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A clear and present danger at home

The Baltimore Sun


The Return of the Imperial Presidency and the Subversion of American Democracy

By Charlie Savage

Little, Brown and Company / 336 pages / $25.99

After Sept. 11, we've been told, everything changed. Civil liberties had to be balanced against personal safety and national security. Since information is power, government officials had to conduct some of their business in secret. And for the duration of "the war on terror," the president had to be free to act rapidly and resolutely, at home and abroad, unfettered by Congress and the courts.

According to Charlie Savage, the legal affairs correspondent for The Boston Globe, al-Qaida's attacks on the Twin Towers and the Pentagon provided cover for a cadre of zealots, led by Vice President Dick Cheney, to concentrate vast powers in the White House. Following the defeat of the United States in Vietnam - and passage of the War Powers Act - some conservatives set aside their qualms about government power, especially in foreign policy. They designed a theory of executive authority, developed a tool kit to implement it and began to fill federal offices with men and women willing to get with the program. With George W. Bush in the White House, they "hatched the plot." Bush's legacy, Savage believes, will reach far beyond the mess in Iraq. The "imperial presidency" poses a clear and present danger to American democracy.

Despite its conspiratorial rhetoric, Takeover is a serious and scathing indictment of the "hidden agenda" of the Bush administration. Savage has not unearthed any startling new revelations. And he tends to view virtually every action in the past seven years - including post-Katrina legislation authorizing the president to declare martial law after a catastrophic event - as a calculated power grab by the executive branch. But his account of information suppression, warrantless wiretapping, torture memos, treaty violations, detention, rendition, a compliant Supreme Court and a supine Congress should command the attention of American citizens concerned about constitutional checks and balances in an era of "perpetual emergency."

The Bush administration, Savage points out, has relied heavily on the "unitary executive theory" to justify its claims about presidential power. Developed in the 1980s by members of the Federalist Society, an ultra-conservative organization, the theory posits that the Founding Fathers gave the commander in chief the power to act beyond the statutory limits set by Congress. They wanted all officials in the executive branch - including those in federal agencies - to be subject to presidential control. After Sept. 11, Cheney aide David Addington and Deputy Assistant Attorney General John Yoo used the theory to argue that neither Congress nor the courts could in any way limit the power of the president to commence war; comply with or ignore international treaties; establish regulations for gathering information relevant to national security; and detain, interrogate, prosecute and punish "enemy combatants."

Savage shows that scholars across the ideological spectrum dismiss the "unitary executive theory" as just plain wrong. It doesn't even pass "the guffaw test." While they label themselves "strict constructionists," advocates of the theory concede that the "inherent powers" of the president must be "inferred" from a Constitution that does not explicitly grant them. And an Everest of evidence from The Federalist Papers and other writings of the Founding Fathers contradicts the theory. Nonetheless, the Bushies brazenly brandish it. With Samuel Alito, a former member of the Federalist Society, on the bench, Savage suggests, the theory may yet pass muster at the Supreme Court.

Nor is the Roberts Court likely to strike down presidential "signing statements," the method by which President Bush has put the theory into practice. Signing statements, Savage points out, are more effective than vetoes. They cannot be overridden by Congress - and they permit the president to pick and choose the provisions of a law he does not want to obey. With the Patriot Act of 2006, renewal of the Foreign Intelligence Surveillance Act and the McCain torture ban, Bush pledged only to "construe" the legislation in a manner consistent "with his constitutional authority to supervise the executive branch." No one seemed to notice the contradictions in the administration's approach: As he warned Congress against endangering national security by holding up legislation, the president insisted that legislation was superfluous. As commander in chief, he had acted - and could and would do so again.

Although he believes that the next president will play an important role in the "unfolding story" of the "imperial presidency," Savage is not sanguine about the future. The Bush-Cheney methods "are now an immutable part of American history - not controversies, but facts." And presidential power "often acts like a one-way ratchet: It can be increased far more easily than it can be reduced." Another terrorist act on American soil might well convince voters that the president needs a free hand. Unless, of course, voters - and their elected representatives - begin to take more seriously the proposition that "eternal vigilance is the price of liberty."

Glenn C. Altschuler is the Thomas and Dorothy Litwin professor of American studies at Cornell University.

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