COMMENTARY:

Bush's Bogus Theory of Absolute Power

Earlier this year, members of Congress anguished publicly over how many of the original USA PATRIOT Act surveillance powers should be renewed. A bipartisan agreement was finally reached, giving the White House almost everything it wanted. As part of the deal to renew the Patriot Act, Bush administration officials agreed to provide Congress more details on how the new powers were being used.

However, Bush reneged in a "signing statement" quietly released after a heavily hyped White House signing ceremony on March 9. He decreed that he was entitled to withhold any information that would "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties." He announced that he would interpret any provision in the law obliging notifying Congress "in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information."

In other words, any provision of the law that requires disclosure is presumptively null and void. The crux of the "unitary executive" is that all power rests in the president, and that "checks and balances" are an archaic relic. This is the same "principle" the Bush administration invoked to deny Congress everything from Iraqi war plans to the records of the Cheney Energy Task Force. Bush has invoked the "unitary executive" doctrine almost a hundred times since taking office, according to a study by Miami University professor Christopher Kelley.

One of the starkest statements of this theory came in the confidential August 2002 Justice Department/White House memo justifying torture. That memo revealed, "In light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas." And even if Congress did try to explicitly restrain executive power, any such law would be unconstitutional because of the inherent power vested in the presidency, according to the memo. When he was White House counsel, Alberto Gonzales spoke of a "commander-in-chief override" to justify scorning the Anti-Torture Act.

The Bush administration's sense of entitlement is obvious from the ongoing controversy over warrantless National Security Agency wiretaps of Americans. Such wiretaps are clearly prohibited by the 1978 Foreign Intelligence Surveillance Act. Yet Bush declared that he is entitled to order such wiretaps because of the inherent authority of the presidency.

The administration's attitude toward both the law and Congress was stark in the responses recently delivered to congressional questions on the scope and nature of the NSA warrantless wiretap program.

The basic answer to almost all the questions was, "None of your business." Again and again, the White House declared that "decisions about what communications to intercept are made by professional intelligence officers." Apparently, the job titles of the NSA officials automatically negate the Fourth Amendment's requirement for a warrant before the feds can intrude.

The Bush administration has claimed that the wiretaps are "legal" because of the president's duty to protect America. Democratic members of the House Judiciary Committee asked, "What is the limiting principle of the president's claimed inherent authority as commander in chief?"

The administration replied, "In light of the strictly limited nature of the Terrorist Surveillance Program, we do not think it a useful or a practical exercise to engage in speculation about the limits of the president's authority as commander in chief."

At this point, Americans can only guess which laws Bush feels obliged to obey. According to Newsweek, Steven Bradbury, head of the Justice Department's Office of Legal Counsel, recently informed the Senate Intelligence Committee that Bush could order killings of suspected terrorists within the United States.

Americans cannot expect to have good presidents if presidents are permitted to make themselves czars. The "unitary executive" theory is simply another in a long series of intellectual cons crafted to trample freedom. The sooner that it is tarred and feathered and ridden out of Washington on a rail, the safer Americans' remaining rights will be.