Will the U.S. Constitution survive George W. Bush?

Constitutional scholars warn that the American system of checks and balances has grown perilously out of whack

The American form of government is a balancing act, and none too subtle. For more than two centuries, the executive, legislative and judicial branches have engaged in a three-way tug of war guided by a simple and resilient document, the Constitution of the United States. It has seen us through the birth of a nation, the Civil War and the struggle for equal rights, always managing to restore the nation’s equilibrium no matter how fractious the disagreement.Today, that equilibrium is threatened by a wartime president who has pushed to the extreme the limits of executive power the Constitution grants the commander in chief of U.S. military forces.

Previous presidents have expanded executive power during wartime, but those wars ended, and stability returned. However, President George W. Bush’s “War on Terror” promises a conflict without end, and there seems to be no limit to the executive powers his legal advisers have conjured from modern democracy’s most hallowed document.

Benjamin Franklin’s dictum that those who would give up liberty for security deserve neither has been thrown by the wayside. The result is that an increasing number of constitutional scholars, policy-makers and politicians warn that the balance of powers has grown perilously out of whack. Some are even calling it a constitutional crisis.

While we all share responsibility for this crisis—if that’s what it is—the brunt of it currently rests on the shoulders of a single man, Supreme Court Justice Anthony Kennedy.

To say The Wall Street Journal editorial board is upset with Justice Kennedy is to put it mildly. The moderate conservative authored the 5-4 majority decision last month in Boumediene v. Bush, which found that an Algerian native held at Guantanamo Bay is entitled to the habeas corpus provisions of the Constitution. That is, he is eligible to seek legal relief from unlawful detention.

Also known as the Great Writ, the history of habeus corpus goes back more than 700 years to English common law. The Journal minced no words in its critique of the court’s decision to extend the writ to alleged enemy combatants held at Guantanamo:

“Justice Kennedy’s opinion is full of self-applause about his defense of the Great Writ and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil—perhaps one enabled by a terrorist released under the Kennedy rules—the public demand for security will trample the Constitutional delicacies of Boumediene.”

It’s the same hard line the Bush administration and its supporters, Republicans and Democrats alike, have been pushing for seven years, ever since the terrorist attacks on Sept. 11, 2001. You can have liberty or security, but not both. Ben Franklin is rolling in his grave.

In the Constitution, the president has found license to “detain” prisoners of war and suspected terrorists indefinitely, including U.S. citizens, without legal recourse or contact with the outside world. When confessions were not forthcoming, the Bush legal team found justification for torturing detainees, conflicting with U.S. and international law. The powers vested in the “unitary executive” even allow Bush to violate the Foreign Intelligence Surveillance Act and eavesdrop on the telephone and internet conversations of American citizens.

This is not your father’s Constitution. It’s not even Bush’s father’s Constitution.

In the aftermath of 9/11, the Bush administration harnessed the nation’s fear, and bloodlust rode roughshod over the Constitution. Congress cowered before the tinhorn Churchill barking malapropisms from the rubble pile, granting him a blank check to remake the map of the Middle East.

As George W. Bush approaches the twilight of his administration, he continues to do what he wants, and his successor stands to assume the same expanded executive powers. While the administration’s most strident critics come from the left side of the aisle, libertarians and even a few Republicans have joined the fight. They say if the constitutional system of checks and balances is not righted, and quickly, our democracy may be in danger.

That sounds a lot like a crisis. But things may not be as bleak as they seem, according to Reno attorney David Thompson, a scholar of the Constitution and publisher of the online newspaper The Nevada Observer, nevadaobserver.com.

“The U.S. has been in a constitutional crisis since the Civil War,” he said, taking a deep breath. “Many current government practices are completely at odds with the Constitution as it was written, conceived and ratified. This is just one of many, many problems. The other problems deal with, for example, interpretations of the Bill of Rights and the unwillingness to interpret provisions of the Bill of Rights. The problem deals with questions of, for example, ‘what is spending for the general welfare?’ The constitutional problem is pervasive in our present form of government.

“For purposes of this conversation, I don’t think it’s a crisis. I think what we have is a case in which one president is attempting to usurp a power, or series of powers, that aren’t confided to him or, for that matter, anyone else in the government of the United States by our written Constitution. … He’s not the first, and he won’t be the last president to do it. We’ve had members of Congress try to do it; we’ve had coalitions in the Supreme Court try to do it. You know … power corrupts.”


The decider in chief
In January 2001, George W. Bush took the oath of office as prescribed in Article II of the Constitution, swearing to faithfully execute the office of president and to the best of his ability preserve, protect and defend the Constitution of the United States.

John Yoo helped provide legal cover for CIA operatives to use inhumane treatment to extract information from prisoners, which is prohibited by U.S. and international law.

The meaning of those simple words would be utterly altered by the deadly terrorist attacks on Sept. 11.

Exactly one week after the attack, Congress passed the Authorization for Use of Military Force Against Terrorists, permitting the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The “War on Terror” had begun. In October 2001, coalition forces began bombarding Afghanistan. Congress hastily passed the PATRIOT Act, which expanded the power of law enforcement agencies to invade Americans’ privacy.

