Column No. 219
Continuing this series, this column focuses on what was the centerpiece of the Bush/Cheney (or Presidency: the destruction of our treasured Constitutional Democracy that (for the most part) has served our nation so well for the 218 years of its existence.
To start, let’s review the seeming conundrum between this worst, while at the same time most successful, President ever. An item on AOL News for June 13, 2007 was headlined: “Bush: Does He Have Any Clout Left?" Gosh. His poll numbers were in the tank and going lower. The Congress was Democratic (by the thickness of the hair on Joe Lieberman’s head which was not much, and no one could figure out what was going on inside Joe Lieberman’s head anyway until the McCain campaign, but the Democrats had majorities in both Houses). By a fairly large margin the public disapproved of his major foreign policy initiative, the War on Iraq. Republican candidates, for the Presidency, the Senate, and the House were beginning to desert him personally, while not so much on policy, except, for some, on the distractive issue of immigration.
So did have any clout left? You bet your sweet pitootie he did. George Bush (and Cheney and Rove), better than any American President since Franklin Delano Roosevelt, understood the power of the Executive Branch under the Constitution. And Bush, unlike any other American President ever, understood how to expand his powers way beyond those specified by the relatively limiting Article II of the Constitution, given that there was little real opposition with both the will and the power to challenge him in his campaign. This campaign was as well planned as it was implemented. It was obviously in the Bush Administration’s plans since the beginning of his Presidency. For example, Cheney had been expounding on the theory of the “Unitary Executive,” (a polite term for dictatorship) since well before the Vice-Presidency was a gleam even in his eye.
The Patriot Act, which clearly gave the President unconstitutional powers to over-ride the Fourth, Fifth and Sixth Amendments to the Constitution on his own authority, is 342 pages of complex legislation. It was introduced to the Congress on Oct. 24, 2001, just 43 days after the 9/11 tragedy. It is highly unlikely that this text could have been written in that period of time, especially given that first someone has to decide to ask the Dept. of Justice to prepare such a bill, that decision has to be reviewed, the concepts have to be developed, it has to be presented to Justice, writing assignments have to be made, drafts prepared and reviewed, everything has to collated, and so on and so forth, and in those days Bush had not by that time had the opportunity to litter the career ranks of the DOJ with his political appointees. In fact, that bill had to have been months in the planning, preparation, and writing, with the Georgites just waiting for the right time to send it to Congress. Then, forgetting all about Committee hearings in both Houses (and in the face of the “terrorist threat,” bipartisanship, anyone?), Congress was then given three days to pass it.
Once upon a time, Karl Rove was uncharacteristically open and blunt about what he and Bush et al were all about. As I noted in a TPJ column of mine published on Dec. 2, 2004, in The Guardian (UK) of November 25, 2004 the US political analyst Sidney Blumenthal had a column about the opening ceremonies for the Clinton Presidential Library in Little Rock, AK. The article was entitled "One gulp and Bush was gone.” Mr. Blumenthal made a number of fascinating observations. One of them was most chilling. In reference to Karl Rove, Blumenthal noted that "offstage, beforehand, Rove and Bush had had their library tours. According to two eyewitnesses, Rove had shown keen interest in everything he saw, and asked questions, including about costs, obviously thinking about a future George W. Bush library and legacy. 'You're not such a scary guy,' joked his guide. 'Yes, I am,' Rove replied. Walking away, he muttered deliberately and loudly: 'I change constitutions, I put churches in schools ...' “On the first, indeed they did. On the second, they tried their damnedest.
One of Bush’s primary goals upon taking power was to establish this new concept of American government, the “Unitary Executive.” The lawyer John Yoo, who did much of the leg-work on the “torture-is-more-than-OK” policy before he left the Department of Justice, has trumpeted his work on it in two books. Cheney talked about it on numerous occasions, and still is, except, of course it doesn’t apply to Pres. Obama: wrong party, wrong color. Their flacks in the Privatized Ministry of Propaganda, like Bill Kristol, late of The New York Times, but always of Murdoch’s Weekly Standard, spoke admiringly and approvingly of Bush’s “near dictatorial powers.” And one does have to observe, although many just do not want to face facts, that he did pretty well established a Unitary Executive.
