The imperial presidency strikes back
If you’re one of the people who couldn’t quite follow all the steps in the intricate little folk dance the Bush administration performed around the torture issue this week, don’t feel left out.
Ostensibly, all the back-and-forth was about the legality of waterboarding, an ancient form of torture that involves threatening a captive with death by drowning until he tells you what you want to know. The Central Intelligence Agency now admits that, acting under orders from the White House in 2003 and 2004, it waterboarded three “high value” Al Qaeda prisoners. The CIA says it hasn’t used this particular form of torture in four years.
Still, on Wednesday, a White House spokesman insisted that, in the administration’s view, the practice is perfectly legal and that President Bush might order the CIA to use it again “under certain circumstances.” Then, on Thursday, CIA Director Michael V. Hayden told a congressional committee that waterboarding “is not included in the current program, and in my own view, the view of my lawyers and the Department of Justice, it is not certain that the technique would be considered to be lawful under current statute.”
Meanwhile, in another part of the city, Vice President Dick Cheney was addressing the meat-eaters at the Conservative Political Action Conference. He told them that he was glad the administration had tortured people and that he’d do it again: “Would I support those same decisions again today? You’re damn right I would.”
If all this seems slightly confusing, it’s because it isn’t really about waterboarding or any sort of torture. In the first instance, it’s about the administration’s attempt to legitimize the executive coup d’etat it quietly has undertaken over the last seven years. It’s also designed to put the GOP’s putative presidential nominee, Sen. John McCain (R-Ariz.), on notice that, if he wants help in patching things up with the conservative base, he’d better pay deference to an obscure legal theory called the “unitary executive.”
Whether they’re liberals or conservatives, most constitutional scholars don’t think the unitary executive notion holds historical or legal water. Essentially, it proposes that the Constitution invests sole executive authority in the president and, therefore, neither the legislative nor the judicial branch can check his exercise of executive power, particularly when it comes to his activities as commander in chief.
The last George who thought you could run American affairs that way came from the House of Hanover rather than Bush.
Now, nobody seriously believes that Bush arrived in Washington determined to reshape the presidency along unitary executive lines. Ideologically speaking, he arrived lightly armed, bearing a clutch of warm and fuzzy new right-wing nostrums like “compassionate conservatism” and “faith-based initiatives.” Those notions, of course, came to nothing because ... well, they mean nothing.
On the other hand, Cheney, his staff and his allies arrived packing heavy artillery in the form of the unitary executive theory. They were traumatized by two events, the Vietnam War and the Iran-Contra scandal. The vice president had been President Ford’s chief of staff, and he believed that when Congress acted to redress the abuses of Richard Nixon’s “imperial presidency,” it began a process that had dangerously undermined the authority of the executive branch.
Later, as a congressman from Wyoming, Cheney wrote the House Select Committee’s minority report on Iran-Contra, arguing that the Reagan administration had every legal right to circumvent congressional resolutions and U.S. law to aid the Nicaraguan rebels. The report was widely dismissed at the time because it relied on the idea that congressional overreaching forced the Reagan White House to adopt its course because of its “legitimate frustration with abuses of power and irresolution by the legislative branch.” Cheney, neither a lawyer nor a constitutional scholar, was helped to that extraordinary conclusion by a young staff attorney named David Addington, who recently had come over to the House from the CIA, where he’d worked for William Casey.
As vice president, Cheney has made Addington his chief counsel and, more recently, his chief of staff. In the aftermath of 9/11, Addington seized on the national emergency to advance the unitary executive theory as essential to national security.
But that’s not all.
Since taking office, Bush has made extraordinary use of the executive “signing statement.” This allows a president to sign a bill but to attach a statement saying -- essentially -- that he intends to enforce it in a particular way. Bush has attached about 800 of these statements to legislation he has signed, and, in close to 200 instances, he has explicitly indicated that he intends to enforce a new law only insofar as it does not conflict with the unitary executive theory.
One of those signing statements was attached to McCain’s Detainee Treatment Act of 2005, which passed the Senate 90 to 9 and explicitly outlawed waterboarding. Bush signed it, but he wrote that it would be enforced “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
In other words, not at all.
It’s hard to read this week’s events as anything other than an attempt to put McCain on notice that he’d better acknowledge the unitary executive theory if he wants help with the conservative base. If Cheney, Addington and Bush now think they can do what the North Vietnamese torturers failed to do and cow John McCain into supporting their failing attempt to roll back history to the Nixon administration, they’ve missed the measure of the man.