It wasn’t enough for Bush. The administration’s next move, which came as it prepared to process the influx of prisoners captured on the battlefields of Afghanistan, continues to perplex McGeorge School of Law professor John Sims.

“A sensible person trying to devise procedures to deal with enemy combatants would have said, well, you know, we have a whole courts-martial system that deals with military matters and is very sophisticated and is frequently used,” Sims explained over coffee. “Why don’t we get these experts together and work out procedures that will give us as much secrecy as we need in the carrying out of these prosecutions, that will be fair enough to withstand court scrutiny, that will be relatively quick, and we’ll get Congress to approve them? We know with their mood after 9/11, Congress would have signed off on anything.”

But that never happened. Instead, the hardcore neoconservatives in the Bush administration made new rules up as they went along. Secretary of Defense Donald Rumsfeld and Vice President Dick Cheney, armed with dubious legal advice provided by David Addington, UC Berkeley School of Law professor John Yoo, and Justice Department legal counsel Jay Bybee of Las Vegas ("Tortuous policy,” RN&R, Jan. 13, 2003), muscled the legal experts from the Judge Advocate General Corps and the State and Defense departments out of the way and created a new kind of military prison where suspects could be interrogated and held indefinitely without outside world contact: Guantanamo Bay in Cuba.

Bush ignored international outcry over the prison; impetuous fiat became the administration’s modus operandi, John Yoo one of its chief legal enablers. Sims has debated Yoo twice at local Federalist Society events. Last November, they squared off over the issue of warrantless wiretapping. But in the early days of the war on terror, then White House Counsel Alberto Gonzalez tasked Yoo with providing legal cover for CIA operatives to use inhumane treatment to extract information from prisoners, which is prohibited by U.S. and international law. Yoo found cover by twisting the Constitution to suit the Bush administration’s needs. Gonzalez signed off on the “torture memo” just as prisoners began arriving in Guantanamo.

“Their bottom line is this,” Sims elaborated, “if the president tells you to torture someone because he needs to do that as commander in chief, well then, even if the statute says it’s a crime, the statute must be unconstitutional. It’s constitutional law flipped on its head.”

Here, the outlines of the constitutional crisis are clearly delineated.

“The president is violating the law,” Sims said. “Torture is illegal. The U.S., through its treaty commitments and by statute, has outlawed torture, and the president is directing his subordinates to commit torture.”

Sims granted that it’s possible that a statute—even the U.S. prohibition against torture—might be invalid because, say, it violates the wartime authority granted to the commander in chief. But no one individual branch may unilaterally decide what those statutes are. The Constitution provides a remedy for that.

“The one legitimate response by a president who sees a law that is a problem is to formulate a proposal for changing the law and present it to Congress and argue for it,” Sims said. “When your party controls both houses, that shouldn’t be an unattractive path.”

In fact, no matter who controls Congress, it’s the path demanded by Article II and implicit in the oath of office Bush gave to take care that all laws are faithfully executed. [page]

Congress falls down
After the 9/11 attack, Bush used all of his newfound power, real and imaginary, to direct the country’s anger and military might against Iraq, a country that had nothing to do with the terrorist attack on America.

Iraq had long been in the sights of the neocons that dominate the Bush administration, who view the country as a stepping stone to a “new American century” that will see America rise as the one and only true superpower. Sept. 11 was the new Pearl Harbor the neocons had longed for, and they wasted little time building a false case to justify an invasion.

When weapons inspectors and other intelligence sources reported that Iraq had no discernable weapons-of-mass-destruction program and no known connections to Al Qaeda, administration officials from the president on down conjured facts out of thin air, generated false intelligence reports from the vice president’s Office of Special Plans and disseminated bogus WMD stories to willing mainstream media outlets, such as The New York Times and The Washington Post.

Although easily debunked, the propaganda worked on a nation still trying to decipher the Homeland Security’s color-coded terrorist-attack warning system. In October 2002, a cowed Congress granted Bush his second authorization to use military force, this time against Iraq.

Secretary of Defense Donald Rumsfeld helped create a new kind of military prison: Guantanamo Bay in Cuba.

But despite Congress’s failure to keep Bush in check, the Constitution provides another remedy: elections. By the time the 2004 contest rolled around, public support for the war in Iraq was waning. Nevertheless, Democrats in Congress, many of whom had approved the use of force against their own better judgment, approached the election cautiously, fearful of ceding the terrorism issue to the commander in chief. Had he been more bold, Sen. John Kerry and the Democrats might have defeated Bush, halting the constitutional crisis in its tracks. Instead, they lost a narrow contest that saw the Republicans retain majorities in both houses.

It wasn’t long before the 2006 midterm election swept Democrats into power in both houses of Congress and provided clear-cut proof that the public was fed up with Bush’s executive overreach. Yet progressives, libertarians and even old-school paleoconservatives, such as Pat Buchanan, who hoped the Democrats might curb Bush’s wartime power grab would be sadly disappointed. Congress continued to fund the unpopular war, and with relatively few exceptions, Democrats continued to dance to Bush’s beat.

