The seeming irrationality behind the George W. Bush administration's
"against the grain" (and the law) policies on torture, warrantless
domestic surveillance, and now notification of Congress about CIA
covert operations was not irrational at all.
Most experts say that torture is counterproductive because the subject
will tell the interrogator what he or she wants to hear to stop the
pain and because many military people say that it merely revs up the
opposition, gives them no incentive to surrender, and gives them every
incentive to torture U.S. military personnel.
Yet in the face of this mountain of authoritative opinion and the
policy's clear violation of international law and a U.S. criminal
statute against torture, the Bush administration gleefully did it
The 1978 Foreign
Intelligence Surveillance Act (FISA) clearly prohibited surveillance in
the United States without a court-approved warrant and explicitly
stated that it was the only law governing that practice.
The Bush administration, in the wake of 9/11, made no effort to get a
likely willing Congress to change the already flexible law. After all,
if surveillance had been urgently needed to stop a terrorist attack,
the secret and pro-security court could have issued the warrant after
But the Bush
administration strangely chose to flagrantly violate the law and Fourth
Amendment to the Constitution to conduct domestic warrantless searches
Most recently, it has
been revealed that Vice President Dick Cheney told the CIA to violate a
law requiring prompt disclosure of even anticipated covert operations.
The red herring that Republicans are now trying to stand by in defense
of the uncharacteristically silent Cheney -- that the executive branch
must guard intelligence sources and methods -- could apply to a
particular assassination attempt but not the existence of the entire
program over a seven-year period.
Amazingly, Vice President
Cheney -- not even the President -- decided to knowingly and
affirmatively disregard the law.
Are these merely examples of Cheney's or Bush's arrogance? I suppose
arrogance plays a part, but to paraphrase Rahm Emanuel, Barack Obama's
Chief of Staff, no crisis should go unexploited.
Pundits galore, including this one, have railed against the Bush
administration for cynically using the tragedy of 9/11 to invade Iraq.
But fewer have noticed an even worse legacy of the Bush administration
than the Iraqi quagmire.
could be worse than killing U.S. service people and innocent Iraqis?
The unitary theory of the executive, that's what.
Dick Cheney came into office believing that executive power had been
excessively eroded during the Vietnam and Watergate years. Few
reputable scholars believe this nonsense.
Most presidential scholars have concluded that the executive branch has
grown in power vis-a-vis the other governmental branches since the turn
of the 20th century, but really got boosted to an "imperial presidency"
during the Cold War from the Truman presidency onward.
This development is a far cry from the legislative-dominated system
that the nation's founders and the Constitution envisioned. The slight
rollback of executive power during Vietnam and Watergate was only a
momentary pause as the executive juggernaut rolled forth up to the Bush
advocacy of the unitary theory, and evidently convincing his
self-interested boss to buy into it too, meant that the administration
believed that it could use broadly construed commander-in-chief powers
-- another anathema to the founders -- to ignore congressionally passed
laws during "wartime." In dictatorships, we call this "rule by
administration's willful violation of laws had the more sinister
purpose and effect of establishing a "hyper-imperial presidency." This
is the single most important thing that the Bush administration did in
office and the worst.
can already see that in the Obama and probably future administrations,
executive self-restraint will be much harder in the face of the
temptations of this more powerful inherited office, which will be based
on the Bush-era precedents. Fear for the republic.