By Steven Jonas, MD, MPH – July 11, 2007
This column is the second in this series. Its focus is
on the centerpiece of the BushCheney (or CheneyBush, whichever you prefer)
Presidency: the destruction of our treasured Constitutional Democracy that (for
the most part) has served our nation so well for the 218 years of its
existence.
To start, let’s review the seeming conundrum between this
worst, while at the same time most successful, President ever. An item on AOL News for June 13, 2007 was headlined: “Bush: Does He Have Any Clout
Left?" Gosh. His poll numbers are in the tank and going lower.
The Congress is Democratic (by the thickness of the hair on Joe Lieberman’s
head which is not much, and no one can figure out what is going on inside Joe
Lieberman’s head, but the Democrats have both Houses at least for the
time-being). By a fairly large margin the public disapproves of his major
foreign policy initiative, the War on Iraq. Republican candidates, for
the Presidency, the Senate, and the House are beginning to desert him
personally (while for the most part they are deserting none of his policies,
except, for some, on the distractive issue of immigration). So does he
have any clout left? You bet your sweet pitootie he does. George
Bush (and Cheney and Rove), better than any American President since Franklin
Delano Roosevelt, understands the power of the Executive Branch under the
Constitution. And this President, unlike any other American President
ever, understands how to expand his powers way beyond those specified by the
relatively limiting Article II of the Constitution, given that there is little
real opposition with both the will and the power to challenge him in his
campaign.
In this context, “him” always means Bush and Cheney and his
staff and Rove and his staff and Bush’s two Attorneys General and their
staffs. For it is they collectively, including lawyers like Ashcroft and
Gonzales and Addington (Cheney’s own Consigliore) and Yoo, who have designed
the campaign. Lawyers, you might ask? How could lawyers, all of who
presumably took Constitutional Law in law school, do this? Did you know
that one third of the men sitting around the table at the Wansee Villa outside
of Berlin on January 20, 1942, when the “Final Solution to the Jewish Question”
as presented by Reinhold Heydrich was fully assented to by leading members of
the Nazi government and industry, were lawyers? And so, with his kind of
lawyers in tow, and sometimes leading the march, from the outset of his
Presidency Bush has proceeded with a gradual campaign of Constitutional
Destruction.
This campaign has been as well planned as it has been implemented,
and it has obviously been in the Bush Administration plans since the beginning
of his Presidency. For example, Cheney had been expounding on the theory
of the “Unitary Executive,” (a polite term for dictatorship) since well before
the Vice-Presidency was a gleam even in his eye (see the recent Washington Post
“Cheney” series). The Patriot Act, which clearly gave the President
unconstitutional powers to over-ride the Fourth, Fifth and Sixth Amendments on
his own authority, is 342 pages of complex legislation. It was introduced
to the Congress on Oct. 24, 2001, just 43 days after the 9/11 tragedy. It
is highly unlikely that this text could have been written in that period of
time, especially given that first someone has to decide to ask the Dept. of
Justice to prepare such a bill, that decision has to be reviewed, the concepts
have to be developed, it has to be presented to Justice, writing assignments
have to be made, drafts prepared and reviewed, everything has to collated, and
so on and so forth, and in those days Bush had not had the opportunity to
litter the career ranks of the DOJ with his political appointees. In
fact, that bill had to have been months in the planning, preparation, and
writing, with the Busheviks just waiting for the right time to send it to
Congress, which then was given three days to pass it.
Once upon a time, Karl Rove was uncharacteristically open
and blunt about what he and Bush et al were all about. As I noted in a
TPJ column of mine published on Dec. 2, 2004, in The Guardian (UK) of
November 25, 2004 the US political analyst Sidney Blumenthal had a column about
the opening ceremonies for the Clinton Presidential Library in Little Rock,
AK. The article was entitled "One gulp and Bush was gone.” In
the article, about the opening ceremonies, Mr. Blumenthal made a number of
fascinating observations. One of them was most chilling. In
reference to Karl Rove, Blumenthal noted that "offstage, beforehand, Rove
and Bush had had their library tours. According to two eyewitnesses, Rove
had shown keen interest in everything he saw, and asked questions, including
about costs, obviously thinking about a future George W. Bush library and
legacy. 'You're not such a scary guy,' joked his guide. 'Yes, I
am,' Rove replied. Walking away, he muttered deliberately and loudly: 'I
change constitutions, I put churches in schools ...' “Indeed he does, and they
do.