It’s the same old fear-driven equation that’s been in effect since 9/11: What do you want, liberty or security? You can’t have both.

Last week’s debate over the proposed amendments to the Foreign Intelligence Surveillance Act offered yet another case in point. The FISA controversy began in late 2005, when The New York Times disclosed that the National Security Agency, with the complicacy of the major telecommunications carriers, had launched a massive new electronic-surveillance program after 9/11 that may have violated the privacy of millions of American citizens without obtaining warrants as required by statute. At a Senate Judiciary Committee in January 2006, Attorney General Alberto Gonzalez testified that the administration “commenced down this road five years ago because of a belief that we could not do what we felt was necessary to protect this country under FISA. That is why the president relied upon his inherent authority under the Constitution.”

Except, of course, the president has no inherent constitutional authority to break the laws of the United States anytime he feels like it. The president is not above the law. That’s why the telecommunications companies that assisted the administration desperately sought backdated immunity to protect themselves from the myriad of lawsuits that have sprung up across the nation.

The new legislation passed last week not only provides the blanket immunity the telecoms were seeking, it also grants even more surveillance power to the president, allowing the government to sweep up international traffic and then filter it for anything that looks interesting—including the communications of law-abiding American citizens.

Court is in session
While it’s easy to think of Supreme Court Justices as omniscient masters of objectivity looming over the bench, there’s an “enormous political dimension to the court,” explained UC Davis School of Law professor Alan Brownstein, a nationally recognized constitutional law scholar.

“What’s important here is not only do the justices have different methodologies for interpreting the Constitution,” Brownstein said, “they bring different values to the court. Their own [individual] understanding of social reality is very, very different.”

Those differences color the way many important cases are decided—and generate a lot of paperwork.

“Get a copy of the United States Constitution and look at it, see how small it is,” Brownstein said. “Then go to a law library and look at the 600 volumes of the United States courts, which are interpreting the Constitution. There’s no objective way to get from this very limited document to these extraordinarily complex cases.”

In any event, a majority of the justices in Boumediene were capable of seeing past Scalia’s fear-mongering to the obvious: The United States maintains de facto sovereignty over Guantanamo, and therefore, the administration must abide by the Constitution in the treatment of the prisoners held there.

“U.S. officials freely admitted that they had chosen Guantanamo for reasons of extraterritoriality,” writes UC Davis law professor Diane Marie Amann. “That is, because they believed that no court of the United States, let alone any enforcement mechanism, possessed the power to ensure that non-Americans at the offshore base received the benefits of the rule of law.”

As it turns out, U.S. officials were wrong on more than just that count. The Bush administration rejected review of detainee cases by international groups such as the Inter-American Commission on Human Rights and the International Committee of the Red Cross. The Supreme Court initially declined to hear the federal appeals filed by the detainees. But then the court reversed course in the summer of 2004, resulting in a trio of rulings that Amann refers to as the “detention trilogy.”

In the first ruling, Rasul v. Bush, the court held that U.S. courts do have jurisdiction to consider whether Guantanamo detainees are being held lawfully. The remaining two cases involved a pair of U.S. citizens defined as “enemy combatants,” Jose Padilla and Yaser Esam Hamdi. The court declined to rule in Rumsfeld v. Padilla, but in Bush v. Hamdi, the court found that while Bush, as commander in chief, has the power to detain enemy combatants, Hamdi is entitled to due process, including the right to an attorney and to confront the facts against him in an impartial court.

“The detention trilogy of June 2004 thus put an end to the period in which the executive had enjoyed unfettered discretion to detain and interrogate, inside and outside the United States, persons it considered enemies in what it calls its war on terror,” Amann writes.

In the long run, the men and the women who serve on the Supreme Court are the final bulwark protecting the Constitution—our liberty and our security—from out-of-control executives such as George W. Bush, in peace or in wartime. As we’re reminded every time a presidential election rolls around, the most important decision the executive makes is his or her nominees to the highest court in the land.

Sims and Brownstein expressed concern that the Supreme Court is in danger of tipping decidedly to the right, should Republican presidential nominee John McCain win November’s election. But for now, Justice Anthony Kennedy is the man of the moment, the swing vote on a court that could go either way, conservative or liberal, depending on the case before it.

Sounds like just the kind of guy you’d want around in a crisis—assuming there is one, a point Sims isn’t willing to concede.

“The Supreme Court has been rendering controversial decisions for its entire history,” Sims said. “People object to particular decisions, but in general, we accept the process. This is our process. After the 2000 election, there were many who said the Supreme Court would never be respected again; this was an unforgivable decision, the election’s been stolen, nothing like this has ever happened in our history. Today, the same people, in terms of these detention cases, are mostly saying thank heaven we’ve got the Supreme Court to stand up to the administration, protect the separation of powers and defend the rule of law.”

It’s something to think about as we move into the November elections. The Constitution didn’t stop working because the Bush administration chose to ignore it for the past seven years. Elections have not been put on hold. Congress and the Supreme Court are on the case, and come November, the 22nd Amendment to the U.S. Constitution will do as it was intended—protect this country against a potentially dictatorial executive and offer the opportunity to restore the country to its three-way tug of war.