitutional to the extent that it conflicts with the President’s wishes. This means, in turn, that no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law.

Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President’s argument doesn’t distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.

This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers– that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political– the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don’t know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.

Of all places, the administration need only turn to Justice Scalia’s dissent in Hamdi v Rumsfeld, where he forcefully argued that only Congress has the authority to suspend habeas corpus and only then in cases of rebellion or invasion:

The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.

That whirring sound you hear is James Madison spinning in his grave.

Comments

  1. #1 Mark Paris
    April 12, 2006

    It’s time for the Senate to take the next step and recognize what has happend. The Senate should elect George W Bush dictator perpetuus. At that point he can assume all the powers of the Roman dictators: “The superiority of the dictator’s power … consisted chiefly of greater independence from the Senate, more extensive power of punishment without a trial by the people, and complete immunity from being held accountable for his actions.”

  2. #2 mark
    April 12, 2006

    And, best of all, we’re engaged in a war that will never end!

  3. #3 Ed Brayton
    April 12, 2006

    I was thinking that Bush could just come clean and name his horse to the Senate, but frankly I think that horse he rides on in Crawford is only shipped in for photo ops.

  4. #4 Hume's Ghost
    April 12, 2006

    I don’t think people understand the significance of what the PResident and his attorneys are arguing. They’re basically arguing that the AUMF is the equivalent of Article 48 of the WEimar Republic’s 1919 Constitution.

    We all know how the ended up working out for Germany.

  5. #5 raj
    April 12, 2006

    I’m actually amazed at the fact that the Bush administration’s logic regarding illegal wiretap surveillance for foreign communications was also applicable to domestic wiretap surveillance was not readily apparent. Even of US citizens. The link was fairly obvious.

  6. #6 Mark Paris
    April 12, 2006

    I hate to be paranoid, but I’m not sure the “wiretaps” don’t already include all communications that are subject to the kind of wiretapping they are using.

  7. #7 Mike Heath
    April 12, 2006

    Re Mark’s comment, “And, best of all, we’re engaged in a war that will never end!”

    I can’t reemphasize how important that point is to this thread topic.

    The Senate GOP members have lost all credibility if they allow this President this power and they certainly don’t have any appetite to confront him unless we see a grass roots uprising. I’m a lifelong republican who has been sickened by my party’s policies and approach to governing and communicating since W. was inaugarated.

  8. #8 llDayo
    April 12, 2006

    I’m beginning to think George Lucas is a psychic –

    The Emperor: [to the Senate] In order to ensure our security and continuing stability, the Republic will be reorganized into the first Galactic Empire, for a safe and secure society which I assure you will last for ten thousand years!

    Anyone think Bush may just be too much of a Star Wars fan and doesn’t base his policies on reality?

  9. #9 BigDumbChimp
    April 12, 2006

    All hat and no oversight

  10. #10 J-Dog
    April 12, 2006

    This could be the crossing of the Rubicon… but only if our average American can tear himself away from watching reality TV.

  11. #11 Jeff Hebert
    April 12, 2006

    I don’t mind saying that I am truly frightened for our country. This administration is eviscerating fundamental protections and systems that have safeguarded liberty for 200 years. This is no longer a left vs. right, Democrat vs. Republican issue. This is a republic vs. dictatorship issue.

    If at least one of the press, the public, the courts, or the Congress doesn’t wake up soon we’re going to find ourselves living in a monarchy, the Constitution nothing more than a fond memory.

    I’d encourage anyone interested in all of this to visit Glenn Greenwald’s site. He’s been one of the loudest, most consistent, and most articulate voices speaking out on the fundamental issues at stake here.

  12. #12 Craig Pennington
    April 12, 2006

    Re Mark’s comment, “And, best of all, we’re engaged in a war that will never end!”

    I can’t reemphasize how important that point is to this thread topic.

    Yep — it’s a war on a tactic. There is no single representative of the tactic that can sign a treaty. Thus there is no way, except a unilateral executive declaration, to tell us when the war is over. IOW, the current state underwhich the executive is granted unreviewable authority over US persons will end only when the aforementioned executive says so. This is a situation that I find disturbing.

