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Executive Power Grab
Published on Wednesday, December 28, 2005 by the Baltimore Sun
Executive Power Grab
by Steve Chapman
 

Chicago -- President Bush is a bundle of paradoxes. He thinks the scope of the federal government should be limited but the powers of the president should not. He wants judges to interpret the Constitution as the framers did but doesn't think he should be constrained by the framers' intentions.

He attacked Al Gore for trusting government instead of the people, but he insists anyone who wants to defeat terrorism must put absolute faith in the man at the helm of government.

His conservative allies say Mr. Bush is acting to uphold the essential prerogatives of his office. Vice President Dick Cheney says the administration's secret eavesdropping program is justified because "I believe in a strong, robust executive authority, and I think that the world we live in demands it."

But the theory boils down to a consistent and self-serving formula: What's good for Mr. Bush is good for America, and anything that weakens his power weakens the nation. To call this an imperial presidency is unfair to emperors.

Even people who should be on Mr. Bush's side are getting queasy. David Keene, chairman of the American Conservative Union, says that in his efforts to enlarge executive authority, Mr. Bush "has gone too far."

He's not the only one who feels that way. Consider the case of Jose Padilla, a U.S. citizen arrested in 2002 on suspicion of plotting to set off a "dirty bomb." For three years, the administration said he posed such a grave threat that it had the right to detain him without trial as an enemy combatant. In September, the 4th U.S. Circuit Court of Appeals agreed.

But then, rather than risk a review of its policy by the Supreme Court, the administration abandoned its hard-won victory and indicted Mr. Padilla on comparatively minor criminal charges. When it asked the 4th Circuit Court for permission to transfer him from military custody to jail, though, the once-cooperative court flatly refused.

In a decision last week, the judges expressed amazement that the administration suddenly would decide Mr. Padilla could be treated like a common purse snatcher - a reversal that, they said, comes "at substantial cost to the government's credibility." The court's meaning was plain: Either you were lying to us then, or you are lying to us now.

If that's not enough to embarrass the president, the opinion was written by Judge J. Michael Luttig, who was on Mr. Bush's short list for the Supreme Court.

This is hardly the only example of the president demanding powers he doesn't need. When American-born Saudi Yasser Hamdi was captured in Afghanistan, the administration also detained him as an enemy combatant rather than entrust him to the criminal justice system.

But when the Supreme Court said he was entitled to a hearing where he could present evidence on his behalf, the administration decided that was way too much trouble. It freed him and put him on a plane back to Saudi Arabia, where he may plot jihad to his heart's content. Try to follow this logic: Mr. Hamdi was too dangerous to put on trial but not too dangerous to release.

The disclosure that the president authorized secret and probably illegal monitoring of communications between people in the United States and people overseas again raises the question: Why?

The government easily could have gotten search warrants to conduct electronic surveillance of anyone with the slightest possible connection to terrorists. The court that handles such requests hardly ever refuses. But Mr. Bush bridles at the notion that the president should ever have to ask permission of anyone.

He claims he can ignore the law because Congress granted permission when it authorized him to use force against al-Qaida. But we know that can't be true. Attorney General Alberto R. Gonzales says the administration didn't ask for a revision of the law to give the president explicit power to order such wiretaps because Congress - a Republican Congress, mind you - wouldn't have agreed. So the administration decided: Who needs Congress?

What we have now is not a robust executive but a reckless one. At times like this, it's apparent that Mr. Cheney and Mr. Bush want more power not because they need it to protect the nation, but because they want more power. Another paradox: In their conduct of the war on terror, they expect our trust, but they can't be bothered to earn it.

© 2005 The Baltimore Sun

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