One of Bush’s primary goals upon taking power was to
establish this new concept of American government called the “Unitary Executive.”
The lawyer John Yoo, who did much of the leg-work on the
“torture-is-more-than-OK” policy before he left the Department of Justice, has
trumpeted his work in two books. Cheney has talked about it on numerous
occasions. Their flacks in the Privatized Ministry of Propaganda, like
William Kristol on (up or down depending upon your point of view) in the Weekly
Standard, talk admiringly and approvingly of Bush’s “near dictatorial
powers.” And one does have to observe, although many just do not want to
face facts, that he has pretty well established a Unitary Executive. It
has been created both by legislation passed by the rubber-stamp Republican
Congress Bush had for six years, and steps he has taken on his own supposed
authority, nowhere mentioned in the Constitution. Just read its Article
II, the bulk of which is concerned with the method of electing the President,
the power to make treaties and appointments, and the State of the Union
Address. There ain’t nothin’ to be found in it like anything that they
have done. And oh yes, it does specify that the President shall “take
care that the laws shall be faithfully executed.” So let’s see what this
all has lead to, not necessarily in order of importance.
There is Bush’s conceit that the Constitution gives him the
power to issue “Signing Statements” that in turn given him the power to ignore
statutes passed by the Congress. His claim to this power is under some
doctrine that if he thinks that something in an Act of Congress is unconstitutional,
by saying so at the time of signing, he can just ignore or even break the
law. (And apparently, it has been recently revealed by a Government
Accountability Office [GAO] study of his “Signing Statements,” he and a variety
of Federal departments have been doing just that.) He fails to note that
he already has the power to reject a bill passed by Congress on any grounds he
wishes (like, hey, I just don’t like the idea of stem cell research so to the
extent that I can, I am going to prevent its benefits from being of use to
those who do), before signing it into law. That power is called
the veto. He is using that one with increasing frequency now that the
Congress is in Democratic hands. But under the Constitution itself, the
veto is the only power of challenge to congressionally passed legislation he
has. No matter. He has changed the Constitution on his own
authority.
There are the aforementioned powers of permanent
imprisonment without trial of anyone, foreign or US citizen, that he labels a
“terrorist” or “aider and abettor of terrorism.” I have written on
numerous occasions of these powers and how they violate the Fourth (search and
seizure, probable cause), Fifth (due process) and Sixth (fair trial) Amendments
to the Constitution. He has amended Article Six on several
occasions. The Geneva Conventions are signed and ratified treaties of the
United States. Under Article VI they are thus classified as part of the
“Supreme Law of the Land.” No matter. The then Counsel to the President,
now Attorney General, on the prompting of John Yoo, labeled them “quaint” and
thus totally ignorable by the President when it comes to the matter of
torture. Thus the UN Charter, also as a treaty part of the Supreme Law of
the land, which under Article 51 prohibits preemptive war, can be ignored as
well.
Then there are the unchallenged Executive Orders of a type
not provided for by the Constitution. Two of the recent ones are National
Security Presidential Directive/NSPD 51 and Homeland Security Directive/HSPH-20
in which the President established for himself the power to run all three
branches of the Federal government in case of a “national emergency,” as
defined and declared by, you guessed, GW Bush (and/or Dick Cheney?). Thus
the President has unilaterally placed himself not only above but also in
control of the other two branches of government in a situation, “national
emergency,” that he has given himself the power to define and declare.
A “failed Presidency?” Hardly. As I noted last
week, success is measured against goals set and the degree to which they have
been achieved. Bush set out to achieve what I have on more than one
occasion termed a “coup d’etat in slow motion.” Forget the polls.
This man first embraced the powers truly vested in him by the Constitution.
Then, little challenged by the weak opposition, and strongly supported for the
first six years by his lock-step Republican Congress, and ongoing, his
in-the-pocket Privatized Ministry of Propaganda, has used them, step-by-step
and piece-by-piece, to create an Office of the Presidency with powers that no
reading of the Constitution can possibly support. That’s success,
man.
More next week on policy specifics.