  13. #13 Jeff Hebert
    April 12, 2006

    Yep — it’s a war on a tactic.

    Heck we’ve been involved in a War on Drugs for a long time, why isn’t that as good a pretext for suspending the Constitution as a War on Terror? At least drugs are physical. That’s the beauty of the Bush-Cheney Perpetual War Powers theory, you can declare war on almost anything, and give yourself sole authority to decide when it’s over.

    That Ben Franklin quote applies depressingly well here: “They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

  14. #14 Ginger Yellow
    April 12, 2006

    “The Senate GOP members have lost all credibility if they allow this President this power and they certainly don’t have any appetite to confront him unless we see a grass roots uprising”

    What stuns and depresses me most is that even the Democrats, who apart from Lieberman don’t have Bush Idolisation Syndrome, don’t have any appetite either. They seem perfectly content to let America become a de facto dictatorship and when Feingold simply proposes something as mild as a censure motion, they get angry at him. It truly boggles the mind.

  15. #15 Hume's Ghost
    April 12, 2006

    Greenwald has a book coming out in May based on the posting he’s been doing at his site, too.

    http://www.amazon.com/gp/product/097794400X/sr=8-1/qid=1144858366/ref=pd_bbs_1/102-7487855-4660939?%5Fencoding=UTF8

  16. #16 Hume's Ghost
    April 12, 2006

    Regarding perpetual war, these are the quotes that spring to mind for me:

    “No nation could preserve its freedom in the midst of continual warfare.” – Madison

    “Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other.” – Madison

  17. #17 Troy Britain
    April 12, 2006

    If at least one of the press, the public, the courts, or the Congress doesn’t wake up soon we’re going to find ourselves living in a monarchy, the Constitution nothing more than a fond memory.

    The press has become little more than an echo chamber mindlessly regurgitating whatever the politicians tell them regardless of how manifestly stupid or wrong it might be.

    The much of the public seems to be happy as long as they have their cell phones and can watch American Idol on their big screen televisions.

    As for Congress, they are far too busy trying to see which party can pander more to illegal immigrants to actually represent the citizens they were elected to represent, let alone upholding their oaths to protect and defend the Constitution against all enemies both foreign and domestic.

    Circling around the bowl, it’s all just circling around the bowl…

  18. #18 Chance
    April 12, 2006

    This is no longer a left vs. right, Democrat vs. Republican issue. This is a republic vs. dictatorship issue.

    Thats my take on this as well. The way people can’t take a shit without checking to see what the official party platform is makes one really not hopeful about the future of rational discourse.

  19. #19 Craig Pennington
    April 12, 2006
    Yep — it’s a war on a tactic.

    Heck we’ve been involved in a War on Drugs for a long time, why isn’t that as good a pretext for suspending the Constitution as a War on Terror?

    The war on drugs has been used to gut the 4th amendment. But at least nobody uses drugs anymore. And it’s nice of them to keep the Sudafed behind the counter for me.

  20. #20 Mark Paris
    April 12, 2006

    If this is true (you may already know about this), my paranoid fears appear more grounded in reality:
    http://arstechnica.com/news.ars/post/20060412-6585.html

  21. #21 theberle
    April 12, 2006

    What’s to stop Bush from ignoring the 22nd amendment “in a time of war” and continuing another 4 years (assuming the voters would re-elected him)?

  22. #22 Mark Paris
    April 12, 2006

    Let the Senate vote him dictator perpetuus. That would eliminate the need for those annoying elections.

  23. #23 shargash
    April 12, 2006

    What’s to stop Bush from ignoring the 22nd amendment

    The more “normal” practice would be to suspend elections. Practically speaking, he would probably need to declare martial law first. For that he would need an excuse, say demonstrations protesting an unprovoked nuclear attack on some middle-eastern country like Iran (as improbable as such a thing may sound).

  24. #24 mark
    April 12, 2006

    I think a lot of people must have missed the Gonzalez comment. When I mentioned it to one person, she denied that such a statement could have been made–and she’s a dedicated viewer of Fox News!

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