The Unitary Presidency Train

Can we stop this train?
Many of us first heard about the unitary executive theory at the January 2006 confirmation hearings for (now) Supreme Court Justice Samuel Alito. One of the witnesses before the Judiciary Committee, Duke University's Professor Erwin Chemerinsky, testified about the idea's roots. To quote the WaPo story,

A crucial question for this committee is, what will be the effect of Samuel
Alito on the Supreme Court?
I want to focus on one area: executive power. I choose this area, because no area of constitutional law is likely more important in the years ahead than this.
As you know, in recent years, the Bush administration has made unprecedented claims, expansive presidential power, such as the claim of authority to detain American citizens as enemy combatants without even the Constitution's requirements for warrant, grand jury indictment or trial by jury; the claim of authority to torture human beings in violation of international law; the claim of authority to eavesdrop on conversations of Americans without complying with the Fourth Amendment or the Foreign Intelligence Surveillance Act; the claim of authority to hold American citizens indefinitely, and citizens of other countries indefinitely, as enemy combatants.
My goal here isn't to discuss the merits of any of these issues; instead, to point to the fact that separation of powers is likely to be an enormously important issue in the years ahead. And, of course, there's no need to remind this body of the crucial role the checks and balance separation of powers play in our Constitution's structure.
. . . A key question for this committee is whether Samuel Alito will continue this tradition of enforcing checks and balances, or whether he'll be a rubber stamp for presidential power.

Originating point revealed - TruthOut's Jason Leopold is a great news resource about the incredible revelation that our current president had direct involvement in the Scooter Libby/CIA leak case. (Hat-tip to "houndog" at DailyKos for the link). To quote from the piece,

Attorneys and current and former White House officials close to the investigation into the leak of covert CIA operative Valerie Plame Wilson said Thursday that President Bush gave Vice President Dick Cheney the authorization in mid-June 2003 to disclose a portion of the highly sensitive National Intelligence Estimate to Washington Post reporter Bob Woodward and former New York Times reporter Judith Miller.
. . . The officials, some of whom are attorneys close to the case, added that more than two dozen emails that the vice president's office said it recently discovered and handed over to leak investigators in February show that President Bush was kept up to date about the circumstances surrounding the effort to discredit former Ambassador Joseph Wilson.
The sources indicated that the leak probe is now winding down, and that soon, new information will emerge from the special counsel's office that will prove President Bush had prior knowledge of the White House campaign to discredit Plame Wilson's husband, former Ambassador Joseph Wilson, who accused the administration of "twisting" intelligence on the Iraqi threat in order to win public support for the war.
. . . In the court filing, Special Prosecutor Patrick Fitzgerald wrote that Cheney's former chief of staff, I. Lewis "Scooter" Libby, "testified that he was specifically
authorized in advance of the meeting to disclose the key judgments of the classified NIE to [former New York Times reporter Judith] Miller on that occasion because it was thought that the NIE was 'pretty definitive' against what Ambassador Wilson had said and that the Vice President thought that it was 'very important' for the key judgments of the NIE to come out."

Right on track - Steve Clemons at The Washington Note asks, "Does the president plan to fire himself?" And in an earlier post, he gets to the real heart of the matter, the concept of a "unitary executive." To quote (Steve's link),

Most often, the winning tag-team has been Cheney-Rumsfeld over all others. Cheney's team have been the architects of both a kind of Presidency that is exactly what the Roman "dictatorships" were defined as -- a temporary provision of unchecked executive power to a ruler -- as well as the mercurial rise in power of the Office of the Vice President. And Cheney's team is the scary sort of lot that is hell-bent on establishing a kind of permanence to their power that threatens in very, very real terms the genuineness of our democracy.
Roman dictators still had constraints on what they could do. For instance, absolute authority was granted for distinct periods of time. Certain informal norms of continued consultations with the Roman Senate continued during the period of dictatorship.
The word "dictator" in modern language implies far vaster power and many negative connotations than the Roman application of the concept carried with it. Nonetheless, Bush has become the epitome of a Roman dictator in the 21st century in his assertion of "unitary executive" authority which this White House has argued has "inherent and limitless powers in his role as commander in chief, above the system of checks and balances." The problem is that unlike Rome, where the Senate granted he dictator great powers, Congress has not -- in fact -- given Bush the authority
to operate beyond his Constitutional authority. Bush has, instead, asserted that authority and taunted Congress to stop him.
This power grab should dominate our media and our civic discourse. Our President -- via a deranged, anti-democratic team of power-obsessed thugs in Vice President Cheney's office -- is engaged in a clear assault on the core architectural joists of American democracy.

Switching to a new track - The New York Times just published an article describing further assertion of presidential power. This time the Attorney General, Alberto Gonzales testified before the House Judiciary Committee that the president might have the authority for warrentless wiretaps solely within U.S. borders. To quote,

Attorney General Alberto R. Gonzales suggested on Thursday for the first time that the president might have the legal authority to order wiretapping without a warrant on communications between Americans that occur exclusively within the United
States.
"I'm not going to rule it out," Mr. Gonzales said when asked about that possibility at a House Judiciary Committee hearing.
The attorney general made his comments, which critics said reflected a broadened view of the president's authority, as President Bush offered another strong defense of his decision to authorize the National Security Agency to eavesdrop without warrants on international calls and e-mail messages to or from the United States.

End of the line ? The Common Dreams newsletter asks, "Why No Outrage? Bush Deserves Censure." To quote the April 4 article,

Warrants are required. The Foreign Intelligence Surveillance Act plainly requires warrants. The judges overseeing it are not stinting with them, and the law makes room for red-hot cases that need immediate action. Warrants can be secured after the fact.
Bush instead insists the law doesn't apply to him because as commander-in-chief he has wartime power to ignore any law he finds bothersome. An inconvenient statute against torturing prisoners? Poof, it is blown away, like a dandelion gone to seed.
Bush's two attorneys general, John Ashcroft and Alberto Gonzales, have shilled for this astonishing assertion.
Remember that George Washington nixed "His Excellency" as a presidential honorific in favor of the plain "Mr. President." Not this guy. Although he came to office championing, he said, humility, Bush and those dancing court to him have come up with the scary concept of the "unitary executive" or "unitary presidency." That means, in effect, that he can do whatever he jolly well pleases. From just moments after Sept. 11, Bush has said this "war" will take long years and we probably won't even know exactly when it has ended. That sounds right.

Itinerary Revealed - Here is my chilling thought. What if the "unitary" theory is what is behind the war in Iraq? This is what I mean: Much of what the president defines as "inherent power" depends on his authority as commander in chief during a time of war. Taking us to war in Afghanistan following the attacks of 9/11 was, in my opinion, a normal and justified response. But then taking us into the war in Iraq was completely unjustified. It would be justified to the theorists, however, if it were to keep the unitary presidency train chugging merrily along. The war will be going on for such a long time that, "The next president," according to our current president, "will decide when the troops come home." That would cover it.
It is now your turn, Senator Kerry. But that subject is for my post tomorrow.
Tags: unitary executive theory Bush administration CIA leak investigation Imperial presidency