It was created both by legislation passed by the rubber-stamp Republican Congress Bush had for six years, and other steps he took simply by declaring, unchallenged, his own supposed authority, nowhere mentioned in the Constitution. Just read its Article II, the bulk of which is concerned with the method of electing the President, the power to make treaties and appointments, and the State of the Union Address. There ain’t nothin’ to be found in it like anything they did. And oh yes, it does specify that the President shall “take care that the laws shall be faithfully executed.” So let’s see what all this that is nowhere to be found in Article II has lead to, not necessarily in order of importance.
There was Bush’s conceit that the Constitution gave him the power to issue “Signing Statements” that in turn gave him the power to ignore statutes passed by the Congress. His claim to this power was under some imaginary authority of the office that if he thinks that something in an Act of Congress is unconstitutional, by saying so at the time of signing he can just ignore or even break the law. (It was subsequently revealed by a Government Accountability Office [GAO] study of his “Signing Statements,” that he and a variety of Federal departments did just that.) In his claim of authority to disobey the law because he “thinks,” late in the game, that it is unconstitutional, he failed to note that he already has the power to reject a bill passed by Congress on any grounds he wishes (like, hey, I just don’t like the idea of stem cell research so to the extent that I can, I am going to prevent its benefits from being of use to those who do), before signing it into law. That power is called the veto. He did use that one too with increasing frequency once control of the Congress passed into Democratic hands. But under the Constitution itself, the veto is the only power of challenge to congressionally passed legislation he has. No matter. He changed the Constitution on his own authority.
There were the aforementioned powers of permanent imprisonment without trial of anyone, foreign or US citizen, that he labeled a “terrorist” or “aider and abettor of terrorism.” I have written on numerous occasions of these claimed powers and how they violate the Fourth (search and seizure, probable cause), Fifth (due process) and Sixth (fair trial) Amendments to the Constitution. As I have also noted periodically he “amended” the Constitution’s Article Six on several occasions. The Geneva Conventions are signed and ratified treaties of the United States. Under Article VI they are thus classified as part of the “Supreme Law of the Land.”
No matter. The then Counsel to the President, Alberto Gonzales, later Attorney General, on the prompting of John Yoo, labeled the Geneva Conventions “quaint” and thus totally ignorable by the President when it came to the matter of torture (which of course they never authorized). Ignoring provisions of the Geneva Conventions on the grounds of a determination by one of the signatories that they at some point in time will be considered “quaint” is nowhere to be found in the language of the treaties. Thus the Georgites simply ignored our treaty obligations rather than either abrogating them or attempting to renegotiate them. So much simpler, you know. Thus they violated the Constitution, again. While we are on Article VI, the UN Charter, under its Article 51, prohibits preemptive war. As a ratified treaty obligation of the United States, it too is part of the Supreme Law of the land. And so, the War on Iraq, which Bush himself described as a “preventive war,” otherwise known around the world as “pre-emptive war,” among many other things was unconstitutional. But who cares, as long as the Georgites had their so-called “Unitary Presidency.”
Then there are the unchallenged Executive Orders of a type not provided for by the Constitution. Two of major importance were National Security Presidential Directive/NSPD 51 and Homeland Security Directive/HSPH-20. In them Bush established for himself the power to run all three branches of the Federal government in case of a “national emergency,” as defined and declared by, you guessed it, GW Bush (and/or Dick Cheney?). Thus the President unilaterally placed himself not only above but also in control of the other two branches of government in a situation, “national emergency,” that he gave himself the power to define and declare.
A “failed Presidency?” Hardly. As I noted last two weeks ago, success is measured against goals set and the degree to which they have been achieved. Bush set out to achieve what I have on more than one occasion termed a “coup d’etat in slow motion.” Forget the polls. This man first embraced the powers truly vested in him by the Constitution. Then, he was little challenged by the weak opposition, and strongly supported for the first six years by his lock-step Republican Congress, and ongoing, his in-the-pocket Privatized Ministry of Propaganda. He proceeded to use them, step-by-step and piece-by-piece, to create an Office of the Presidency with powers that no reading of the Constitution could possibly support. That’s success, man.
In future columns we shall review policy specifics.
This column is based in part on my The Political Junkies.net Column No. 156, “The Most Successful American President: George W. Bush, Part 2: The Constitution”